Davis v. Adams

• Decision Date: 21 May 1900
• Docket Number: 575.
• Parties: DAVIS v. ADAMS.
• Court: U.S. Court of Appeals — Ninth Circuit

102 F. 520

DAVIS v. ADAMS.

No. 575.

United States Court of Appeals, Ninth Circuit.

May 21, 1900

In Admiralty. On March 13, 1899, a libel was filed by the appellant in the district court of the United States for the Northern district of California, in personam, against William J. Adams, appellee herein, as owner of the barkentine Retriever, to recover damages not very clearly stated, but which appear to be claimed as wages for services rendered on board the vessel for one month at $35 per month; also damages at the rate of $35 per month for 14 months after the appellant had been discharged from the vessel, and while he was unable to obtain other employment; also damages for amount expended for board and lodgings during the latter period at $20 per month, and for damages by reason of exposure and want of necessary food and clothing in the sum of $2,000. According to the testimony on the part of the appellant, the facts are these: On May 10, 1895, and while a strike of the sailors' union was in progress in the port of San Francisco, rendering it very difficult for shipowners and masters to secure the services of seamen, the appellant who never had been to sea, was approached by one John Curtin who asked him if he wanted a job, and introduced him to Capt Bogan, master of the Retriever. He was induced by said Curtin and Capt. Bogan to sign papers, which were represented to him to be only for the purpose of giving the person before whom the same were signed, purporting to be a United States shipping commissioner, something by which the said alleged shipping commissioner could keep track of him. Capt. Bogan told him, when he demurred to going on board ship for want of experience, that all he would have to do would be to help load lumber, and that he would receive therefor $25 per month and board. Under these representations, appellant went on board the Retriever, then at anchor in the Bay of San Francisco. Five days thereafter, having then secured a full crew, the vessel proceeded upon her voyage to Port Hadlock on Puget Sound, and during the trip the appellant remained on board, cleaning woodwork, sawing wood, and performing such other work as was required of him. On the voyage he suffered much hardship in consequence of not being supplied with proper clothing, and from the fact that he had no bedding at all, both of which the master had represented to him would be furnished him on board the ship; and generally harsh treatment was accorded the appellant and all the members of the crew save two, Harry Baker and William Baker, witnesses for the appellant, who were the only experienced sailors on board. William Baker testifies that the mate said to him, five or six days after they had left port, referring to the port of destination, that they 'were going to run them all ashore there. ' And at about the same time the master said to Harry Baker, referring to all the inexperienced men, that 'he wanted to get rid of them on the Sound'; and again, that 'he wanted to get rid of them on the Sound, and ship some sailors on the return voyage. The appellant says that a short time before the vessel's arrival at Port Hadlock the master said in forcible language, 'I am going to put a plank ashore, and I want every one of you to leave the moment the anchor drops,' whereupon the mate said to the appellant, 'That means you, too,' to which the appellant replied, 'I am not going to leave this vessel until she takes me back where she took me from. ' And it appears from the testimony of Harry Baker that all of the crew but the two Bakers did leave the vessel at Port Hadlock, and the Retriever returned to San Francisco with a crew of experienced seamen. Upon arrival at Port Hadlock the vessel was beached, and the appellant, among others, was compelled to stand in the water, which was very cold, to paint the ship's bottom, which exposure caused him severe physical suffering. He finally told the first mate, under whom he was working, that he could stand it no longer. The mate snatched the tools out of his hands, raised a brush as if to strike him, and in profane language told him to 'get away from here.' Upon attempting to work under the second mate, he received similar treatment, and was then again driven away by the first mate. Thereupon he applied to the master for his pay, and the master replied: 'You don't suppose you are going to get any pay do you? You have got your pay. You had your board. ' This was just at the dinner hour. The appellant went on board, got his dinner, took his clothes, and went ashore. The next day he made his way to Port Townsend with some difficulty, and thereafter (the record does not disclose when) returned to San Francisco. The appellee, in his answer, denies generally the averments of the libel, and contends that the appellant deserted the Retriever at Port Hadlock, after having entered into a contract with the master to ship for the voyage, and, under the terms of said contract, is entitled to no remuneration for the services rendered by him. Capt. Bogan testifies that he first saw the appellant on board the Retriever; that he worked during the trip to Port Hadlock, doing what he was told to do; and that he was not paid for his services. The cashier of the Shipowners' Association of San Francisco testifies that he enrolled the appellant in the register kept in the office of that association at that time; that he does not positively remember, but thinks, from the articles, that the crew signed them in the office. The only other evidence introduced by the appellee in the shipping articles, from which it appears that the crew of the Retriever signed for a voyage not to exceed six months in duration, between San Francisco as the home port and Port Hadlock. The articles contain the usual stipulations, among which are the following: 'And it is herein expressly agreed, without reservation of any sort, that in case of the desertion from the vessel of any of the crew, the said persons so deserting shall forfeit to the owners of the said vessel all the wages due them. ' 'It is expressly understood that these shipping articles shall be construed to be a civil contract between the master of the vessel and the members of the crew, and that the essence of the contract is the undertaking of each member of the crew to complete the specified voyage before becoming entitled to any portion of his pay. ' The appellant, upon cross-examination, admitted that he signed these shipping articles, and agreed to go upon said voyage, his compensation to be $25 per month. The court below, in its opinion, held that, while the appellant was justified in leaving the ship, the libel should be dismissed, as there was a fatal variance between the case proven and the cause of action set up in the libel. The libel was, by the decree, accordingly peremptorily dismissed. (D.C.) 93 F. 977. From this decree an appeal has been taken to this court.

George F. Shelton, for appellant.

Charles E. Naylor, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge, after stating the case as above, .

A consideration of the evidence in the case fails, we think, to sustain the contention of the appellant, as expressed in his libel, that he was induced by false and fraudulent pretenses to go on board the ship Retriever, and was then forcibly detained there. It appears from the record that the appellant, who had been a university student, signed shipping articles of the usual and regular form for a voyage on said vessel, and that he thereafter voluntarily went aboard the vessel and performed such duties as were assigned to him during the voyage to the port of destination, Port Hadlock, where he left the vessel.

The next question that arises is, was the appellant justified in leaving the ship? That is to say, under the facts of this case, was he, in effect, discharged at Port Hadlock? The circumstances of his leaving the vessel are fully set forth in the foregoing statement. The only testimony on the part of the appellee in relation to this point is that of Capt Bogan, who says, referring to the appellant, 'He left the ship.' The appellant's testimony, on the other hand, discloses such treatment, and such a chain of circumstances, that the court below found that he was justified in leaving the ship. This, we think, is correct. The evidence shows that the majority of the crew were inexperienced seamen, whose services were accepted because of the inability of the master to secure men of experience. It further appears that, shortly after his departure from the port of San Francisco, the master of the...