The Kestor

• Decision Date: 07 August 1901
• Docket Number: 616.
• Parties: THE KESTOR.
• Court: U.S. District Court — District of Delaware

110 F. 432

THE KESTOR.

No. 616.

United States District Court, D. Delaware.

August 7, 1901

Syllabus by the Court.

Section 24 of the act of congress of December 21, 1898, entitled 'An act to amend the laws relating to American seamen for the protection of such seamen, and to promote commerce' (30 Stat. 755), in prohibiting the prepayment of the wages of seamen, is a constitutional enactment applying to the prepayment an American soil or in American waters of the wages of seamen, who are British subjects shipping in American ports on British merchant vessels; there being no treaty between the United States and Great Britain inconsistent with such application.

Robert Penington and Joseph Hill Brinton, for libelant.

Charles M. Curtis, for respondent.

BRADFORD District Judge.

The libel in this case was filed by William Chambers against the steamship Kestor for the recovery of seaman's wages. On September 2, 1899, that vessel, being destined on a voyage from Baltimore to Mexico, Cuba and Philadelphia, and thereafter on another voyage from Philadelphia to Cuba and to some port in the United States north of Cape Hatteras, the libelant signed shipping articles to serve on her as fireman. The wages he was to receive were stated in the articles as 'one shilling for the first twenty days and thirty dollars per month afterwards. ' On the day next following that on which he signed the articles he entered on his employment and continued to serve in the capacity of fireman until he was discharged in Philadelphia November 19, 1899, having served two months and seventeen days. At the time he was employed the Kestor was a British merchant vessel sailing under the British flag, and the libelant was a British subject. It is admitted that the libelant received on account of his wages for the two voyages money and supplies amounting to $20.82. The claimant contends that the balance due to the libelant, after deducting the above amount, was at the time of his discharge $36.18. At the time of his discharge the latter amount was tendered or offered to the libelant in full satisfaction of his claim; but he refused to accept the same, alleging that he was entitled to receive $20 more than the sum so tendered or offered. It is admitted that the sum so tendered or offered and refused was deposited with the British counsel at Philadelphia November 21, 1899, subject to the order of the libelant, prior to the filing of the libel in this cause, and that 'subsequently the British consul forwarded the same to the London Board of Trade pursuant to the British Shipping Act to the credit of said libelant. ' The basis on which the claimant arrives at the amount admitted by him to be due to the was entitled to receive only $10 during the first month, $30 during the second months and $17 for the remaining seventeen days, amounting in the aggregate to $57, which, after deducting the credit of $20.82, leaves a balance of $36.18. The libelant claims that, notwithstanding the shipping articles, he was entitled to receive wages at the rate of $30 a month during the whole period of his service, and that allowing for the above credit there was due to him at the time of his discharge $56.18. For the recovery of the latter amount with interest he filed his libel.

By section 24 of the act of congress of December 21, 1898, entitled 'An act to amend the laws relating to American seamen, for the protection of such seamen, and to promote commerce' (30 Stat. 755), section 10 of the act of June 26, 1884, entitled 'An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade and for other purposes' (23 Stat. 53), as amended by section 3 of the act of June 19, 1886, entitled 'An act to abolish certain fees for official services to American vessels, and to amend the laws relating to shipping commissioners, seamen, and owners of vessels, and for other purposes' (24 Stat. 79), was further amended so as to read, so far as material to be considered in connection with this case, as follows:

'Sec. 10. (a) That it shall be, and is hereby, made unlawful in any case to pay any seaman wages in advance the time when he has actually earned the same, or to pay such advance wages to any other person. Any person paying such advance wages shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not less than four times the amount of the wages so advanced, and may also be imprisoned for a period not exceeding six months, at the discretion of the court. The payment of such advance wages shall in no case, excepting as herein provided, absolve the vessel or the master or owner thereof from full payment of wages after the same shall have been actually earned, and shall be no defense to a libel, suit, or action for the recovery of such wages. If any person shall demand or receive, either directly or indirectly, from any seaman or other person seeking employment as seaman, or from any person on his behalf, any remuneration whatever for providing him with employment, he shall for every such offense be liable to a penalty of not more than one hundred dollars. * * * (f) That this section shall apply as well to foreign vessels as to vessels of the United States; and any master, owner, consignee, or agent of any for the same penalty that the master, owner, or agent of a vessel of the United States would be for a similar violation: Provided, That treaties in force between the United States and foreign nations do not conflict.'

This section, subject to certain exceptions and provisos not pertinent in this connection, makes it 'unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same, or to pay such advance wages to any other person,' and provides that such payment 'shall in no case * * * absolve the vessel or the master or owner thereof from full payment of wages after the same shall have been actually earned, and shall be no defense to a libel, suit, or action for the recovery of such wages. ' The libelant contends that the provisions of the above section are applicable to the prepayment of the wages of a British seaman employed to serve on a British merchant vessel; that he was entitled to wages at the rate of $30 a month from the commencement of his service; and that $20 of his wages for the first month were paid by the master in violation of the statute. The claimant, on the other hand contends that the statute was not intended to apply to the prepayment of the wages of a British seaman serving on a British vessel; that, if it was intended to have such application, it was to that extent beyond the power of congress to enact; and that, on the assumption that the statute is operative in such a case, all the wages to which the libelant was entitled were specified in the shipping articles and consequently there was no violation of the statute. According to a literal construction of the shipping articles the wages of the libelant were fixed at 'one shilling for the first twenty days and thirty dollars per month afterwards. ' But this circumstance is not necessarily decisive of the case. A provision in a contract designed and calculated to secure or facilitate the doing of what by statute is declared unlawful and made a misdemeanor punishable by fine and imprisonment is a nullity. Whatever may be the form of such provision and however innocent on its face, its merits and receivers the condemnation of the law. If the stipulation of 'one shilling for the first twenty days' was intended as a cover for the unlawful prepayment of any portion of the libelant's wages 'to any other person,' it was unlawful and void. It could derive no vitality from the fact that the libelant when signing the articles was of full age and sound mind. He could not validly contract for the prepayment of his wages to himself or to another. Such prepayment was denounced by the statute, on the assumption that it is operative in the case of British seamen shipping in American ports on British vessel. If prior to the signing by the libelant of the shipping articles the parties regarded thirty dollars a month during the period of service as only a fair, reasonable and just measure of compensation by way of wages, and the libelant was induced by the master or by any other representative of the vessel to forego the receipt or consent to a relinquishment of his right to a portion of such compensation by submitting to a stipulation that he should receive for the first twenty days only one shilling, and if he was so induced with intent on the part of the master or such representative to prepay within the limits of the United States the amount so sought to be relinquished or foregone to any person or persons other than the libelant, whether by way of bonus or commission for the furnishing of the libelant to the vessel, or by way of the settlement in whole or in part of any indebtedness contracted by the libelant, such intent was unlawful and the amount so intended to be prepaid was 'wages' within the true intent and meaning of the statute. For in such case it must be assumed that, were it not for such bonus, commission or indebtedness, the master would have undertaken to pay the libelant as wages what was regarded as the proper measure of compensation during the whole period of his employment, and no stipulation of one shilling for the first twenty days would have been inserted in the articles. And in such case it is immaterial, in my opinion, whether the libelant was aware or ignorant of such unlawful intent on the part of the master or other representative of the vessel. In either event the prepayment, in accomplishment of that unlawful intent on the part of the master or other representative of the vessel....