The Windrush

• Decision Date: 14 February 1918
• Docket Number: 161.,160
• Parties: THE WINDRUSH. THE RHINE.
• Court: U.S. Court of Appeals — Second Circuit

250 F. 180

THE WINDRUSH. THE RHINE.

Nos. 160, 161.

United States Court of Appeals, Second Circuit.

February 14, 1918

Both the craft named are vessels of the United States, within the meaning of that phrase as used in the statutes affecting ships and seamen. In 1906 both were at Buenos Ayres, the Windrush in May and the Rhine in October; both wanted crews and neither could get one (as is stipulated in writing) 'except by agreeing to pay one month's wages in advance. ' This means, as is fairly shown by evidence that the keepers of sailors' boarding houses, commonly known as 'crimps,' have in that port such control of seamen that no master can get a crew except by applying to them.

Both vessels got crews through a crimp; of the men shipped, some had actually stayed with the boarding master, or obtained supplies from him, or both; others had merely gone to him as a means of finding employment; all, however, were treated alike, viz. taken before the United States consul, and signed on the articles-- each man giving to the boarding master an advance note for one month's wage, the payment of which was duly noted. All the men so shipped knew what they were doing, and apparently regarded it as the custom of the port and a common incident of their trade; so undoubtedly did the master; nor is there any evidence that the captain or owner profited, directly or indirectly, by the transaction. They or their agents paid the advance notes before the ship left Buenos Ayres.

On arrival at New York, the libelants refused to recognize the charges or deductions, and brought suit for a month's pay apiece, as for so much wages wrongfully withheld. The court below awarded the amount claimed, and claimants took these appeals, which were argued together; the questions raised being identical.

Roscoe H. Hupper, of New York City, for appellants.

Silas B. Axtell, of New York City, for appellee.

Before WARD and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

HOUGH Circuit Judge (after stating the facts as above).

The facts of these cases are in all material aspects those recited in The State of Maine (D.C.) 22 F. 734. Judge Addison Brown there gave judgment as to whether the then seamen's statute, commonly known as the Dingley Act (Act June 26, 1884, 23 Stat. 55), entitled libelants such as these to a recovery; the present question is whether (assuming the correctness of the decision cited) more recent legislation, commonly known as the La Follette Act (Act March 4, 1915, 38 Stat. 1168), requires a different ruling.

The material words of the statutes may be put in parallel thus (some immaterial phrases being omitted or shortened):

1884

It is hereby made unlawful to pay any seaman wages before leaving the port at which he may be engaged, in advance of the time when he has actually earned the same, or to pay such advance to any other person, or to pay any remuneration (to one not authorized by act of Congress) for shipment of seamen.

Any person paying advance wages, or such remuneration shall be deemed guilty of a misdemeanor, and punished by fine and (at option of the court) imprisonment.

The payment of such advance wages, or remuneration, shall in no case absolve the vessel from full payment of wages after they shall have been earned, and be no defense to a libel for recovery of wages.

This section shall apply as well to foreign vessels as to vessels of the United States, and any foreign vessel violating the same shall be refused a clearance.

1915

It is hereby made unlawful to pay any seaman wages in advance of the time when he has actually earned the same, or to make any order or note therefor to any other person or to pay any person for the shipment of seamen when payment is deducted or to be deducted from a seaman's wages.

Any person violating the foregoing shall be deemed guilty of a misdemeanor and punished by fine, and (at option of the court) imprisonment.

The payment of such advance wages or allotment shall in no case absolve the vessel from full payment of wages after they shall have been earned and shall be no defense to a libel for recovery of wages.

If any person shall receive from any seaman any remuneration for providing him with employment, such person shall be deemed guilty of a misdemeanor and punished with fine or imprisonment.

This section shall apply as well to foreign vessels, while in waters of the United States, as to vessels of the United States, and any foreign vessel violating the same shall be refused a clearance.

The master, etc., of any vessel (domestic or foreign) seeking clearance from a port of the United States shall present his shipping articles at the office of clearance, and none shall be granted unless the provisions of this article have been complied with.

The Case of The State of Maine held that this portion of the statute of 1884 had no application to the employment of seamen by American vessels in foreign ports. That it was well decided we have no doubt, agreeing as we do with the reasons assigned, and considering the intellectual authority of a decision by that judge of the highest. The State Department, which, through the consuls, is charged with oversight of shipment of seamen abroad, accepted the ruling, and embodied it (with due reference to the decision) in the Consular Regulations (section 237); nor did the passage of the act of 1915 produce any change in departmental instructions. What governed the action of the consul at Buenos Ayres, when these libelants were shipped, was the rule of The State of Maine.

The only other interpretation of the Dingley Act thought instructive here is The Eudora, 190 U.S. 169, 23 Sup.Ct. 821, 47 L.Ed. 1002, holding the statute applicable to foreign vessels in American ports, mainly on reasoning more elaborately set forth in Wildenhus' Case, 120 U.S. 1, 7 Sup.Ct. 385, 30 L.Ed. 565; i.e., that any vessel and those on board her are subject to the civil and criminal law of the country into whose ports they come. Such subjection is one of the implied conditions of entry, which is a favor, and not a right. Unless there has been a change in the legal content of the statute, its interpretation must remain unchanged. So far as the language above given is concerned, there is but one change that can be relied on; i.e., that the application of the act to foreign vessels is expressly limited to waters of the United States, from which it is argued that the application to domestic vessels must be universal.

Of this it may be said that by the same train of reasoning some significance must be given to the section regarding clearances, in respect of which, for domestic ships, the act of 1884 said nothing. Must it then follow that prior to 1915 vessels of the United States violating the statute were necessarily entitled to clearance? Such a contention could not be made. Indeed, the argument for libelants proceeds mainly and frankly on the ground that the act of 1915 is in its entirety so obviously remedial that by it the status of seamen has been so radically changed, and the rigidity of their engagements so greatly relaxed, that it must have been intended to make the statute extraterritorially operative, and uplift sailors by putting on their employers the cost of a rascally way of doing business, over which this country has no direct jurisdiction.

Undoubtedly the methods of shipment exhibited in this record are vile and it may be admitted as within legislative power to improve the social customs of a contract breaker, by encouraging the act of breach; but w...