THE AMERICAN SHIPPER, 212.

• Citation: 70 F.2d 632
• Decision Date: 30 April 1934
• Docket Number: No. 212.,212.
• Parties: THE AMERICAN SHIPPER. McCREA v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

70 F.2d 632 (1934)

THE AMERICAN SHIPPER.

McCREA v. UNITED STATES.

No. 212.

Circuit Court of Appeals, Second Circuit.

April 30, 1934.

John M. Scoble, of New York City (K. Courtenay Johnston, of New York City, of counsel), for libelant.

Martin Conboy, U. S. Atty., of New York City (William E. Collins, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The libelant shipped as a fireman on the steamship American Shipper on a voyage from New York to London. The steamer left New York February 15, 1928, and arrived at London the following February 26th. It was owned by the United States and was a merchant vessel subject to the provisions of section 2 of the Seamen's Act of March 4, 1915 (46 USCA § 673), relating to watches, their duties, and their right to discharge.

There were thirteen seamen on the vessel, and they were not, while at sea, divided as equally as that number permitted into watches and kept on duty successively as the above statute required. Instead of this, there were three watches of three men each and the remaining four were kept on day duty and not included in any watch.

This libelant had made himself somewhat familiar with the provisions of the Seamen's Act before signing on and also with the decision of the Supreme Court in O'Hara v. Luckenbach S. S. Co., 269 U. S. 364, 46 S. Ct. 157, 70 L. Ed. 313. One of his reasons for becoming a member of the crew of this ship was to take advantage of any violation of the law. He made no complaint during the voyage, but, after the ship docked at London and while the captain was paying the crew about to go on shore leave, one-half of their wages, demanded his discharge with full pay, additional wages for one month, and his passage home on the ground that the seamen had not been divided into equal watches. He then told the captain he was making his demand under section 2 of the Seamen's Act and section 4583, R. S. (46 USCA § 685) and refused to accept half his wages. The master told him he did not know what these sections of the statute were about and would have to look them up, and asked the libelant to meet him at the office of the American consul in London just after noon the next day. He gave libelant the address of the American consulate, and told him they would talk the matter over there. The appellant went to the consulate the next morning and waited until half past 11 when he left after stating his complaint and being informed that he was not entitled to a discharge. He requested a written decision, and, after complying with a request to put his complaint in writing, one to like effect was sent addressed to him in care of the ship. The captain, who had been busy preparing his papers for entry at the customs house, got to the consulate about 2 o'clock that day and was told that the appellant had been there and gone. He then returned to the ship, where he remained most of the time it was in port, but did not see the appellant again.

The appellant testified that he returned from the consulate to the ship, knocked on the captain's door that night and again the next morning, but received no answer at either time. He then asked the chief mate if the captain was aboard, and the mate said he did not know. When he asked the mate for a pass for his clothes, he was told that the mate could not give him one, and he was not allowed to take his clothes when he left the ship soon afterward without any other attempt to see the captain or leaving any information which would enable the captain to communicate with him. He did not intend to return to the ship when he left, and never did return but spent about three weeks visiting relatives in England. Becoming somewhat alarmed about his status in England as an alien who had deserted his ship, he then purchased his passage on another vessel and returned to the United States. He brought this action on July 11, 1928.

On August 15, 1932, a decree dated August 12, 1932, was entered in the District Court under which the appellant was awarded the wages due him when he demanded them in London on February 26, 1928, the value of his clothing and effects left on the ship and twice his pay from the commencement of this action to the date of the decree. On August 13, 1932, an assistant United States attorney wrote the judge a letter in which his attention was called to Missouri Pacific R. Co. & Director General v. Ault, 256 U. S. 554, 563, 41 S. Ct. 593, 65 L. Ed. 1087, and to Corrigan v. United States (D. C.) 298 F. 610, 613, on the question of the liability of the government for a penalty and a rehearing was requested. On August 30, 1932, a rehearing was granted.

On March 9, 1933, a decree was entered in which the appellant was granted recovery as in the decree of the previous August with the exception of double pay. An order allowing the appellant an appeal from this decree was signed and filed May 16, 1933. On the same day he filed an assignment of errors. Being an action by a seaman for wages, no bond was required. On July 5, 1933, the district attorney moved in the District Court for an order amending and resettling the March decree. The motion was granted, and on July 18, 1933, the decree was amended by adding thereto this paragraph: "Ordered that the final decree in favor of libelant, entered herein on the 15th day of August 1932, be and the same is in all respects vacated and set aside." On August 10, 1933, an appeal was allowed in the District Court, and new assignments of error were filed by the libelant which, in addition to the issues previously raised, questioned the power of the District Court to enter the decree of ...