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Borup v. Western Operating Corp.

July 30, 1942


Appeal from the District Court of the United States for the Southern District of New York.

Author: Hand

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a decree disposing of a libel in rem against the American whaling ship Ulysses, and in personam against her owner and master, for wages and damages upon a voyage in 1939 and 1940. The libellants signed the articles in Sandefjord, Norway, about September 19, 1939, before an American consular officer; they also signed at the same time a separate printed cointract with the owner, which is the important document here. This described the duration of the voyage in three alternate ways: "(a) * * * from Sandefjord on a whaling trip to the Antarctic and thence to Sandefjord or port of discharge"; (b) for a period of one season"; "(c) until signing off, which can only take place at Sandefjord." The parties did not mark on the contract which of these was to govern, though the printed form directed this to be done; since, however, the case has proceeded on the assumption that the first option was incorporated, we shall treat the voyage as being from Sandefjord and back to Sandefjord "or port of discharge." The wages were a base pay prescribed in each contract and a bonus. There were also incorporated in the contract an "Arbitral Award" between the Norwegian Seamen's Union and the Whaling Employers' Association on September 13, 1939 and another agreement between the Association and three Norwegian unions, dated September 12, 1939. Some provisions of the "Arbitral Award" should be stated.

Par. 4

"1. Wages run from and including the day of entering the service until discharge occurs."

"16. Money shall not be paid out on the journey except upon arrival at unloading ports where money may be paid out in amounts up to one-half month's wages."

"17. The wages continue running under all circumstances until the crew's arrival at the place of signing on."

Par. 8

"2. The crew-member may be discharged wherever the Company should so desire. In case of discharge, the crew-member can claim free travel and full pay to the place of signing on."

"3. If the crew-member himself desires to be signed off at a place other than the place of signing on, and this is granted, his wages shall then cease and travel expenses home disallowed."

"7. If the manager so desires * * * it is the duty of the crews to spend the winter in any foreign port whatsoever. The crews shall receive for wintering in such cases an addition of 50% to their wages."

The Ulysses left Sandefjord on October 7, 1939 and stopped en route at St. Helena Bay, Cape Colony, to fuel the "killer" boats. While approaching the harbor on November 24th she struck a rock, not shown on the latest chart (1937, and suffered such damage that she had to put in to Durban, Natal, for temporary repairs. These were completed by December 22d and the catch was begun on December 29th, three weeks after the season opened. The commissioner has found that the Ulysses carried the latest chart, and that the grounding was not due to her negligence, and the judge affirmed the ruling. At the close of the season the vessel started for Sandefjord, where she would ordinarily have arrived on May 1, 1940; but on April 10th she learned of the President's proclamation, No. 2394, 54 Stat. 2693, promulgated that day under the Neutrality Act, 22 U.S.C.A. ยง 441 et seq. which forbade all American ships to go to Norway then occupied by the Nazis. She therefore made for New Orleans, where she arrived on April 26th and where she discharged her whole cargo of whale oil. (Some of the catch was brought in another bottom to Carteret, New Jersey.) She then went to New York for permanent repairs, arriving on May 10th, and by May 15th the whaling voyage was over for all purposes for which the seamen were needed, except that a few of the crew were kept to man the navigating and engine rooms and to victual the ship.

At New Orleans the immigration authorities had served notice upon the master to keep on board all the libellants because they were aliens, and a similar notice was served at New York on May 10th. In pursuance of these, all were detained except for occasional shore leaves granted, and except 96 of the crew of 250 who "shipped foreign" on other vessels. The master posted a notice on the ship that any members of the crew who wished to "ship foreign" would be allowed to do so, and those who did, signed off. On June 29th the Ulysses went to the Robins Dry Dock in Brooklyn to be converted from a whaler into an oil tanker. Some members of the engine room and some cooks and stewards stayed on board and performed the usual duties of their employment; there is no dispute that they are entitled to their base wages until their service terminates. The others, after May 15th and until September 1st, did various jobs around the ship which the master assigned to them, jobs unlike anything required oin a whaling voyage; but after September 1st they were ordered not to work any more, though they continued to live on board. The commissioner found that the value of the services rendered ...

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