Hamilton v. United States

• Decision Date: 06 July 1920
• Docket Number: 1816.
• Citation: 268 F. 15
• Parties: HAMILTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

268 F. 15

HAMILTON et al. v. UNITED STATES.

No. 1816.

United States Court of Appeals, Fourth Circuit.

July 6, 1920

Hiram M. Smith, U.S. Atty., of Richmond, Va.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

WOODS Circuit Judge.

A general verdict of guilty was found against the appellants seamen of the United States merchant ship Poughkeepsie, on an indictment framed under section 292 of Penal Code (Comp. St Sec. 10465). The first count charged an endeavor to make a revolt; the second, conspiracy to make a revolt; the third, a combination and conspiracy 'to refuse and neglect to perform their proper duty on board of the said vessel.'

The pivotal question is whether the evidence required the direction of a verdict of acquittal. The shipping articles dated August 5, 1919, stipulated for the voyage as follows:

'From the port of New York to one or more ports in France, and such other ports and places in any part of the world as the master may direct, and back to a final port of discharge in the United States (north of Cape Hatteras), for a term of time not exceeding six calendar months.' Leaving New York on August 29, 1919, the vessel arrived in Havre in about 13 1/2 days. She left Havre November 12th for Southampton, and left Southampton November 14th for New York. On November 22d, on account of boiler trouble, she went to Fayal, Azores, as nearest point for repairs. Having remained there until December 30th, she again sailed for New York in abundant time to reach that port and complete her voyage before the end of the 6-months period. On January 2d, 5th, and 6th the ship lost three propeller blades in succession and became helpless. In response to a wireless call for assistance, another vessel towed her to Granaway's Deep, about three miles from Hamilton, Bermuda, considered a part of its harbor, though not closely landlocked. Here she anchored on January 22d, for repairs. On February 4th, before the repairs had been completed, the defendants stopped work and served on the master a written ultimatum, claiming the remainder of wages due them and free transportation to New York, on the ground that their term of service had expired. The master refused to accede to the demand and reported the matter to the American consul. The consul in person and by written communication warned the seamen that they were violating their shipping articles and should return at once to work. They persisted in their refusal to work, but remained on the vessel, having no money, and received from the vessel food and shelter. The defendants were guilty of no violence, and made no effort to interfere with the control of the ship, unless refusal to perform the duties of a crew can be so regarded. Another crew was employed, and the defendants were arrested and brought in the ship to the port of Newport News.

Counsel contend that a verdict of acquittal should have been directed for three reasons: First, the term of service of the seamen was at an end when the ship reached a port of safety after the expiration of the period of 6 months from the date of the contract; second, the action of the defendants did not constitute an endeavor or a conspiracy to commit a revolt, within the meaning of the statute, and therefore the evidence did not sustain the charge of the first and second counts; third, the statute does not make a combination or conspiracy to neglect and refusal to perform proper duty on board the vessel a criminal offense.

The first position is clearly untenable. Section 4511, Revised Statutes, and amendments (section 8300, Compiled Statutes), and the form provided in the schedule annexed, and section 4530, Revised Statutes, and its amendments (section 8322, Compiled Statutes), for the protection of seamen, relate to the voyage, and impose duties on the ship and seamen for the voyage. Neither can renounce those duties during the voyage. These statutes on their face, and the judicial construction given them, leave no doubt of these conclusions: (1) The master cannot discharge the crew, and the crew cannot demand wages in full, until the end of the voyage; (2) the end of the voyage is not a port of distress, but the port of destination; (3) seamen are bound to serve until the voyage ends in the port of destination, unless there has been a breach of the contract by the master as to the time of the voyage or in some other material particular; (4) extension of the time of the voyage by intention or neglect of the master is such breach of the contract as entitles the seamen to demand their release on that ground in any safe port; (5) but extension of the voyage beyond the time mentioned in the contract, due to perils of the sea which the master or owner could not be reasonably expected to guard against, is not a breach of the contract as to time, and does not warrant seamen in leaving the vessel or demanding wages in full before reaching the port of destination; (6) on the other hand, seamen are entitled to their wages and discharge when the ship reaches the port of destination before the expiration of the stipulated time of the voyage. Fairchild v. The Aurelius, 8 Fed.Cas. 953; The Hotspur, 12 Fed.Cas. 562; Schermacher v. Yates (D.C.) 57 F. 668; The Falls of Keltie (D.C.) 114 F. 357; The Belvedere (D.C.) 100 F. 498; Belyea v. Cook (D.C). 162 F. 180; The Catalonia (D.C.) 236 F. 554; Board of Trade v. Baxter (1907) A.C. 373, 9 Ann.Cas. 501, 505. There was no demand for release and payment of wages on the ground that the voyage had been extended by the willful or negligent action of the owner or master, and the proof did not require the conclusion that the extension of the voyage was due to that cause.

Was there a failure of evidence from which a reasonable inference of endeavor to make a revolt or conspiracy to revolt could be drawn? Section 293 of Penal Code (Compiled Statutes, Sec. 10466) defines revolt:

'Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, unlawfully and with force, or by fraud, or intimidation, usurps the command of such vessel from the master or other lawful officer in command thereof, or deprives him of authority and command on board, or resists or prevents him in the free and lawful exercise thereof, or transfers such authority and command to another not lawfully entitled thereto, is guilty of a revolt and mutiny, and shall be fined not more than two thousand dollars and imprisoned not more than ten years.'

Section 292 of Criminal Code (Act of 1835, Compiled Statutes, Sec. 10465), under which defendants were indicted, provides:

'Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both.'

The specific question is whether the agreement of the entire crew of the ship, anchored in a port of refuge before the end of the voyage, to refuse to obey the orders of the master, and their united action in carrying out the agreement, while remaining on board, is endeavoring to make a revolt. This was not usurpation of the command from the master, for there was no effort to take charge of the ship. But evidently it was a successful endeavor to deprive him of authority and command on board, and to resist and prevent him in the free and lawful exercise of his command. The united action of a crew in refusing to yield obedience to the lawful command of the master deprives him of the authority and command he was in duty bound to exercise. This is as much resistance and prevention of the free and lawful exercise of his authority and command as an undertaking by a crew to deprive him of any inanimate instrumentality necessary to the command and management of the ship. A master may have possession of the ship alone, but he cannot be in command of it, if the crew unite in refusing to carry out his orders. Command of a fortress means actual control of the garrison for military purposes. Command of a ship means actual control of the crew for nautical purposes. If all the garrison of a fortress, or all the crew of a ship, refuse obedience to the commander, they deprive him of authority and command; they resist and prevent the exercise of his authority and command.

'An endeavor to commit a revolt may be complete, not merely by stirring up, encouraging, or combining with others of the ship's crew to produce a general disobedience of all orders, but also by stirring up, encouraging, or combining with any one or more of the crew to produce a deliberate disobedience to any one lawful order of the master or other officers. ' United States v. Thompson, 28 Fed.Cas. 102; United States v. Cassedy, 25 Fed.Cas. 321; In re Simpson (D.C.) 119 F. 620; United States v. Lynch, 26 Fed.Cas. 1033; United States v. Forbes, 25 Fed.Cas. 1141; United States v. Nye, 27 Fed.Cas. 210.

It is true the Supreme Court in United States v. Kelley, 11 Wheat. 417, 6...