Meyer v. Dollar SS Line, 6293.

• Decision Date: 08 May 1931
• Docket Number: No. 6293.,6293.
• Citation: 49 F.2d 1002
• Parties: MEYER v. DOLLAR S. S. LINE.
• Court: U.S. Court of Appeals — Ninth Circuit

49 F.2d 1002 (1931)

MEYER v. DOLLAR S. S. LINE.

No. 6293.

Circuit Court of Appeals, Ninth Circuit.

May 8, 1931.

Winter S. Martin, Arthur Collett, Jr., and Harry S. Redpath, all of Seattle, Wash., for appellant.

Hugh Montgomery and E. C. Kester, both of San Francisco, Cal., and John Ambler, of Seattle, Wash., for appellee.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from a final decree of the United States District Court for the Western District of Washington, Northern Division.

The facts of the case were not in dispute and were stated in a stipulation as follows:

"Bernard Meyer, libellant above named, aged 19, duly signed on the shipping articles of the S. S. President Cleveland, owned and operated by Dollar Steamship Lines, Inc., Ltd., and operated during all times mentioned in the libel herein by the respondent, on the 21st day of November, 1929, at San Francisco, California, for a voyage from said port to Manila, P. I., and return to the United States, said voyage consuming a period of approximately two months. The libellant worked at his usual duties until November 27th, 1929, the day before the arrival of the President Cleveland, at the port of Honolulu. At about 3:30 p. m. on said date, said libellant was on the after-port deck with a few of his shipmates, and entered into a good-natured scuffle with a fellow shipmate, in the course of which the libellant received a severe and painful injury to his leg. At said time libellant was off watch, and had not been drinking. Libellant was employed at wages of $72.50 per month, and his wages for the voyage totalled $130.50. The amount of wages due libellant up until the time he was left in Honolulu on November 28th, 1929, was $19.33. On said 28th day of November, 1929, libellant was, by order of the officers in charge of said vessel removed therefrom and entered at the hospital at Honolulu, which was necessitated by said injuries received as above mentioned. Said sum of $19.33 was tendered to Meyer as being the amount due him for this voyage, but said libellant refused this tender. Said libellant, before instituting the above proceeding demanded of respondent his wages for the voyage which totalled $130.50, which said demand was refused by the respondent. Said libellant did not earn any wages from the time of his said leaving said vessel at Honolulu until the end of said voyage, by virtue of any other employment.

"It is further agreed that said libellant has received at said hospital at Honolulu all maintenance to which he is entitled. That the only question in this case is whether said libellant is entitled to his wages to the end of said voyage; and, if so, is he entitled to the penalty of two days' pay for each day said wages have been withheld?"

On July 14, 1930, the lower court made and entered its final decree in said cause and allowed the appellant recovery of his wages from November 21, 1929, to November 28, 1929, and from January 2, 1930, the date on which appellant was released from the hospital in Honolulu, to January 13, 1930, a total sum of $43.44; the court denied appellant recovery of his wages for the time that he was in the hospital; and denied judgment for the penalty of double pay for withholding wages as provided for by U. S. Revised Statutes, § 4529 (46 USCA § 596).

The rule applicable in such cases was stated in the case of The A. Heaton (C. C.) 43 F. 592: "A seaman, taken sick or injured or disabled in the service of the ship, has the right to receive his wages to the end of the voyage, and to be cured at the ship's expense." Quoted with approval by the Supreme Court of the State of Washington in Peterson v. Pacific S. S. Co. (The Admiral Dewey) 145 Wash. 460, 261 P. 115, 118, 1928 A. M. C. 545, 551.

Later, this rule was given its final form by the Supreme Court when it said:

"Upon a full review, however, of English and American authorities upon these questions, we think the law may be considered as settled upon the following propositions:

"1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued." The Osceola, 189 U. S. 158, 23 S. Ct. 483, 487, 47 L. Ed. 760; see, also, Pacific Steamship Co. v. Peterson, 278 U. S. 130, 49 S. Ct. 75, 73 L. Ed. 220.

The point of importance in these statements of the rule is in the meaning to be attached to the phrase "in the service of the ship."

The peculiar nature of a sailor's occupation necessarily calls for a liberal interpretation of this phrase. A sailor cannot, like other workmen, divest himself of all his responsibilities to the company for which he works when his work for the day is done. For that reason, when the courts have been called upon to determine the bearing of the phrase "in the service of the ship" they have given it a wide range. "Courts of admiralty have always considered seamen as peculiarly entitled to their protection." The Heaton, supra. And more definitely: "We may state our opinion that a seaman `falls sick, or is wounded, in the service of the ship,' if such misfortune attacks him while he is attached to the ship as part of her crew. It is not necessary that the wound or illness should be directly caused by some proven act of labor; it is enough that he was, when incapacitated, subject to the call of duty as a seaman, and earning wages as such." The Bouker No. 2, 241 F. 831, 833 (C. C. A. 2nd).

One exception is consistently made to a too wide extension of the phrase, namely, the person...