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UNDERWOOD v. ISBRANDTSEN CO.

October 15, 1951

UNDERWOOD
v.
ISBRANDTSEN CO., Inc.



The opinion of the court was delivered by: CONGER

Libellant sues for unlawful and wrongful discharge. He sues to recover for non-payment of his wages and subsistence from February 27, 1947 (the date of his discharge) to April 15, 1947 (the date when he obtained employment).

Respondent denies that the discharge was unlawful and wrongful and claims it was justified because libellant was not qualified to discharge the duties of Chief Engineer, but was incompetent and that by reason of his incompetence, negligence and failure to perform the duties required of him the vessel of which he had been Chief Engineer was seriously damaged.

 This lawsuit involves libellant's actions and conduct as Chief Engineer of the S.S. Julien Poydras on a voyage which commenced on November 17, 1946 at Boston and ended at Vancouver on February 2, 1947. In the meantime the vessel had touched the following ports: Savannah, Aruba, the Canal Zone, Honolulu, Yokohama and Kobe, Japan and from there on its homeward journey to Vancouver, B.C.

 The Julien was a liberty ship and owned by the Waterman Steamship Company, but on or about November 15, 1946 it had been taken over by respondent who operated it under a bare boat charter. Libellant, on the voyage of the Julien just preceding this one, had been the First Assistant Engineer. Just before this voyage started libellant was promoted to Chief Engineer of the Julien. He signed on as Chief Engineer on November 16, 1946.

 The Master of the Julien was opposed to the employment of libellant as Chief Engineer. He preferred another man because he was more experienced. The Master tried to prevent the appointment of libellant as Chief Engineer but was unsuccessful.

 This was libellant's first voyage as Chief Engineer. He had only obtained his license as Chief Engineer in June, 1946. Still, from his prior record he seemed to be well qualified and experienced. He was 50 years of age. He had been at sea since 1925. He had started as a wiper and worked his way up until finally he had received from the Coast Guard his license as Chief Engineer. He had been a licensed First Assistant Engineer since September, 1943. He had been a Second Assistant Engineer for six or seven months. Before that he had been an acting Assistant Engineer working on waivers.

 Somewhere in the interim he had been Chief Inspector for the Maritime Commission with the rank of Second Assistant Engineer. Since September, 1943 he had been on a number of ships as Assistant Engineer, among which were four liberty ships. He also took several short courses in a maritime school.

 In addition, libellant claims double wages pursuant to Sec. 596 of Title 46 U.S.C.A.

 When libellant was discharge he was paid his full wages to date. He had nothing more coming except that he had a claim for wages he might have earned from the date of his discharge to the end of the voyage or until he obtained employment.

 The above law was passed by Congress for the protection of seamen to secure prompt payment of seamen's wages and thus protect them from harsh consequences of arbitrary and unscrupulous action of their employers. The words of the Statute '* * * refuses or neglects to make payment * * * without sufficient cause' may not be interpreted to cover the situation presented here. Libellant was paid his earned wages. Failure to pay subsequent accrued wages at the conclusion of the ship's voyage does not justify exaction of douclt wages. Collie v. Ferguson, 281 U.S. 52, 50 S. Ct. 189, 74 L. Ed. 696; Page v. United States, 9 Cir., 177 F.2d 601. This part of the claim is disallowed.

 Respondent's contention is that 'libellant was not qualified, nor competent, to discharge the duties of Chief Engineer and libellant was discharged from said vessel by reason of his incompetency and for the safety of the vessel and the master, officers and crew thereof.'

 The burden of proving a justifiable discharge for the above reasons is upon respondent. I find that it has not met that burden.

 If the Captain believed that the Chief Engineer was incompetent and that the safety of the ship and those on board were endangered he could have discharged him anytime during the voyage. He did not do so. At the most he wrote a letter on December 5, 1946 to the owners of the vessel in which he again reiterated his protest against the employment of libellant over another man whom he preferred because of his larger experience. He does refer to certain difficulties that had arisen in the engine room but at no time did he recommend or suggest that libellant be discharged.

 He made no such recommendation until after the disaster of February 2, 1947 near Vancouver. Under date of February 12, 1947 the Captain wrote to the owners recommending the discharge of the Chief Engineer. His language was rather mild and rather general. His reasons given for the discharge of libellant were as follows: 'In view of the somewhat unsatisfactory conditions that have existed in the Engine ...


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