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February 9, 1942


The opinion of the court was delivered by: INCH

INCH, District Judge.

Libellant, a young man twenty-five years old and a seaman of considerable experience, has brought this suit against the respondent, Waterman Steamship Corporation.

On or about June 11, 1940, at the port of New York, libellant duly signed shipping articles and became a member of the crew, in the capacity of wiper in the engine room, of the steamship Raphael Semmes a vessel owned by respondent. The vessel was to proceed to the Far East and back, possibly via the Suez Canal, to New York.

 The wages of libellant were to be $70, per month and found, plus a specific war bonus when the vessel reached certain designated ports all of which were clearly specified in the shipping articles duly agreed to by libellant as well as by the other members of the crew.

 Honolulu, Hawaii, was not a port where any bonus was directly or indirectly contemplated. At this port no cargo was taken on or discharged and the only purpose of stopping there, for a few hours, was made necessary by refueling. The crew of the steamship deserted at Honolulu in circumstances which will be briefly stated later and libellant was not paid for the voyage from New York to Honolulu. Nevertheless, libellant now sues the respondent for his wages on the ground that he is entitled to them, together with all the other emoluments covered by the agreement, plus the penalty allowed by law in certain circumstances.

 The libel contains three causes of action. The first cause of action in substance charges that he "duly performed his services and all of the terms and conditions of the articles of agreement on his part and was ready and willing to continue to render services on board said vessel pursuant thereto but was left by the vessel and the officers thereof at the port of Honolulu, Hawaii, while it was there in July 1940". (Paragraph Fifth of the libel).

 It then goes on to allege that by reason of the unlawful breach of contract and articles of agreement libellant was entitled to his earned wages, his wages to the end of the voyage, his war bonus and his lodging and keep at Hawaii. The steamship Raphael Semmes returned to the port of New York December 4, 1940.

 The actual amount of wages on the voyage from New York to Honolulu (June 11, 1940 to July 16, 1940 one month, six days, at $70, a month), was $84, from this is deducted social security tax $1.20, advances at Newport News and Honolulu $10, slop chest $6.49, making a total of $17.69, leaving the sum due of $66.31, plus of course the other items and penalty claimed for the remainder of the voyage which libellant did not take and the cost of his lodgings prior to his ultimate return to this country which did not occur until October 11, 1940.

 The second cause of action relates to the recovery of these wages amounting to $66.31 together with wages plus the penalty provided in Section 4529, U.S. Revised Statutes, 46 U.S.C.A. § 596.

 The third cause of action has been withdrawn. It related to libellant's clothing and personal effects which he left on the Raphael Semmes at Honolulu, but which he received back later when he returned to New York.

 The answer of the respondent admits that in June, 1940, libellant joined the SS. Raphael Semmes at New York in the capacity of a wiper and signed shipping articles providing for the payment of wages at $70, per month with a bonus, etc., and that libellant did serve on board the said steamship until she touched at Honolulu on July 16, 1940. The respondent then proceeds to answer that the vessel when she left New York was bound for far eastern ports, that she called at Honolulu on July 16, 1940, for the purpose of fueling only and with the intention of remaining there for only a few hours. That libellant, together with the other members of the crew, deserted the vessel and went ashore without leave and failed to return at the posted time for sailing and further neglected and refused without reasonable cause to join the said Raphael Semmes and to proceed to sea in her and the Raphael Semmes was obliged to remain at Honolulu for many days in consequence of this desertion of the libellant and the other members of the crew and their refusal to join the vessel and to proceed to sea. That by such desertion libellant forfeited his rights to the said wages, etc. That by reason of the absence of libellant and other members of the crew without leave within twenty-four hours of the vessel's sailing from Honolulu, respondent was obliged to incur the expense of detention, the expense of hiring substitute members of the crew at the port of San Francisco, paying their transportation expenses from San Francisco to Honolulu, and subsequently paying their transportation expenses from New York to San Francisco.

 The amount in suit is small, nevertheless, an Admiralty court is zealous, regardless of extent, to protect seamen from overreaching conduct on the part of those by whom they are employed on a ship. On the other hand, the law requires a seaman to duly perform his signed agreement.

 The issue therefore presented must be determined by finding whether the facts, and fair inferences therefrom, show that libellant did desert his ship at Honolulu. This is so for the reason that Congress pursuant to the Act of June 7, 1872, has provided that any seaman, such as libellant, by desertion of his ship, forfeits "all or any part of the wages or emoluments which he has then earned." 46 U.S.C.A. § 701, R.S. § 4956.

 Such desertion must be a voluntary act on the part of the seaman and it has been defined as consisting in the abandonment of duty by quitting the ship before the termination of the engagement without justification and with the intention of not returning. The City of Norwich, 2 ...

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