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FOWLES v. AMERICAN EXPORT LINES

June 13, 1969

Marcus A. FOWLES, Dominick A. Cannell, Benjamin Bellamy, Zenon E. Rivera, and Rafael Valezquez, suing on behalf of themselves and all other members of the unlicensed crew of the S/S EXCALIBUR, Libellants,
v.
AMERICAN EXPORT LINES, INC., Respondent



The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

 Plaintiffs, five crew members of defendant's vessel, S/S EXCALIBUR, brought this suit, purportedly as a class action, *fn1" to recover one month's unearned wages pursuant to 46 U.S.C. § 594. The facts developed at trial, by and large undisputed, are quite simple. The plaintiffs were signed on defendant's passenger vessel on March 2, 1964, for a voyage to one or more ports in the Mediterranean Sea. Three days later, while at sea, a fire broke out in the one and only galley on board ship when cooking grease flared as the cooks were grilling steaks. Despite efforts of the officers and crew to extinguish the fire, the galley was completely gutted and rendered inoperative for the service of regular hot meals to either the passengers or the crew. *fn2" The Master then decided to return to New York and the voyage was abandoned; the crew was discharged on March 7, 1964. All crew members were paid earned wages up to March 7, 1964, the last day each man worked. Plaintiffs now claim that they are entitled to one month's wages within the meaning of 46 U.S.C. § 594, while defendants maintain that under 46 U.S.C. § 593, defendants are not liable for the payment of any additional wages.

 These statutes read as follows:

 
46 U.S.C. § 594. Right to wages in case of improper discharge.
 
"Any seaman who has signed an agreement and is afterward discharged before the commencement of the voyage or before one month's wages are earned, without fault on his part justifying such discharge, and without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, a sum equal in amount to one month's wages as compensation, and may, on producing evidence satisfactory to the court hearing the case, of having been improperly discharged, recover such compensation as if it were wages duly earned."
 
46 U.S.C. § 593. Termination of Wages by Loss of Vessel; Transportation to Place of Shipment.
 
"In cases where the service of any seaman terminates before the period contemplated in the agreement, by reason of the loss or wreck of the vessel, such seaman shall be entitled to wages for the time of service prior to such termination, but not for any further period. Such seaman shall be considered as a destitute seaman and shall be treated and transported to port of shipment as provided in sections 678 and 679 of this title. This section shall apply to fishing and whaling vessels but not to yachts."

 The crucial issue for this court to determine is whether the S/S EXCALIBUR was wrecked within the meaning of 46 U.S.C. § 593 such that the plaintiffs herein would not be entitled to any wages other than those they had actually earned. *fn3" The case law is clear that if the EXCALIBUR was wrecked within the meaning of Section 593 whatever rights the seamen might have had under Section 594 would have been extinguished. Avgoustis v. Erini Shipping Co., 177 F.2d 461 (2d Cir. 1949). *fn4"

 Plaintiffs would limit the meaning of the word "wreck" as it is used in Section 593 to refer only to a vessel which is either sunk or absolutely unnavigable, but this court does not feel that such a narrow construction of the word "wrecked" is mandated by the case law or compelled as a matter of public policy. Rather, this court holds that a ship is wrecked within the meaning of Section 593 when anything happens to the ship, not within the control or fault of the owner, which renders the ship incapable of carrying out the maritime adventure in respect of which the seaman's contract was entered into. This is the accepted definition of the term as the English courts have construed it, see Barras v. Aberdeen Steam Trowling and Fishing Co., 1933 A.C. 402; The Olympic v. H. M. S. Hawke (1913). *fn5"

 In truth this definition is but a restatement of the longstanding American rule. Typical of the long line of cases holding thus is The Charles D. Lane, 106 F. 746 (D.D.C.1901) in which case the court upheld the above definition as follows:

 
"Under the circumstances shown it cannot be said that the act of the master in discharging his crew was a wrongful act. It was necessary for him to declare the voyage terminated. The necessity arose from encountering perils of navigation which all mariners understand may happen to any ship on any voyage. Every contract of shipment made by seamen is made in view of such a contingency; and when the contingency happens, and the voyage is broken up, without fault on the part of the captain or the ship, but wholly by force of the natural elements, it must be assumed that the contract is terminated in a manner contemplated and impliedly consented to by the parties, and the case does not come within the provisions of § (593) * * * A ship, to be lost or wrecked within the meaning of the words of that section, does not have to be completely destroyed. I hold that if a vessel is lost to her owners without fault on their part, or if she is so injured by encountering ordinary perils of navigation as to be unfit to complete the particular voyage commenced, the terms of the statute are met, and the seamen receive all they can legally claim when they are paid wages at the contract rate for the time of actual service." At 747.

 Accord, Flanagan v. U.S. and Brazil Mail SS Co., 30 F. 202 (E.D.N.Y.1886); The Staghound and The Gamecock, 97 F. 973 (D.Or.1899); The Quaker City, 290 F. 409 (D.Md.1923); Avgoustis v. Erini Shipping Co., 177 F.2d 461 (2d Cir. 1949). More recently, in Henderson v. Arundel Corp., 262 F. Supp. 152 (D.C.Md.1966) aff'd per curiam 384 F.2d 998 (4th Cir. 1967), the court adopted this definition:

 
"In order to come within the confines of (§ 593) it is not necessary that the vessel 'be completely destroyed, but that, if she is so injured by encountering ordinary perils of navigation as to be unfit to complete the particular voyage commenced, the terms of the statute are met, and the seamen receive all they can legally claim when they are paid wages at the contract rate for the time of actual service' with the ship. * * * (citing the Quaker City, supra) * * * It is only where it is alleged that the voyage has been terminated due to the fault of the master or the owner that the courts have recognized the possibility of a recovery by a seaman of a loss of future or anticipated wages." (262 F. Supp. at 155)

 If, however, the termination of the voyage was occasioned by the fault or negligence of the owner, or his agent, the Master, then there might well be grounds permitting a statutory recovery under Section 593. ...


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