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FORSTER v. ORO NAVIGATION CO.

August 27, 1954

Keith W. FORSTER, Plaintiff,
v.
ORO NAVIGATION COMPANY, Defendant



The opinion of the court was delivered by: BONDY

The claims of the plaintiff, an able-bodied seaman, arise out of the alleged wrongful discharge by the defendant, the owner and operator of the S. S. Eugenie, at Piraeus, Greece, and the neglect of her master to pay to the plaintiff his earned wages at the time of his discharge.

The plaintiff signed articles on the Eugenie in San Francisco, October 31, 1950 for a foreign voyage, a month after the Eugenie departed from Baltimore on that voyage. About a month later plaintiff was elected by the ship's crew, union delegate, pursuant to an agreement between the defendant and the Seafarers International Union of North America, Atlantic and Gulf District (hereinafter referred to as S.I.U.) of which the plaintiff was a member. As such he presented to the master, Hans Mogensen, grievances of the crew as to food, draws, shore leave and sanitation.

 The master had trouble with some of the crew during the voyage or the Fugenie from Baltimore to San Francisco before the plaintiff joined the Eugenie as well as during the remainder of the voyage from the West Coast of the United States to Greece.

 On the arrival of the Engenie at Piraeus, Breece, January 19, 1951, seamen Bucker, Turner, Hightower, Podgurski and the plaintiff complained to the American vice-consul at Althens about conditions on the ship. Upon inspection Vice-Consul Harry Lofton found some of the complaints justified and held a meeting aboard the ship at which the master, the plaintiff and some members of the crew, including Buckner, Turner, Hightower and Podgurski, were present. In a deposition taken before trial he stated that members of the crew were not cooperative nor respectful to the master, that plaintiff did not encourage other members of the crew to maintain order and that all persisted in shouting their demands at once.

 On the right of the arrival of the Eugenie at Piraeus, while Mogensen was asleep in his cabin, Podgurski and Buckner, 'crazy drunk', broke into his cabin. After pointing a gun which he took from under his pillow at them, Mogensen ran to call the police. On his way, waiving his gun at plaintiff, he ordered the plaintiff, who was on gangway watch, to go up to his cabin and get the men away from his room, which plaintiff did. Eventually with the aid of the Greek harbor police Buckner, Turner, Hightower and Podgurski were taken off the ship and put in jail.

 Next day, January 20, 1951, plaintiff and the four seamen, who had spent the night in jail, appeared before Captain Mogensen, Vice-Consul Lofton and a United States Coast Guard Lieutenant Commander. Plaintiff was told that his wages would be paid in full if he would sign off by mutual consent. Plaintiff refused to do so. About half an hour later plaintiff was recalled and was told that he could remain on the ship if he would repent, change his conduct and resign as ship's delegate. Plaintiff refused to do so, stating that he never did anything wrong and that he refused to resign as ship's delegate because that was up to the crew. A half hour later plaintiff was recalled again and told that he must either sign off by mutual consent or get nothing, and plaintiff again refused to do so. Although the master testified that plaintiff was always given the opportunity to sign his pay voucher and obtain his wages, Vice-Consul Lofton, corroborating the testimony of plaintiff, stated that 'the master was willing to pay them off in the event that they would sign-off by mutual consent' (a practice which was discouraged by the Foreign Service Regulations of the State Department. FSR XVIII 4(i) July 9, 1946), that plaintiff refused to sign the articles, pay voucher or certificate of discharge, and also that plaintiff was offered his earned wages only 'provided he signed-off properly'.

 The court accordingly finds that no part of the plaintiff's earned wages were tendered to him at the time of his discharge or within four days thereafter otherwise than on conditions.

 The four seamen were discharged for misconduct January 20, 1951 and plaintiff next day was signed-off for misconduct. All five men were maintained by defendant in Greece and returned to New York City in the tourist class on another ship. Upon reaching New York plaintiff went to the office of the defendant and demanded his wages. The defendant, having received a letter from Captain Mogensen suggesting that the wages of the five men who were discharged be withheld pending a determination of the extent of the damage to the ship as a result of the disturbance on the 19th of January, refused payment.

 Thereafter plaintiff accompanied by a union delegate returned to the offices of the defendant and again demanded his wages and $ 50 were paid to him on account of his wages.

 The defendant admits that the plaintiff at the time of his discharge was entitled to the wages earned by him amounting to $ 270.35.

 As a first cause of action it is alleged in the complaint that the defendant failed to pay the plaintiff his earned wages at the time of his discharge 'without sufficient cause'.

 R.S. § 4529 as amended, 30 Stat. 756, 38 Stat. 1164, 46 U.S.C.A. § 596, provides that the master or owner of any vessel making foreign voyages shall pay to every seaman a sum equal to one-third of his earned wages at time of his discharge and the balance thereof within four days thereafter and that any master, or owner who refuses or neglects to do so 'without sufficient cause' shall pay to the seaman a sum equal to two days' pay for every day during which payment is delayed.

 The refusal or neglect of the defendant to make such payment if without sufficient cause rendered the defendant liable irrespective of whether or not the discharge was proper and irrespective of what happened after the discharge.

 A refusal to pay earned wages, that is 'arbitrary, willful, or unreasonable', is a refusal without sufficient cause. McCrea v. United States, 294 U.S. 23, 30, 55 S. Ct. 291, 294, 79 L. Ed. 735. The liability is incurred unless the refusal to pay earned wages is in some reasonable degree morally justified. Collie v. Fergusson, 281 U.S. 52, 56, 50 S. Ct. 189, 74 L. Ed. 696. See also Mavromatis v. United Greek Shipowners Corporation, 1 Cir., 179 F.2d 310, 315, 316. In the opinion of the ...


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