Cox v. Lykes Bros.

• Decision Date: 19 February 1924
• Citation: 237 N.Y. 376,143 N.E. 226
• Parties: COX v. LYKES BROTHERS et al.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 376

143 N.E. 226

COX

v.LYKES BROTHERS et al.

Court of Appeals of New York.

Feb. 19, 1924.

Action by Herbert Cox against Lykes Bros. in which the United States Shipping Board Emergency Fleet Corporation was impleaded. From a judgment of the Appellate Division (204 App. Div. 442,198 N. Y. Supp. 178) affirming a determination of the Appellate Term (189 N. Y. Supp. 268), which reversed a judgment of the Municipal Court of the City of New York for plaintiff, and dismissed the complaint, plaintiff appeals by permission.

Judgment of Appellate Division and determination of the Appellate Term reversed, and judgment of Municipal Court affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Silas B. Axtell, of New York City, for appellant.

Ray Rood Allen, and Roy H. Caldwell, both of New York City, for respondent.

CARDOZO, J.

Plaintiff, a seaman, serving as chief steward on a merchant vessel, the Bethlehem Bridge, left Galveston, Tex., on July 28, 1919, and after a voyage to foreign shores returned to the home port on January 22, 1920. The Bethlehem Bridge, though registered in the name of the United States of America, was operated by the United States Shipping Board Emergency Fleet Corporation through Lykes Bros. as agents, and the principal undertook, not only to man, equip, victual, and supply the vessel, but also to provide and pay for all provisions and wages of the masters, officers, and crew. Upon arrival at Galveston all the members of the crew with the exception of the plaintiff,were discharged and paid at once. The plaintiff's wages were withheld till March 24, 1920, when payment up to January 22 was made in accordance with the articles. Upon receiving this payment, plaintiff executed a release. Section 4529 of the United State Revised Statutes (7 U. S. Compiled Statutes, § 8320, p. 8817) fixes the time within which wages must be paid, and then provides as follows:

‘Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court.’

Plaintiff sues for the difference between the wages paid and those due under the statute.

[1] The jurisdiction of the state courts is the first question to be determined. Section 256 of the Judicial Code (U. S. C.omp. St. § 1233) confers upon the courts of the United States exclusive jurisdiction ‘of all suits for penalties and forfeitures incurred under the laws of the United States.’ The Appellate Division found the present suit to be one for a penalty or forfeiture within the meaning of this statute. We do not so regard it. Congress has expressly said that the extra compensation, when due, ‘shall be recoverable as wages.’ This would seem decisive, without more, that in determining the bounds of jurisdiction it is not to be classified as a penalty. There was no thought that the state courts, which have undoubted jurisdiction to give judgment for wages in the strict sense, should be shorn of jurisdiction to give judgment for the statutory incidents. This conclusion is fortified when we search for the purpose of the statute. The purpose , or at least the predominant one, was not punishment of the master or owner, but compensation to the seaman. Delay means loss of opportunity to ship upon another vessel. It means hardship during the term of waiting, the sufferer often improvident, and stranded far from home.

‘In all fairness he should recover more than the amount due him for wages earned.’ Calvin v. Huntley, 178 Mass. 29, 32, 59 N. E. 435, 436.

How much this extra amount should be would be often a troublesome question if it were left open in every case.

‘Hence it might be deemed advisable to have this indefinite element made definite by a general law with reference to which the parties may conclusively be presumed to have contracted, and which therefore should be taken to be the law of the contract.’ Calvin v. Huntley, supra; Gerber v. Spencer (C. C. A.) 278 Fed. 886, 887;Covert v. British Brig Wexford (D. C.) 3 Fed. 577, 578, 579.

[2] The case cited from Massachusetts is authority for the ruling that an action for extra wages under section 4527 of the United States Revised Statutes (U. S. Comp. St. § 8318), which does not differ in essentials from section 4529, may be maintained in the state courts, and is not an action for a penalty. In harmony with this ruling are decisions of the Supreme Court of the United States, excluding from the class of penalties an action against the infringer of the copy-right of a dramatic composition, who must pay not less than $100 for the first and $50 for every subsequent performance (Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 109), and an action under the anti-trust law for the recovery of treble damages (Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390, 27 Sup. Ct. 65, 51 L. Ed. 241, affirming 127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 721). The defendant refers to Pacific Mail S. S. Co. v. Schmidt, 241 U. S. 245, 36 Sup. Ct. 581, 60 L. Ed. 982, where, in the discussion of a different question, the extra payment due under section 4529 is spoken of as a penalty, which, of course, in a loose sense it is, since it is an exaction dependent upon a default not sufficiently excused. Forms and phrases of this kind, accurate enough for rough identification or convenient description, do not carry us very far in the solution of our problem. This is emphasized when we recall that the writer of the opinion in Pacific Mail S. S. Co. v. Schmidt concurred, while a member of the Supreme Judicial Court of Massachusetts, in the judgment rendered by that court in Calvin v. Huntley. The defendant refers also to Missouri Pac. R. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087, which had to do with the liability of the United States Director-General of Railroads under a statute of Arkansas. By that statute, if wages are not paid to an employee of a railroad within seven days, upon his discharge with or without cause, then ‘as a penalty for such non-payment,’ the wages shall continue at the same rate till paid. The question was whether this was a liability which Congress intended that the federal government should assume. We are to remember that the same provision may be penal as to the offender and remedial as to the sufferer. Huntington v. Attrill, 146 U. S. 657, 667, 13 Sup. Ct. 224, 36 L. Ed. 1123;Loucks v. Standard Oil Co. of New York, 224 N. Y. 99, 120 N. E. 198. The nature of the problem will determine whether we are to take one viewpoint or the other. From the viewpoint of the government the court found this provision predominantly penal, as well it might, not only because the statute so declared, but also because of the differing situation of seamen on the one hand and railroad workers on the other. Here Congress, imposing a liability for the benefit of seamen, has put it on the same plane as a liability for wages, and has said that the two shall be enforceable together.

The next question to be considered is the effect of the release. Section 4552 of the United States Revised Statutes (U. S. Comp. St. § 8341) provides that upon the completion of a voyage the master and each seaman shall sign a mutual release.

‘Such release, so signed and attested, shall operate as a mutual discharge and settlement of all demands for wages between the parties thereto, on account of wages, in respect of the past voyage or engagement.’

While this provision stood alone, the courts held that the release was conclusive upon a...