THE STEEL TRADER
| Decision Date | 31 December 1925 |
| Docket Number | No. 16970.,16970. |
| Parties | THE STEEL TRADER. |
| Court | U.S. District Court — Eastern District of Louisiana |
Eugene S. Hayford, of New Orleans, La., for libelant.
Denegre, Leovy & Chaffe and Jas. H. Bruns, all of New Orleans, La., for defendant.
Libelant shipped as oiler on the American steamship Steel Trader, having signed articles November 29, 1921, though employed on November 27, 1921, at the rate of $80 per month for a round trip from New Orleans, via Port Arthur, Tex., to Piræus, Greece, and East Indian ports, and return to an Atlantic or Gulf port, sailing December 8, 1921, arriving at Port Arthur, the first call port, December 12, 1921, where he was discharged and paid off up to and including that date. He alleges he refused to sign the customary mutual release, because he was discharged without just cause and in violation of the shipping articles; that he is due wages up to May 19, 1922, the arrival date of the vessel's return to New Orleans, amounting to $414.50, and subsistence at $2.60 per day for the same period, according to contract.
Claimant's answer is in effect a general denial, with special allegations: That on December 5, 1921, there was inserted a certain wage provision as one of the voyage clauses in the shipping articles, drafted and inserted as a rider thereon, with the consent of the shipping commissioner. That, when it was read to the crew by the shipping commissioner, libelant, Adams, refused to consent thereto, and a note to that effect was made upon the voyage clause rider. That as libelant continued to refuse consent when the vessel arrived at Port Arthur, he was discharged and paid off by the master according to R. S. § 4527 (7 U. S. Comp. Stat. § 8318; Barnes' Fed. Code, § 7548): "Any seaman who has signed an agreement and is afterward discharged before the commencement of the voyage or before one month's wages are earned, without fault on his part justifying such discharge, and without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, a sum equal in amount to one month's wages as compensation, and may, on adducing evidence satisfactory to the court hearing the case, of having been improperly discharged, recover such compensation as if it were wages duly earned." That he was paid an extra month's wages of $80, in addition to the earned wages, making a total of $120.87, for which he gave a receipt before the United States shipping commissioner.
The wage provision, inserted as a voyage clause in the articles after he was signed, to which libelant refused to consent, reads: "Should any changes in the scale of wages of the crew employed on vessel, whose owners are members of the American Steamship Owners' Association, be made after the departure of this vessel, such scale of wages shall prevail on this vessel from date new scale is put into effect by the American Steamship Owners' Association."
Considering that libelant had signed the articles on November 29, 1921, and expressly refused to consent to the voyage clause, which was inserted on December 5, while the vessel was still in port, and before the voyage was commenced on December 8, 1921, he should have been then discharged and not thereafter, when he was discharged for the sole reason that he persisted in refusing to consent while at sea between New Orleans and Port Arthur, Tex., where the ship arrived December 12, 1925. Unquestionably the seaman had a right to stand upon the terms of his contract as originally signed, and he was within his right in refusing to consent to the objectionable clause.
Libelant contends that the action of the master in commencing the voyage and awaiting arrival at a port of call, there to discharge him, was a breach of his contract for which damages will lie, which should be measured by the wages he would have earned at the completion of the voyage, up to and including May 22, 1922, and subsistence; that the decision in the Howick Hall Case (No. 16785 of the docket) 10 F.(2d) 162, is decisive of this controversy; that seamen are the wards of the court, whose wage contracts will be jealously protected, in keeping with the general policy of maritime law; that the penalty of one month's wages prescribed by R. S. § 4527, is not the sole remedy afforded him, as the claimant insists; that R. S. § 4529 (Comp. St. § 8320), more properly applies; that the cases cited by claimant in support of its contention that the penalty of one month's wages discharges the vessel and owner of further liability are not in point; that the decisions in The Inland (D. C.) 271 F. 1008, Brown v. U. S. (D. C.) 283 F. 425, The Meton (C. C. A.) 287 F. 531, The George B. Ferguson (D. C.) 140 F. 955, and The Staghound and the Gamecock (D. C.) 97 F. 973, do not support claimant's contention.
Clearly the libelant was entitled to the protection of his rights of contract in the shipping articles as he signed them, by which his employment was assured him for a period of some four or more months at a fixed wage and subsistence. The cases cited on both sides, including the Wilson Case (D. C.) 210 F. 898, in which there was no discharge of the seaman, are not sufficiently in point to sustain the application of the penalties of either R. S. §§ 4527, or 4529, to the circumstances here presented, whether the penalties prescribed may be intended in the nature of statutory damages for breach of contract or not.
Congress could not have intended to deny seaman equal protection of the law, as applied to contracts generally, by the enactment of these statutes, intended to aid and give special protection to seamen. The decision of the late Circuit Judge Pardee, in The City of New Orleans (C. C.) 33 F. 683, is more nearly applicable to the situation here presented. In that case, where some roustabouts shipped on a river packet from Cairo, Ill., to New Orleans, and return to Cairo, were discharged on arrival at New Orleans, and paid their wages up to time of arrival, by direction of the owner, because the voyage was broken up on account of ice in the river at Cairo, held, that they were entitled to wages for the round trip. Although section 4527 had then been subsisting law since 1877, the case was decided in 1888, without any reference to it whatever.
Likewise in the T. P. Leathers Case, Natchez v. Price (C. C. A. 5th Circuit) 74 F. 845, 21 C. C. A. 145, where a roustabout shipped for a voyage from New Orleans to Waterloo and return, was discharged because incapacitated by a freezing of his hands by ice on the return trip at Vicksburg the wages and damages allowed him by the District Court were denied on appeal only because on his own testimony the libelant had voluntarily left the boat and was not discharged against his consent. Likewise in The White Seal (C. C. A. 9th C.) 194 F. 402, 114 C. C. A. 364, where the evidence was held to sustain a finding of the District Court that libelant was discharged without cause from his position as chief engineer of a steamer before the end of his contract term and entitled him to recover wages to the end of the term.
Considering that it does not appear in the evidence of record that libelant was a party constructively, as a member of a union or otherwise, to any general seamen's strike, or in any wise bound by any wage agreement that might have been reached between a union and the ship owners, or by any arbitrary decision of the steamship owners, so that his status was measurable only by his individual contract, appearing on the face of shipping articles at the time of signing; that on his direct examination the master testified that Adams was paid off at Port Arthur, Tex., on December 12, 1921, simply because "he would not agree to the wage scale," which means nothing except that he stood upon his contract as he made it — it is concluded that the libelant is entitled to the relief prayed for up to the amount of his wages from December 13, 1921, to May 19, 1922, inclusive. The amount claimed for subsistence is not sustained by evidence.
Accordingly there will be a decree for libelant in the sum of $414.50, less a credit of the $80 already paid him as a penalty, with 6 per cent. interest from May 19, 1922. Costs to follow decree.
On Motion for Rehearing.
This cause was heard upon a motion for rehearing filed by claimant, in support of which its proctor contends that, since the seaman was admittedly one who had signed an agreement and was afterwards discharged before one month's wages were earned, without fault on his part justifying such discharge, and paid all the wages he had earned, together with a sum in addition equal to one month's wages as compensation, the case falls within the very words of R. S. § 4527. He insists that the statute must be applied in this case as providing the sole remedy available to the libelant, or it must be read out of existence or declared unconstitutional. In his view the very words of the...
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