United States v. Laflin

• Decision Date: 27 February 1928
• Docket Number: No. 5233.,5233.
• Citation: United States v. Laflin, 24 F.2d 683 (9th Cir. 1928)
• Parties: UNITED STATES v. LAFLIN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 683 (1928)

UNITED STATES v.LAFLIN et al.^*

No. 5233.

Circuit Court of Appeals, Ninth Circuit.

February 27, 1928.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

J. N. Gillett and H. H. North, both of San Francisco, Cal., for defendants in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge(after stating the facts as above).

Counsel for the government assert that the principal point involved on the writ of error is presented in their assignment that the court below in appraising damages failed to diminish the gross probable income of the venture by deducting therefrom the probable expenses and outlay, including the cost of service and wages of necessary employés.To that proposition are cited cases such as Guerini Stone Co. v. P. J. Carlin Co., 240 U. S. 264, 280, 36 S. Ct. 300, 307(60 L. Ed. 636) in which it was said: "No more definite or certain method of estimating the profits could well be adopted, than to deduct from the contract price the probable cost of furnishing the materials and doing the work."But the principle there involved has no relation to the present case.

The contention of the plaintiff in error is answered by the fact that the owners of the bark assumed no liability for the cost of the service of employés and were under no obligation to pay wages to the crew.The crew's compensation was provided for in the shipping articles.It was therein stipulated that, after the return of the bark to the port of San Francisco, each officer and seaman should be settled with and paid his share of the catch of said vessel in certain specified proportions, as soon as the quantity of her oil and bone could be ascertained, and the master and crew signed an article stating the particular employment of each, and providing that they should receive a stated share as indicated therein.It is admitted that the court below, in appraising the amount of damages, took into consideration all the probable outlay incident to carrying on the enterprise, other than the compensation to be paid to the crew, and deducted that amount from the sum total of the damages.

It has been the maritime law from the time of Oleron that agreements, by which seamen, engaged in a fishing or whaling voyage, are to receive for their services shares of the profits of the voyage, are contracts of hiring, and the shares so agreed upon are in the nature of wages, to recover which actions may be maintained after the end of the voyage.Wilkinson v. Frasier, 8 Esp. 141;The Crusader, Fed. Cas. No. 3,456, 1 Ware, 448;Reed v. Hussey, Fed. Cas. No. 11,646, Blatchf. & How. 525, 539;Coffin v. Jenkins, Fed. Cas. No. 2,948, 3 Story, 108;Crowell v. Knight, Fed. Cas. No. 3,445, 2 Lowell, 307.No claim was made in the court below, nor is any here presented, that the members of the crew might have reduced the amount of their damages by entering into other employment during the period of time covered by their contract.Nor is there evidence to support such a contention.

In its brief in this courtthe plaintiff in error contends that the owners should not be taken as representing the crew of the vessel or possessed of the right to recover under the act for the losses sustained by the members thereof, and it relies upon the provision of the statute that "all American citizens whose rights were affected" may submit their claims.No objection was taken in the court below to the nonjoinder of the members of the crew, and no question was made of the right of the owners to represent them in the action.Nor does any assignment of error direct attention to either proposition.

We find no difficulty in sustaining the trial court's conclusion that the owner could bring the action as representing the crew, and that within the meaning of the statute the latter might "submit their claims" through him, and might sue him for damages, if he neglected to prosecute the same.The statute confers jurisdiction "to hear and determine the claims of American citizens."It must be presumed to have been enacted in view of the well-settled principles applicable to the owner's right to represent the crew in such cases, and without intention to exclude from the amount recoverable the shares of members of a crew who were not citizens of the United States.

It is well settled by the decisions that in whaling ventures the sailors who have a certain lay or share in the proceeds as wages are never regarded as partners with the owners, though they may participate in the profits of the voyage; and it is...