THE ECLIPSE, MARTIAL et al. v. THE ECLIPSE et al, (District Court. N. D. California.
SEAMEN-WAGES-PAYMENT IN AD'\'"ANCE.
December 14, 1S92.)
The agent of certain boarding-house masters made an agreement with the -owner of the Eclipse to furnish a crew of 12 men for $200, and took from suc)J.. crew orders on the captain, payable 24 hours after the salling of the. Eclipse on a voyage from San Francisco to a port in British Columbia. ,The orders, the ostensibl!! objl'ct of which was ,to pay bills due for board and outfit, were drawn in favor of the masters, but in every instance the sum named. in the order exceeded the indebtedness of the seaman. The orders were paid when due, and the agent re:ceived. $32 from boarding-house masters, who kept the balance. At the end of the voyage the owner paid each seaman, deducting the amount of his order, and took a receipt in full. Held, that in a court of admiralty the seamen were entitled to be paid their full wages, reduced by the actual sums due for board and outfit instead of by. the amount of the orders, notwithEtanding the giving of the receipts in full. Act June 26, 1884, as amended by Act June 19, 1SB6,forbidding the payment of advance wages to seamen except for certa1n purposes, and according to allotment made under regulations prescribed by the secretary of the treasury, must be construed as applying to the trade between the west· ern coast all-d the ports of British Columbia, especially in view of the fact that for more ,than six years this construction has been adopted by the secretary in the rpgulatlonil prescribed by him. The State of Maine, 22 Fed. Rep. 734; U. S. v. King, 23 Fed. Rep. 13S; and The Samuel E. SprIng, 27 Fed. Hep. 71:l4,-distinguished.
SAME-CONSTRUCTION OF STATUTE.
In Admiralty. Libel by Thomas Martial, Nils Hansen, Ambrose Pablete, Thomas Hosford, Frank Wallace, George Peterson, Emil Menendez, and William Morris against the ship Eclipse for balance of seamen's wages. Libel dismissed as to libelants Menendez and Mor· ris. Decree for other libelants. H. W. Hutton, for libelants. S. Bloom, for claimants.
MORROW, District Judge. This is an action for balance of seamen's wages. The libelants shipped on board the ship Eclipse, at the port of San Francisco, on the 7th day of SfJptember, 1892, for a voyage to Port Angeles, in the state of 'Vashingion, thence to Nanaimo or Departure bay, in British Columbia, and return; wages, $25 per month. The voyagt\ was completed, and libelants discharged in the port of San Francisco, November 1, 1892. The wages of each seaman for the .oyage amounted to $45.83. During the '\'"oyage, some of them received small sums of money and a few articles from the slop chest, but the present controversy is with respect to deductions made from the wages on account of certain advance notes or orders given by the libelants before the commencement of the voyage. It appears that one John Savory, acting for certain boarding· house masters, made an agreement with Andrew Anderson, the man· aging owner of the vessel, to fUl'nish him with a crew of 12 men for v.53F.no.2-18
the voyage, for $175. Tbis agreement Savory failed to keep, but another agreement was made, Ullder>whiblr Savory furnished Anderson a crew of 12 meJ1 for$AQO. For. the payment, of, tJ1is sum of $2(.l\), Savory tookfrom the advance notes or orders upon the captain of the vessel;bi favor 6f the boardmg-house ml1sterS, 'payable 24 hours after the sailing of the. vessel. Eight of the men shipped gave advance orders in the sum of $15 each, and four gave orders in the SUUlQt·$20 each, making ,the full sum. of $200; These advance orders :were paid to Savory the day after the vessel .sailed, by Anderowner, and Savory paid this. money to the boardmasters, frorothem $2.50 on order, and $20, order, the, bp;;trding-house master retaining the balthat the' boarding-house masters had small bills agaitllitJhe seamen for that they furnished a small outfit from, $11» $3 in each case, but in no case did the boardaJildouWt amount 1:9 more than $9, and in one case it was less than $3. .,The ostensible purpose of the advance orders was, thereto the boarding-house masters, but in fore, to pay these bills every instance the sum mentIoned in the Ol'derexceeded the indebt· edne$il giving, the order."WhenAn,derson, the managing owner of the vessel, paid the crew in San Francisco at the end of thel'yoyage, he deducted the amount of the advance order, and took without any made onthe part of; -!Me As stated, Anderson paId the orders the day. after'; ,the 'vessel' sailed, and of course before the wages to the amolint:of,theorder had:been earned. ' It is now claimed on the part of the libelants-First., that the whole to orderswltS in fraud· of their rights, deducting from their wages sums of, money in excess of 'w4at they have been required to pay TInder any cir· secondj ti:l,at the payment of the orders was the payment of advance wages, and was contrary to the provisions of section 10 of the act of June 26, 1884, (23 St. at Large, 55,) as amended by section 3 of the act of June 19, 1886, (24 St. at Large, SO.) The managing owner of the vessel meets the first claim by saying that he paid the advance orders in full; that it was not for him to inqnire whetherdha ::seamen who gave them were in debt in the amount stated in the orders; that· when he paid the crew their wages they receipted in full, and made no complaint, and did. not object to the deducttons. The anSwer to this defense is that the managing owner made a bargain with Savory for a crew of 12 men for $200 after a pllev-ious agreement for the same number of men for $175 had failed; in other words,he fixed the advance wages himself,and left it to those :who should furnish the men to make whatever they could out of the transaction. We are not surprised, therefore, to. find that the amounts received by some. of them in board and outfit were very small. The terms of the agreement would naturally lead to that resuIt. The fact that the men receipted in full for their wages after the voyage' was over is no answer to such a transaction in a court of admiralty. As was well said in Rosenthal v. The Die Gartenlaube, 5 Fed. Rep. 827, 830:
"A party colluding with a master to· cheat the ,seamen out of a part ot their wages. or to induce them to apply their wages in anticipation of payment to any purpose not shown to be for 'their own good, will receive no relief in a court ()f admiralty. Of course, after they are paid their wages they can expend the money as the:r like; but paymfnt in anything else than money, though with' their consent, will be most rigidly scrutinized, and must be clearly shown to be proper ana equivalent to the payment of the money itself to them."
Courts of admiralty do not "gi've any effect to the receipt of a sailor for his wages, whether sealed or parol, unless there was an actual payment." See 2 Pars. Shipp. & Adm. 41, and cases cited. There is no difllculty, therefore, in arriving at the conclusion that the libelants are entitled to be paid their full wages, less deductions for actual sums due for board, outfit, and cash reeeived. This right they have without regard to congressional legislation upon the subject of seamen's wages. But the next question requires an examination ·of such legislation. The libelants claim that the payment of advance wages is in violation of section 10 of the act of June 26, 1884, as amended by the act of June 19, 1886, which provides that such payments shall be no defense to an action for the full amount of wages. That section pl'Ovides as follows:
"That it shall be, and iii hereby, made unlawful In any case to pay any seaman wages before leaving t4e port at which such seaman may be engaged, in advance of the. time 'rllen he uas actuallY earned the same, Ol' to pa.y such advance wages to any other person, or to pay any person, other than an officer authorized by act of congress to collect fees for such service, any remuneration for the shipment of seamen. Any person pa.ylng such advance wages or such remuneration shall be deemccl guilty of a misdemeanor, and, upon con,"iction, shall be,punished by a fine not less than four times the amount pf the so ad,·anced or relll,uueratiou so paifl, and may be also imprisoned for a period not exceeding six months, at the discretion of the <lourt. 'l.'be payment of such advance wages or remuneration shall in no case, except as herein provided, absolve the vessel, or the master or owner thereof, from full of wflges after the same shall have been actually earned, and shall be no defense to a libel, fuit, or action for the recovery of such wages: provided, that tills section shall not apply to whaling vessels: and provided, further, that it 8hall be lawful 1'Ol' any seaman to stipulate in his shipping agreement for an allotment of any portion of the wages which he may earn to his wife, mother, or other relative, or to an ori..,oinal creditor in liquidation of aqy just debt for board or clothing which he may have contracted prior to engagement, not exceeding ten dollars per month for (-ach month of the time usually required for the voyage for willell the seaman has shipped, under such regulations as the secretary of the treasury may prescribe, but no allotment to any other person or corporation shall be lawful; and any person who sllall falsely claim such relationship to any seaman in order to obtain wages so allotted shall, for every such ofi'ense, be punishable by a fine of not exceeding ll,"e huudred dollars, or imprisonment not exceeding six months, at the discretion of the court; and any master, owner, consignee, or agent of any foreign vessel .who has violated this section shall be liable to the same penalty that the master, owner, or agent of a vessel of the United States would be for a similar violation."
Under the authority conferred by this section, the secreta,ry of the treasury, by a circular dated June 21, 1886, prescribed regulations .for the allotment of ,,,ages for certain voyages between ports 1'l'\ tae several coasting districts and between dome$tic and forei,gn ports, including Atlantic ports in the dominion of Canada, andw-
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marine service. It has been one of the methods em.ployed to defraud the seaman out of a large share of his wages, and, prior to con· gressionallegislation upon the subject, courts of admiralty were continually called upon to interpose their power and authority for the protection of the seamen from this method of imposition. The reports are full of cases declaring in the strongest terms the many schemes that have been devised to obtain possession of the sea· men's wages, even under the form of law. In McCarty v. The Gity of Bedford, 4 Fed. Rep. 818, Judge Benedict held that wages earned bJ' a seaman in the coastwise trade of the United States were not subject to garnishment; and he based his decision upon principles older than any statute. He said:
"In conclusion. I may add that the l'Ule exempting wages from garnishment springS out of the !Sharp necef'sity whicq the nature of his. calling casts upon the seaman when he leaves his ship. A seaman is compelled to be impro"· ident. '''hile at sea the ship is his h(inse. and his daily bread he must receive from the hands of the :lhIp's master. His wages cannot be paid him day by day. but mnst be allowed to accumulate in the hands of an unknown oWller.When the voyage is over he must at oneeprovide himself with temporary shelter and with fopd, and fol' 1;bat purpose he must have money In bis hand. Therefore it is that his wages are nailed to the ship, and therefore it is that, as in the ancient days of the Consolate, so now the law is force,l to declare that no film can be permitted to· say anything or do anything to deprive the seaman of the right to demand his wages when he .leaves the ship."
The purpose of the act of June 7, 1872, was to incorporate this wellestablished principle of maritime law into a system for the protection of seamen engaged in the merchant marine service of the United States, but it was found in the practical operation of this act that some of its features imposed unnecessary burdens upon vessels engaged in the coastwise trade and in voyages to neighboring ports in contiguous territory, and such vessels were accordingly relieved from its provisions by the acts of January 15, 1873, and June 9,1874. The act of June 26, 1884, revised the law upon the subject of shipping, and removed certain burdens from American vessels. It also specially provided, in section 10, against the payment of advance wages to seamen in any case, but provided for an allotment of wages with certain limitations. It also provided that the section should not apply to whaling vessels. The law was again revised by the act of June 19, 1886, and further provision made, in section 3 of that act,. for the allotment of wages, under such regulations as the secretary of the treasury might prescribe, and the law made applicable to foreign, as well as American, vessels. This is the state of the law at present. The purpose of congress is neither obscure nor uncertain. It clearly intended to prohibit the payment of advance wages in every case, except where the employment is on a whaling vessel. This exception establishes the otherwise general character of the provision, and the court is not at liberty to add any other exception to the statute. The case of The Samuel E. Spring, 27 Fed. Rep. 764, was a libel for wages earned on a voyage from New York to Havana and Matanzas, and thence to Boston. A vessel on this voyage, being engaged in trade with the West India islands, was excepted from the provisions -of section 12 of the act of June 7, 1872, by the act of January 15,
was' therefore' exceptMfrom the provi· sions qf:the ,act of :June 26, The case is,l1owever, interesting in its itrMtmentof the question of advancBiwages, anq..dnthat respect is an authority upon Jthe' question mow under com\ideration. The libelantllgaYe evidencerthat, at the tUne of their shipment, a Yerbal agreement, differing :.(rom that expressed in the shipping articles, was made by them with the Bhippingagent, by, which the monthly rate of wages was to be greater than, that expressed in the shipping articles,' and that one month's wages' ivas paid to each man in advance before:sailing. ' The men were to: receive, partly in advance and partly at the end of the voyage, the wages verbally agreed upon, and shipping'articles were: signed, making no provision ,for advances, but show!p.ga rate of wages which, with the sums advanced, gave the to have by the verbal agreement. The offered,:to pay, in accordance with the verbal ,agreement. !:Those who were, paid gave receipts in full." The second mate 'iWM0ffered his wages, but he refused to accept them, and 't;he amount que him, by the verbal agreement with· the smp. paid, hiIn),n advance. The snit was, in HQ'OOt. again the wages paid in advance. The court held that the seamen, having been paid in full in accordance with the terms of their verbal agreement, were not entitled to recover the same wages a second time, and gave eft1ect to their receipts; but it also' hel« 'that' the second mate was 'entitled to· recover his ,wages accordirig toithe verbal contract without deducting the payment made to hiram aidvance.Incommenting:upon the provision of the< statute prohibiting advance wages the court said: ' ,
ptltlSeDt case, that,
the ,claim dbes! not appear ,to have been) made, as in the
"Thcf rille 'i;uidoubtedlyt$ that statutes are to receive Il: reasonable construction, :atlddoubtful words and phrases are toibe constJ"lled, If possible, so as not'to :p't()d\iqe! miscblevousreBUltil. Bnt,when the words ulled are plain and unambiguoull, there ,is ,110 room for cons1iruction, and nothing is left for the court Qut, #>give ,to them their full '1'4e act pr04ibhs, in direct and positive ternis,the payment of advance wages to seamen before leaving port, anddecIares'-thiit Such payttlent shall in: no cilSe absolve 'the owner, mastel', , or vessel from tun payment of wages, or be a defense to a suit for their re,they are earned. It I,n terms, to all voyages except whaling.: ",()yage,s., Its prohibition must: clearly extend to indirect as well asdll'ect pa,yroents. The illegality of, tte payment was Wholly on the side of theownei:. it would be absurd, as well as a palpable disregard of the leglrn'tent;to hold that'themw can. be evaded by merely having the sea· men sig» fi",'titious. shipping artir.les, which do not express, the rate of wages actually agreed upon and intended to be paid for the voyage." I am obliged 1:.0< hold that tbe second illate can recover his wages according to the verbal contract, Without deducting the payment in New ,York,"
It may be further obserV'ed,with respect to the cases cited, that theyweredooided prior to the amendatory act of Ju,ne 19, 1886. The authority,::conferred upon the, secretary of the treasury, by thb. amendaio1y act, to prescribe regulations for the allotment of wages, and his execution of thB.t'authority;is entitled to respectful considera· tion in construing the lM!ltltionas amended, particnlarly in view of the fact that these l'eglilatibns'have beeidn'force now for more than six years. Under this author-ttYt the, has dete:"Dlined that ad-
vance·wages are forbidden; and that vessels engaged in the coastwise trade,and in the trade between Atlantic ports and the dominion of Canada, and between Pacific ports and British Dolumbia, are subject to tlle statute. This detel'lXlination cannot be disregarded withQut the clearest reasons for a contrary view. ''In all cases of am· biguity, the contemporaneous construction, not only of the courts, but of the departments, and even of the officials whose duty it is to caruy the law into effect, is uIDversall;y held to be controlling." Schell's Ex'r v. Fauche, 138 U. S. 562-.572, 11 Sup. Ct. Rep. 376. See, also, Railway Co. v. Phelps, 137 U. S. 528--536, 11 Sup. Ct. Rep. 168; Merrittv. Oameron, 137 U. S. 542-.552, 11 Sup. Ot. Rep. 174. It follows that the payment of the advance notes or orders is no defense to this action; and a decree will accordingly be entered for the libelants, as follows: Thomas Martial, $15; Nils Hansen, $15; Ambrose Pab· lete, $20; Thomas Hosford, $15 iFrank WaUace, $29; George Peter· son, $15. The libelants Emil Menendez and William Morris having failed to prove their claims, the libel is dismissed as to them.
THE PIONEER. McNEIL et aI. v. THE PIONEER. (District Court, D. New Jersey. December 12, 1892.) 1. MARITUl:E LIEN-WAIVER. An agreement to accept, in payment for certain.machinery furnished a steam tug under a written contl'act, a promissory note, payable four months after date, does not in itself constitute a waiver of the lien against the tug for the contract price, especially where it Is not claimed that any Such waiver was ever contemplated by the parties.
SAHE-ADMffiALTY PRAOTI()E-PREMATURE FILING OF
When such promissory note Is not delivered in pursuance of the a.greement, the filing of a .libel before the fulfillment of the contract on libelant's part (which, however, Is fully performed soon after) does not constitute Cause for dismIssing such libel, but, undCl' admiralty practice, affects the question of costs only.
In Admiralty. Libel by Robert McNeil and others against the steam tug Pioneer for the contract price of a boiler and tiues furnished to her. Decree for libelants. Alexander & Ash, for libelants. R. B. Seymour, for claimants. GREEN, District Judge. The libel in this case was filed to enforce the payment of a claim against the steam tug Pioneer, consisting practically of two iteIns; the first being the contract price agreed upon by the claimant.s, or those who represent them, for a boiler to be built and properly set in the Pioneer by the libelants, amounting to $1,250; and the other being the price of a new and extra set of flues, which, while not included in the original contrac,t for the boiler, seem to have for the proper repair of the Pioneer, and to have been been l'1cceptedas such by the claimants, and which amounts to $74.93. The .claimants resist ithe enforcement of this lien, although they do not dis-