The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
In this action by an injured seaman, plaintiff seeks to recover unearned wages to the end of the voyage, maintenance and cure, and transportation. Plaintiff also demands the statutory penalty of double wages for alleged wrongful withholding of "wages" under 46 U.S.C. § 596 (1964).
For the reasons amplified in this opinion, the Court concludes that plaintiff is entitled to the claimed amounts of unearned wages, maintainance and cure, and transportation. However, his claim for double wages is dismissed because no "wages" within the meaning of 46 U.S.C. § 596 (1964) were withheld.
It is alleged that on March 12, 1965, the S.S. Mormacwren was sold to defendant in Chester, Pennsylvania and renamed S.S. East Hills. Plaintiff, who had been employed on the Mormacwren, signed coastwise articles as a third assistant engineer on March 12, 1965. The vessel made a voyage from Chester, Pennsylvania to New Orleans where, on April 8, 1965, plaintiff signed foreign articles for a voyage from New Orleans to the Far East (via the West Coast), and back to a port in the continental United States.
It is further asserted that plaintiff fell ill in the service of the vessel without any fault on his part, and was forced to leave the ship on April 27, 1965 at the port of San Francisco, California, where he was hospitalized. Plaintiff signed off the vessel for medical reasons on April 28, 1965, with a master's certificate.
The complaint charges that upon discharge, the master paid plaintiff his earned wages through April 28, 1965 but refused to provide for plaintiff's transportation back to Chester, Pennsylvania. Plaintiff took a three-day bus trip from San Francisco to Baltimore, Maryland, his home. He claims he made several demands upon defendant for maintenance and cure, transportation, and unearned wages to the end of the voyage. Defendant's only payment to plaintiff to date has been $160. for maintenance and cure from April 29, 1965 to May 17, 1965.
Plaintiff argues that, as an injured seaman, he is entitled to the following relief:
(1) A sum of $1,257.00 which constitutes unearned wages from April 29, 1965 to June 16, 1965, the date upon which the voyage did in fact terminate. This claim is based upon the well-settled doctrine in admiralty that an injured seaman may recover the wages which he would have earned had he continued in the vessel's service.
(2) $392.00 for maintenance and cure from May 18, 1965 until July 6, 1965, the date upon which plaintiff claims he was declared fit for duty. This claim is also predicated on general American maritime law, which requires the owner of the vessel to provide for the maintenance and cure of an injured seaman until he is declared fit for duty. The sum of $392.00 was computed by using $8.00 per day as the base figure, this being the amount provided by the existing union agreement.
(3) Transportation in the amount of $322.33. Plaintiff asserts that, under Section 29 of the union agreement, he is entitled to a sum for "transportation" which consists of first class transportation, subsistence at $10.00 per day for each day of travel, and wages for each day of travel back to Chester, Pennsylvania.
(4) Double wages under 46 U.S.C. § 596. Plaintiff contends that the master's refusal to pay for the transportation requested and defendant's subsequent and continuous refusal to pay such transportation, were without sufficient cause and violate the statutory duty of prompt payment of "wages" under § 596, which imposes a penalty of "two days' pay for each and every day during which payment is delayed." Plaintiff seeks recovery of $77.20 per day for each day during the period beginning May 2, 1965 (four days after discharge) to the date when payment is actually made.
At the trial, defendant tendered judgment in the sum of $1,257.00 to satisfy plaintiff's claim for unearned wages and $392.00 to satisfy plaintiff's claim for maintenance and cure. Plaintiff accepted both tenders, which were made by defendant without admitting any of the facts underlying the claims.
The only claims requiring disposition by the Court are those for transportation and for the statutory double wages.
This opinion contains the findings of fact and conclusions of law which constitute the grounds of the Court's decision. Fed.R.Civ.P. 52(a).
The Claim for Transportation
The parties agree that the union agreement
(hereinafter "Agreement") controls the disposition of plaintiff's claim for transportation. They differ, however, in their interpretation of the Agreement, the controlling portions of which are set forth below.
Section 29, subsection 1(d) of the Agreement provides that a licensed engineer whose services are terminated for specified medical reasons in a United States port other than the port of original engagement is entitled to "[transportation] in accordance with this subsection of this agreement * * *." Plaintiff argues that the quoted phrase refers to subsection 1 of Section 29 of the Agreement, and more specifically to subsubsection (a) of subsection 1, which contains a built-in definition of the "transportation" to be paid. The constituent elements as so defined are: (1) first-class transportation; (2) wages for each day of travel; and (3) subsistence at $10.00 per day. Plaintiff, therefore, claims $215.44 for first-class transportation to Chester, Pennsylvania;
$76.89 for three days' wages while travelling;
and $30. for subsistence, - a total of $322.33.
Defendant, on the other hand, claims that sub-subsection (d) of subsection 1 and sub-subsection (a) of subsection 1 are to be treated as completely separate and distinct, the former dealing with injured seamen, and the latter only with the termination of a voyage at a port other than the original port of engagement. Defendant contends that an injured seaman is entitled only to the cost of transportation back to the original port of engagement, i.e., the fare plus $10.00 a day for subsistence while travelling; that he is not entitled to "wages" as provided in sub-subsection (a) of subsection 1 of Section 29 of the Agreement because the general maritime law allows the injured seaman to recover unearned wages to the end of the voyage, and that to require an additional payment of wages for each day of travel would result in a double recovery of wages, which would not have been intended by the contracting parties.
Defendant's argument is unpersuasive. Both sides agree that sub-subsection (d) covers the "transportation" to be supplied to an injured seaman. However, while sub-subsection (d) itself does not itemize the constituent elements of "transporation", it expressly declares that "transportation in accordance with this subsection " will be paid. The words "this subsection " mean subsection 1. Part of subsection 1 is sub-subsection (a). Nowhere in subsection 1, or anywhere else in Section 29, even under a most searching reading, is there any limitation of plaintiff's recovery to the items of first-class fare and subsistence. Sub-subsection (d) plainly serves the obvious purpose of enabling an injured seaman to recover "transportation" as defined in the Agreement, and, in the same manner as his more fortunate co-workers who, under sub-subsection (a), are returned uninjured to the port of original engagement upon the termination of the voyage.
The intendment of the Agreement is clear; there is no ambiguity. If the intention of the contracting parties were otherwise, as defendant argues, they failed to evidence such contrary ...