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June 5, 1968

Kenneth JONES, Libellant,

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 The libellant, a seaman, seeks to recover overtime wages and transportation costs claimed to be due him as a result of an 18 day employment as a deck and engine yeoman aboard the respondent's liner the S/S "ATLANTIC", during December 1962-January 1963. These claims total $200.31. The libellant further seeks a sum equal to one month's compensation, or $461.76, pursuant to 46 U.S.C. § 594, contending that he was wrongfully discharged by the respondent before one month's wages were earned. Finally, the libellant invokes the penalty provisions of 46 U.S.C. § 596, claiming that his overtime wages have been withheld by the respondent "without sufficient cause" and that he is entitled to an amount equal to twice his daily wage for each day since January 4, 1963, when payment was due. At a rate of $14.89 per day, such penalty wages would exceed $50,000.

 In a cross-libel, the company seeks damages in the amount of $219.42 which it claims to have expended in overtime wages to others who were required to do the libellant's work for him.

 On December 17, 1962, the libellant applied for and accepted employment as a "relief" "deck and engine yoeman" on board the respondent's vessel, the S/S "ATLANTIC", which sailed from the Port of New York on December 19, 1962. Although his seaman's card bore a United States Coast Guard endorsement permitting the libellant to work as a yeoman, he had never before held that position.

 The terms and conditions of the libellant's employment were contained in the shipping articles signed by the libellant and the Master of the S/S "ATLANTIC", and in the Working Agreement between the libellant's Union, the National Maritime Union and the respondent.

 The libellant's wages were fixed at $461.76 per month and the articles provided that should a seaman prove incompetent to perform the duties of his position, "his wages shall be reduced in proportion to his competency * * *."

The Working Agreement provided that "Overtime shall in no case be worked without the prior authorization of the Master or persons acting by authority of the Master." (Working Agreement, Article IV, Section 2.)

 1. Claim for Overtime

 The libellant worked during the voyage under the direction of the Chief Mate and the Chief Engineer.

 The libellant testified that his duties as deck and engine yeoman required that he do all the clerical and typing work of both the deck and engine departments of the S/S "ATLANTIC", and that he could not complete this work during his regular working hours. He testified that in consequence he worked 73 hours overtime during the eighteen days of his employment on the S/S "ATLANTIC", and that he received prior authorization to perform such overtime work from the Chief Engineer with respect to engineering matters and from the Chief Mate as to other matters.

 He further testified that at the close of each day, he submitted "chits" for approval by his superiors, representing that day's overtime hours. At the trial, the libellant produced carbon copies of these chits; in several instances they were altered by handwritten annotations of hours worked or by evident erasures of matter originally set forth. The libellant admitted that the alterations were his but claimed that their purpose was to clarify the carbon imprint. The so-called copies of chits are not regular on their face, and no credible evidence was adduced to support their regularity. The libellant admitted that the chits which he allegedly turned in were not signed or approved by any representative of the respondent. At no time during the voyage did libellant complain of the absence of approval of his chits. As yeoman, it was the libellant's function to keep time records of crewmen in the deck and engine departments and to reflect the overtime chits on summary sheets. Libellant's name was not reflected as one of those entitled to overtime listed on the summary sheets.

 There was no credible evidence that the libellant's overtime work, if any, was authorized in advance as required by the Working Agreement. Although the libellant testified it was understood between himself and his superiors that he was to work overtime during the week and to render services on Saturdays and Sundays which would be treated as overtime work, the Chief Engineer denied this, and testified that at no time did he authorize the libellant to work overtime. The Chief Engineer further testified that he himself did work ordinarily assigned to the yeoman since the required work was not completed by the libellant during regular working hours and the libellant did not keep the required records on a current basis. Substantial entries in the engine room's smooth logbook were in the Chief Engineer's rather than the libellant's handwriting, although the chits would indicate that the libellant claims to have rendered overtime services for making such entries.

 The Chief Mate testified that prior to December 24, 1962 the libellant had not been authorized to do any overtime work and on that day he specifically instructed the libellant not to perform any work on overtime thereafter. The Chief Mate admitted that the yeoman's duties were ordinarily sufficient in volume so as to require overtime work but when he found that libellant was behind in his work to an unsatisfactory degree, rather than authorizing the libellant's overtime, he reassigned the libellant's duties to the ship's pursers to bring the work up-to-date. Accordingly, the pursers as well as others on the staff undertook and performed duties normally the function of the yeoman. The pursers were paid overtime wages for this work which involved between 60 and 70 hours of extra services.

 The Chief Mate testified libellant had not turned in any overtime chits for approval or otherwise. The Chief Engineer testified similarly, that he never saw any of the libellant's overtime chits although he would have ordinarily received chits relating to overtime work in the engine department. The Chief Purser in charge of payroll matters testified that no chits from libellant had ever been turned in and that libellant's name did not appear among those listed on summary sheets for overtime services reflected by chits turned in for payroll purposes.

 The evidence, including the demeanor evidence as well as the circumstances and probabilities fail to support the claim of the libellant for overtime wages; and the Court resolves the issues of fact and credibility in connection therewith against the libellant and in favor of the respondent. The libellant failed to establish by a fair preponderance of the credible evidence ...

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