O'HARA v. Luckenbach SS Co.

• Decision Date: 13 October 1924
• Docket Number: No. 4205.,4205.
• Citation: 1 F.2d 923
• Parties: O'HARA et al. v. LUCKENBACH S. S. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

1 F.2d 923 (1924)

O'HARA et al. v. LUCKENBACH S. S. CO.

No. 4205.

Circuit Court of Appeals, Ninth Circuit.

October 13, 1924.

H. W. Hutton, of San Francisco, Cal., for appellants.

Louis T. Hengstler and Frederick W. Dorr, both of San Francisco, Cal., for appellee.

Before GILBERT, HUNT, and MORROW, Circuit Judges.

MORROW, Circuit Judge.

Appellants (libelants below) were quartermasters employed on September 30, 1922, on the steamship Lewis Luckenbach for a voyage from New York to the Pacific Coast ports and return to the Atlantic Coast at a wage of $45 a month. Appellee (respondent below) is a corporation organized under the laws of Delaware, and is the owner of the steamship Lewis Luckenbach.

The libelants, in their amended libel, seek to recover of the respondent certain sums for seamen's wages — William O'Hara, the sum of $27.50; and Sven Tjersland, the sum of $28.50. The defense is desertion. The libelants shipped as seamen on the steamship Lewis Luckenbach for a voyage from the port of New York to Pacific ports of the United States and return to some port north of Cape Hatteras on the Atlantic Coast at the wages of $45 a month.

Upon the arrival of the vessel in San Francisco on November 15, 1922, libelants asked for a discharge without assigning any reason. The master refused to discharge them, because they had signed articles for the return voyage. They then demanded a certificate to the United States Marine Hospital, which was given them, but they were unable to secure discharge on account of disability. Libelants then claimed discharge on the ground that the ship was violating the law in not dividing its crew into watches, and demanded payment of their wages. The discharge was again refused. They left the service of the vessel and brought action to recover wages earned and double pay for each day having elapsed since November 15, 1922, when the wages were demanded.

Section 2 of the Act of March 4, 1915 (38 Stat. 1164 Comp. St. § 8363b), provides as follows:

"That in all merchant vessels of the United States of more than one hundred tons gross, excepting those navigating rivers, harbors, bays, or sounds exclusively, the sailors shall, while at sea, be divided into at least two, and the firemen, oilers, and watertenders into at least three watches, which shall be kept on duty successively for the performance of ordinary work incident to the sailing and management of the vessel. * * *

"Whenever the master of any vessel shall fail to comply...