The opinion of the court was delivered by: BYERS
This cause was instituted by five sailors and the cook of the auxiliary schooner yacht Marie Anna, to recover for wages, transportation, subsistence, penalties, etc.
An answer having been filed, the cause came to trial on December 20, 1940, when an amended libel was filed, in which the claim for penalties was abandoned, and it was asserted that the libelants were entitled to recover for wages, transportation, subsistence, damages, etc., amounting in all to $8,000, made up as follows:
Three days' wages $ 33.00
Wages to end of voyage, from
August 15, 1940, to April 23,
Maintenance for time spent
ashore since date of alleged
Transportation to Dubrovnik,
Yugoslavia, at $600 per man
The Marie Anna is a three-masted schooner rigged yacht, of American flag and registry, having a single screw auxiliary Diesel motor of 175 horse-power. She is 120 feet long on the water-line and 172 feet over-all, and has a beam of 24 feet, and her gross tonnage is 147 and her net 139.
These libelants signed on at Dubrovnik, Yougoslavia, on April 24, 1940, of which country they are natives. The articles are in English but were translated by a competent official and, according to the testimony, were understood by the men. They are as follows:
"We the undersigned members of the crew agree to serve on the Yacht 'Marie Anna' on a voyage from Dubrovnik2
to Naples, and Florida U.S.A. and to any port the master may deem necessary, for the period of twelve months and/or in the event of the yacht being laid up, and any member of the crew being paid off, his passage to be paid back to Dubrovnik2,
and wages to continue until date of arrival.
"In the event of any member of the crew dissbehaving
himself he will be liable to be paid off at any port the master deems necessary. Also in this case the home passage to be paid.
"All members of the crew to conduct themselves in a proper manner, and to obey the lawfull
instruction of the master.
"All members of the crew to assist each other when necessary, no smoking allowd
on deck or in boat during working hours.
"The crew to be reasoneble
found by the master and fresh vegatables
"All clothes supplied are owners property, and must be left on-board when leaving."
The wages are stated on a weekly basis but there is no provision that they were payable weekly or otherwise, or prior to the end of the voyage.
The vessel arrived in Charleston, South Carolina, about July 10, 1940, and eleven weeks' wages had then been earned by the libelants; a draw of $5 was then paid to each member of the crew without comment or objection.
On July 30th, the vessel arrived at Whitestone, New York, at which time thirteen weeks' wages had been earned, of which nine were paid.
That fact is stated to have been a cause for grievance on the part of the libelants.
On Saturday, August 11, 1940, the yacht arrived in Oyster Bay, where she came to anchor, and the non-payment of the four weeks' wages seems to have been the subject of discussion among the crew and with the master.
It should be stated that the owner, Audrey Emery Djordjadze, was on board during this entire time, as was her husband, Prince Dmitri Djordjadze, who acted as the spokesman for his wife.
The owner and her husband had been advised by the Yugoslavian Consul, when he visited the yacht in Charleston to attend to formalities concerning the papers of the members of the crew as foreign seamen, that under the law of Yugoslavia the owner had the right to withhold, at all times and until the crew was finally paid off at the end of the voyage, four weeks' pay, as a precaution to guard against the men's jumping the ship.
Whether that was sound advice or not requires no present discussion or decision, and reference to it is made merely to explain the situation as it existed on August 12, 1940, when these six libelants announced their intention of going ashore in a body, leaving the vessel at anchorage while they visited New York, ostensibly to see the Yugoslavian Consul in reference to this subject.
I am satisfied that the owner believed that she was acting within the law of Yugoslavia as to the four weeks' wages, and that it was her duty to prevent the men from entering this country illegally by abandoning their employment while in these waters.
The crew of the yacht consisted of the captain, mate, engineer, steward, and cook; and the five seamen who, with the cook, comprised the libelants.
Babajko signed on as boatswain, and his wages were $: 3 5s a week, as contrasted with the other men, whose wages were $: 3.
He professed on the trial that the designation of boatswain was not of his seeking, but the fact is that he recruited the five other men as seamen because they were friends and neighbors of his and he believed them to be competent. The impression that he gave as a witness was, that he was satisfied with the authority and extra pay of his position, but was reluctant to admit any coincident responsibility.
On Monday morning, August 12th, these six men were called at six o'clock, and the cook prepared their breakfast, and at eight o'clock they all appeared on deck in their shore clothes, and announced to the mate that they proposed to go ashore and visit the Yugoslavian Consul in New York; the mate informed them that they could not do so without the consent of the captain ...