Heino v. Libby, McNeill & Libby

• Decision Date: 21 June 1921
• Docket Number: 16094.
• Court: Washington Supreme Court
• Parties: HEINO v. LIBBY, McNEILL & LIBBY, and nine other cases.

205 P. 854

116 Wash. 148

HEINO v. LIBBY, McNEILL & LIBBY, and nine other cases.

No. 16094.

Supreme Court of Washington, En Banc.

June 21, 1921

Appeal from Superior Court, King County; Everett Smith, Judge.

Actions by E. Heino, A. W. Johnson, Ellis Johnson, H. Selenius, John Winters, J. Tennyson, A. Anderson, Gus Johnson, A. Emelio and John Lagus against Libby, McNeill & Libby, a corporation which were consolidated. From a judgment for plaintiffs defendant appeals. Reversed, and cases dismissed.

Fullerton J., dissenting.

Kerr & McCord and Stephen V. Carey, all of Seattle, for appellant.

H. E. Foster, of Seattle, for respondents.

HOLCOMB J.

These actions, 10 in number, were brought by 10 of a crew of seamen, and fishermen, suing for themselves and as assignees for collection of 84 others, to recover wages claimed to have been earned by them under a contract of employment. The 10 cases were consolidated for trial under the title of Heino v. Libby, McNeill & Libby. From 6 to 12 cases are included in each suit. In each suit the plaintiff alleges his employment and that of his assignors and that he was given certificates showing stated amounts which appellant refused to pay.

Appellant answered in each case, the answer in the Heino Case being typical of all, denying that the several amounts claimed by the plaintiffs were earned, alleging that certain lesser sums were earned, which would be owing by appellant were it not for matters affirmatively alleged. Appellant then affirmatively alleged that on April 8, 1919, respondents and their assignors entered into a contract with appellant in the form of shipping articles, and a certain supplementary agreement, whereby respondents and their assignors engaged themselves as seamen and fishermen for the season of 1919, and, as such, agreed to sail the ship Abner Coburn from Seattle to Libbyville, Alaska, and to work as fishermen during the fishing season, and on the conclusion thereof to sail the Abner Coburn back to Seattle. It is further alleged that, upon the arrival of the ship at Libbyville, the crew conspired together to violate their contract by refusing to navigate the ship back to Seattle; that in furtherance of the conspiracy the crew pretended that the vessel was in a leaky condition and unseaworthy, and thereupon the appellant had the vessel surveyed by three master mariners, and by the officers of the United States coast guard cutter Unalga, but that, notwithstanding such surveys and the demand of the master that the crew fulfill their contract, they refused to do so, and deserted that ship. Appellant then alleged that on account of the refusal of the crew to perform their contract appellant was subjected to expenses aggregating something over $36,000, and by reason of the provisions of the contract appellant became entitled to recover from each member of the crew $5 for each day they severally refused to work.

Respondents replied, putting in issue the matters alleged in appellant's affirmative answer.

The total amount claimed by the several respondents upon their own and the assigned claims was $26,029.22. Upon a trial to the court and a jury, the jury returned a verdict for $25,613.76.

Appellant operates a number of salmon canneries in Alaska on Bristol Bay, and one of the canneries is located at Libbyville, Alaska. The usual method of operating these canneries is to fit out an expedition, which leaves Seattle in the spring in time to reach the cannery by the time the fish begin to run. The canneries are operated during the run of the fish, and when that is over the expedition returns to Seattle. During the season of 1919 the sailing ship Abner Coburn, owned by appellant, was assigned to the expedition to Libbyville. She left Seattle on April 10, 1919, having on board a cargo of cannery and fishery supplies and about 325 or 330 men. The men on board were under contract to perform the labor and were divided into three groups, namely: (1) Seamen, fishermen, beachmen, and trapmen; (2) monthly men; (3) China crew.

The first group (seamen, fishermen, beachmen, and trapmen) was composed of about 100 men, who before leaving Seattle signed shipping articles in the office of the United States Shipping Commissioner, by which they engaged themselves to sail the Abner Coburn to Alaska, work during the fishing season as fishermen, beachmen, or trapmen, and at the close of the fishing season to sail the vessel back to Seattle. These men were all members of the Alaska Fishermen's Union. Their contract of employment consisted of the usual form of shipping articles prescribed by title LIII, Revised Statutes of the United States (U. S. Comp. St. § 8287 et seq.), to be executed with respect to vessels or merchant ships, together with a supplemental agreement known as a 'fisherman's contract,' which provides in detail as to the duties and compensation of these men. The two documents, namely, the shipping articles and the fisherman's agreement, were executed together and constituted one contract. The form of the fisherman's agreement is agreed to each year by representatives of the salmon packers operating in Alaska, and the officials of the Alaska Fishermen's Union, and the form so agreed to becomes the uniform contract applicable to all canneries in Alaska. Under the agreement the seamen and fishermen were entitled to certain fixed sums known as 'run money' as compensation for sailing the ship to and from Alaska, together with further allowances depending upon the number and kind of fish caught during the season.

These cases concern only wages claimed to be due seamen and fishermen, the monthly men and China crew not being involved.

When the vessel left Seattle with its cargo of cannery supplies, it was loaded down to the 24-foot draught. When about 700 miles outside of Cape Flattery, nearly one-half the distance of Unimak Pass, the ship encountered a squall which lasted about 24 hours, on about April 18, 1919, and began to take water, and took water to the extent of 9 or 10 inches per hour. Some of the crew then became alarmed and demanded of the master that he return to Seattle. A petition was circulated aboard ship and signed by many members of the crew, and monthly men, and presented to the master, making this demand; but he declined to turn back, being of the opinion that he could as safely go forward to Unimak Pass as to put back an equal distance to Seattle; for, on reaching Unimak Pass, he could, if necessary, put into Dutch Harbor. After this squall the vessel proceeded to Bristol Bay, not finding it necessary to stop at Dutch Harbor. Upon the master's refusal to put back, the crew became somewhat insubordinate, and for a time refused to set sail as ordered. The ship arrived at Bristol Bay about May 8, 1919, and proceeded to discharge her cargo. Although the vessel had leaked considerably on the voyage, the cargo was not damaged by water. From the time she started to leak, about April 18, until she arrived in Bristol Bay, she continued to take in more or less water; but the power pumps were always adequate to take care of the water, and it was never necessary to operate the hand pumps.

When the vessel was partly unloaded, the leak was discovered at about the 19-foot draught line, and it was found that several butts had opened up, probably caused by the storm, and thus caused the vessel to leak. A 'butt' is a joint between the ends of two planks on the side of the ship. The planks are about 8 inches wide, and the space between the ends of the two planks, about a quarter of an inch wide, is called a 'butt' and is filled with oakum to make it water tight. The oakum had worked out of several of the butts. The unloading of the vessel had caused her to come up out of the water so that the leaking butts were exposed. When the vessel had been completely unloaded appellant caused her to be overhauled, and fitted for the return voyage, and among other things caused the leaking butts to be repaired.

When the crew arrived at Libbyville, they held a meeting and agreed among themselves that under no circumstances would they sail the ship on the return voyage, and so notified the superintendent of appellant's cannery. This determination was made by the crew before the vessel was unloaded and before it was known why she had leaked on the trip to Alaska.

After the vessel was repaired, appellant, on about July 8, caused her to be surveyed by three disinterested master mariners from other ships then in Bristol Bay, and as a result of their examination they pronounced the ship seaworthy and in all respects fit to make the return trip to Seattle.

On August 12, the ship was loaded and ready to make the return trip. The vessel did not have a full cargo for the return voyage, and as loaded for the return trip the butts which had leaked on the up trip were above water. The master then ordered the crew aboard for the return voyage; but, because of the previous agreement among themselves, they refused to go aboard. The men were then assembled on shore, the master read to them the certificate made by the three master mariners, the roll of the crew was called, and each man individually asked to go aboard, and each individually refused to do so. In the meantime the general superintendent Svenssen, of appellant, had arrived at Libbyville, and took charge of the situation. He had various consultations with the members of the crew endeavoring to get them to fulfill their contract, but without success. As a last resort he took steps to have the United States coast guard cutter Unalga sent to the scene of the trouble. Capt. Dodge, commander of the Unalga, was ordered by his superiors at Washington to go to Libbyville, where he arrived with his vessel September 6. He immediately...