Mosher v. Tate

• Decision Date: 24 May 1950
• Docket Number: No. 12370.,12370.
• Parties: MOSHER v. TATE et al. THE FEARLESS.
• Court: U.S. Court of Appeals — Ninth Circuit

182 F.2d 475 (1950)

MOSHER v. TATE et al. THE FEARLESS.

No. 12370.

United States Court of Appeals Ninth Circuit.

May 24, 1950.

MacCormac Snow, Portland, Or., for appellant.

Wood, Matthiessen & Wood, Lofton L. Tatum, Portland, Or., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

BONE, Circuit Judge.

Appellant instituted this admiralty proceeding by filing a libel against the "otter trawl" fishing boat Fearless seeking the recovery of wages alleged to be due appellant and his three assignors, all members of the crew of the Fearless.¹ The boat was arrested by the marshal pursuant to a warrant of arrest and monition issued by the court. Appellees, owners of the vessel, answered as claimants. They denied that any indebtedness was due appellant or his assignors and alleged as an affirmative defense that the members of the crew were engaged to operate the Fearless under an oral agreement which was subject to the terms of a standard fishermen's union contract. A copy of this contract was attached to the answer and incorporated by reference. It provides, generally, that the crew is to be paid 60% of the net proceeds of the season's catch (after the deduction of certain expenses)² Appellees alleged that the crew engaged in fishing operations for one short voyage and then voluntarily left the employment of the boat.

Appellees further alleged, by way of "cross-libel," four causes of action seeking recovery of monies alleged to be due them by appellant and his assignors.³ The findings and conclusions of the trial court (which were prepared and submitted by appellees) made no reference to the facts alleged in the cross-libels but appellees do not claim error in this regard. We therefore disregard the cross-libels except insofar as they may have some bearing on a procedural issue which is considered later.

It appears from the record that libelant and his assignors (with the exception of George Mosher, who joined the crew on or about December 16) came aboard the vessel at Portland, Oregon on November 3, 1948 and spent several days getting it in shape for fishing. They then started down the Columbia River, but before they could get to sea to fish the boat was beset by a series of mechanical difficulties. Repairs were made, apparently by the joint efforts of the Moshers and outside mechanics. The testimony is in conflict concerning how much time was spent by the Moshers in working on the boat and how much was spent in idleness awaiting a fishing chance. At any rate on January 7, 1949, they finally put to sea but were able to make but a single drag with the net before the hauling gear gave out.⁴ On the homeward trip the boat's engine again became disabled and the boat was towed in by the Coast Guard. Two days' work by the Moshers repaired the engine.

Thereafter and following a conversation with the owners (appellees) the Moshers' employment was terminated. Appellees contend that the employment was terminated by mutual consent; appellant contends that the crew was discharged. The record would support a finding either way on this issue depending upon which witnesses the court believed. However, the trial court made no finding on this factual issue. It should have done so. We think (for reasons which will appear hereafter) that the findings of fact are also incomplete in other respects and that they are somewhat inconsistent.

The trial court found that appellant and his assignors "were employed to operate the Fearless in the fishing trade upon a lay basis, subject to the terms of a working agreement of the Otter Trawlers Union." (Emphasis supplied.) This finding is not disputed by any of the parties. The court then found that "during said employment from November 3, 1948 to January 10, 1949 the libelant and his assignors performed 12 days' labor for which the court allows a recovery of $10.00 per day, $8.00 per day and $6.00 per day, being in all $24.00 per day or a total of $288.00." This finding would indicate that only three of the Moshers were allowed a recovery. A decree for recovery of that amount and costs was entered in favor of appellant.

We cannot determine from the findings which one of the four Moshers was denied recovery nor can we say whether that denial resulted from a court's unexpresssed determination that the evidence did not warrant a recovery for one of them, or whether it resulted from oversight or inadvertence. The record does not disclose how the trial court determined the various rates of recovery which it "allowed," nor which rate was given to each of the three Moshers who were allowed a recovery.

The Otter Trawlers Union contract provides: "Any work done on otter trawls after one day by any member promised a fishing chance, who is released without legitimate cause and does not have the opportunity to fish with said otter trawl seine shall be paid at the rate prescribed above, $1.50 per hour." Appellant contends that the members of the crew, after being promised a fishing chance, were released without legitimate cause before they had had an "opportunity to fish," and, therefore, the contract wage ($1.50 per hour or $12.00 per 8 hour day) applies, rather than the lower rates allowed by the trial judge.

Appellees do not argue that the single drag with the net was an "opportunity to fish" within the meaning of the employment agreement which contemplated a season's fishing venture. However, they do dispute appellant's allegation that the Moshers were released without legitimate cause; they contend that the Moshers voluntarily terminated the employment. As indicated above this issue should have been determined by the trial court. Despite the fact that this is an admiralty proceeding and hence, according to some general observations in certain of the cases the appeal provides a "trial de novo,"⁵ this court is not justified in attempting to resolve factual disputes arising from conflicts in the oral testimony in this case. We cannot evaluate the credibility of witnesses by merely reading a cold record.

The case must, therefore, be remanded for further findings of fact. If the trial court finds that the Moshers were discharged without legitimate cause and without being given an opportunity to fish, then each of them is, under the provisions of the agreement, entitled to compensation at the rate of $1.50 per hour (after the first day) for the work required by the contract (repair and maintenance of net and gear, cleaning the boat, etc.) which he performed on the vessel. If it finds that the employment was terminated by mutual consent then the Moshers would not be entitled to recover under the terms of the agreement. However, in either event, they should be entitled to recover the reasonable value of their service for the work they performed in making the major repairs to the boat's engine, because that type of work was in addition to and beyond the scope of their duties as set out under the provisions of the employment agreement. The evidence was in sharp conflict concerning the amount of time (if any) which the members of the crew spent in repairing the engine. This conflict, too, must be resolved by the trial court and made the subject of adequate findings.

Appellant argues that he is entitled to recover for himself and his assignors for the entire period of time which was spent "in the service of the ship," meaning thereby to include the "waiting time." We find nothing in the contract permitting recovery for "waiting time," and we are persuaded that there could be no quasi-contractual recovery for periods of idleness. Appellant next states that, in any event, "virtually all" of the period alleged in the complaint was spent in actual work. As we have indicated above, the amount of time which the crew actually worked is for determination by the trial court who heard the confliction testimony of the witnesses. On the record before us we cannot say that the twelve days allowed by the trial court was "clearly erroneous." However, that court may, if it see fit, amend its finding in this regard, in light of the factual and legal issues delineated above.

There are several procedural difficulties which must be considered. In the first place, no publication of the warrant of arrest was made as required...