Nelson v. Moore-McCormack Lines, Inc.

• Decision Date: 14 June 1961
• Citation: 201 F. Supp. 40
• Parties: Edward W. NELSON, Libelant, v. MOORE-McCORMACK LINES, INC., Respondent.
• Court: U.S. District Court — Southern District of New York

201 F. Supp. 40

Edward W. NELSON, Libelant, v. MOORE-McCORMACK LINES, INC., Respondent.

United States District Court S. D. New York.

June 14, 1961.

Murray Gartner, New York City, for libelant.

Burlingham, Underwood, Barron, Wright & White, New York City, for respondent.

THOMAS F. MURPHY, District Judge.

This is an action by a seaman, a radio operator, against Moore-McCormack for damages arising out of the latter's alleged breach of contract.

On August 23, 1955, libelant signed on the S.S. Mormacrey, respondent's vessel, as radio officer. The shipping articles called for a voyage from San Francisco where he signed on, to South American ports, "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 on the west coast of the United States, for a term of time not exceeding nine months." (Emphasis supplied.) When in Rio on the last leg of this voyage the Mormacrey was transferred by its owners to the Atlantic coast service and another ship transferred from the Atlantic coast to the Pacific coast service. At this time, in Rio, the masters and chief officers of the two vessels changed ships; the crew did not. The Mormacrey then proceeded to New York where it discharged the cargo and on October 24, 1955, paid off the crew. In accordance with schedules in union collective bargaining agreements, respondent also paid the crewman for return transportation to the west coast, including wages and subsistence incident thereto.

All of the crew except libelant appeared and signed off the articles when they were terminated by the vessel at this time in New York, which, though not so contemplated under the articles, was made to be the port of final discharge. The regular radio officer, because of whose absence libelant was temporarily assigned to the ship, had not as yet returned from his home on the west coast, and libelant was therefore cleared by his union for a coastwise trip lasting from October 25th to November 13, 1955. Such a trip did not require the signing of articles. 46 U.S.C.A. § 544. His accrued wages remained unclaimed by him throughout this period since October 24th. On November 14th the regular radio man had returned and new articles were to be opened that day for a foreign voyage. At this time libelant insisted that the articles he signed on August 23, 1955, remained in effect as to him since he had not signed off them on October 24th with the rest of the crew and moreover, respondent could not, he claimed, legally terminate those articles at that time. He sought unsuccessfully to be permitted to sign the newly opened articles, and then refused to remove from the ship. He did so, however, when ordered off the next day by the chief mate. Upon his removal he demanded of respondent's agent his accrued wages that he neglected to claim on the 24th (he had been theretofore duly paid upon his request for the coastwise trip which ended on November 13th). Respondent advised him that his wages could be obtained during business hours upon presentation of a mutual release obtainable from the Coast Guard Shipping Commissioner. The latter officer suggested to libelant that he sign such release "under protest" and that he would then receive his pay. Libelant did not do so, but instituted this action some eight months thereafter.

It is libelant's claim that he was unlawfully discharged, contrary to the articles, at New York. His contention is that he could not be discharged in New York since the articles contemplated returning to the west coast. He says that respondent was not at liberty to terminate the voyage at New York on October 24, 1955, nor was that accomplished when cargo was discharged and the crew paid off. Libelant argues that New York was not a final port of discharge permitted by the articles, and he insists he had a right to continue aboard until the vessel terminated that voyage properly on the west coast of the United States or until the expiration of nine months, whichever was sooner. Here, of course, it would be the expiration of nine months since the ship did not sooner return to the west coast.

Libelant claims wages and subsistence from the time of his alleged unlawful discharge (November 15, 1955) to the expiration of the nine month limitation of the voyage plus an allowance for wages and travel from New York to San Francisco. In addition he claims statutory penalties for the alleged unlawful withholding of his accrued wages, contrary to Sections 596, 597, of Title 46 U.S.C.A., and also, overtime pay for unlawful detention aboard ship at Ilheus, Brazil. His testimony about the overtime is that when in Ilheus the ship posted its sailing board showing a sailing date for Saturday and the ship never took the board down or changed the time, and did not sail for some 72 hours thereafter. In this connection respondent's testimony is that at the time libelant claimed the overtime it was because of the failure of the ship to have launches available in Ilheus for going ashore and that he was disallowed it for two reasons: (1) he went ashore, and (2) the master had received a letter from the Port Captain which he posted to the effect that no launches were available.

The master testified, and the logs supported him, that the sailing board notices were appropriately posted and changed, and that only six hours really elapsed between the actual posted time and the sailing, and this was occasioned by the fact that the ship started to drag anchor and they spent considerable time getting a firmer anchorage.

We may dispose of this latter claim for overtime briefly, before discussing the main problem: we accept libelant's testimony that he did not go ashore at Ilheus, but we accept too the master's testimony about the posting of the sailing boards and the need for a firmer anchorage. The result is that libelant has failed to sustain his burden on such claim.

The "final port of discharge" is the port whereat the ship is relieved of her cargo and becomes ready for the next venture. The Larimer, 174 F. 429 (E.D.Pa.1909). The port of New York was not contemplated as a port of final discharge by the articles; such a port was clearly destined to be on the west coast. Unequivocally nonetheless, New York was constituted the port of final discharge and the voyage there terminated on the 24th of October, albeit, in breach of the articles. Cf. Bermuth, Lembecke Company v. Sergeant, 217 F.2d 704 (5th Cir., 1955); Schermacher v. Yates, 57 F. 668 (E.D.N.Y.1893). The only question to our mind is libelant's damages therefor.

What libelant contends for here is a rule that would preclude a vessel from terminating a voyage at a place different than that set forth in ...