FILED BRIEF OF APPELLEE. United States Circuit Court of Appeals FOR THE NINTH CIRCUIT. Hugh Montgomery, IN THE F B28193I PAUL P.

Transcription

1 IN THE United States Circuit Court of Appeals FOR THE NINTH CIRCUIT No Bernakd Meyee, vs. Appellant, Dollar Steamship Line^ a corporation, Appellee. BRIEF OF APPELLEE ON APPEAL FROM A PINAL DECREE OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION. HON. JEREIVnAH NETERER, Judge FILED PAUL P. F B28193I O'BRIENp CLERK Hugh Montgomery, E. C. Kester, John Ambler, Proctors for Appellee. DOLLAR S!^ A"^Sili^^ LiMhS I-, M 311 CALIFORNIA ST. D.

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3 Index of Cases Page The Osceola, 189 U. S Pacific Steamship Co. vs. Peterson, 278 U. S Reed vs. Canfield, Fed. Cases Callon vs. Williams, Fed. Cases

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5 IN THE United States Circuit Court of Appeals FOR THE NINTH CIRCUIT No Berxard Meyer, vs. Apijellant, Dollar Steamship Lixe, a corporation, A2)pellee. BRIEF OF APPELLEE ON APPEAL FROM A FINAL DECREE OP THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION. HON. JERElVnAH NETERER, Judge This appeal involves onlv one principal question. The Appellant was a sailor on board the S. S. ''PRESIDENT CLEVELAND." He is suing the ship for wages on a voyage from San Francisco to States. Manila, P. L, and return to the United On the first leg of the voyage, before reaching Honolulu, the sailor was injured as a result of a voluntary scuffle. There is no evidence or suggestion that this scuffle was sponsored or approved by the ship or its officers.

6 : : There is no evidence that the ship or its officers had knowledge of the existence of the scuffle. He was taken to the hospital in Honolulu and received all necessary maintenance and cure, (See stipulation of facts, Appellant's Brief, pages 3 and 4.) The trial court held that the sailor in question was not entitled to his wages for the entire voyage. The court also held that the wages for the period of time during which the sailor was in the hospital should be deducted from the number of days of the voyage, leaving a total of eighteen days' wages to the sailor. The Appellant contends that he was entitled to wages for the entire voyage. The Appellee contends that the Appellant is entitled to wages for the period of time that he was able to work on the voyage, and having been disabled by his own voluntary act he is not entitled to the period of time lost by virtue of his own voluntary act. The right of a seaman to recover wages rests entirely upon his contract of employment and the general maritime law. This rule has been announced by the Supreme Court of the United States ''Upon a full review, however, of English and American authorities upon these questions, w^e think the law may be considered as settled upon the following propositions 1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance

7 ' and cure, and to his wages, at least so long as the voyage is continued." The Osceola, 189 U. S This principle was again announced by the same court in the case of Pacific Steamship Co. vs. Peterson, where the court said: is "By the general maritime law of the United States prior to the Merchant Marine Act, a vessel and her owner were liable, in case a seaman fell sick, or was wounded in the service of the ship, to the extent of his maintenance and cure, whether the injuries were received by negligence or accident, and to his wages at least so long as the voyage was continued. ' Pacific Steamship Co. vs. Peterson, 21S U. S Each of the above cases holds that an injured sailor entitled to wages for the entire voyage; but each of the cases also holds that the right of an injured seaman to recover wages for the entire voyage is premised upon the necessary fact that he was injured in the service of the ship. So far as we have been able to ascertain there exists no judicial definition of the expression "in the service of the ship" except the decision of the trial court in this case. The trial court construed the expression "in the service of the ship" to mean some act performed by the sailor for the benefit of the ship, or his own benefit, in the course of his employment. This construction estops an injured sailor from recovering his wages for the entire voyage if he volun-

8 ' tarily caused the injury while engaged in a purely private concern of his own. This construction is in accord with the general concept of maritime law. The rule is well expressed in a quotation from Tenterden on Shipping, quoted with approval in case of Reed vs. Canfield. the " * * * that by the ancient maritime ordinances if a mariner falls sick during the voyage or is hurt in the performance of his duty he is to be cured at the expense of the ship, but not if he received the injury in the pursuit of his own private concern. ' Reed vs. Canfield, Fed. Cases The admitted facts in this case show that the sailor was voluntarily engaged in a personal pastime on the occasion when he was injured, and was at that time doing no act which in any way contributed to the purpose of the vo3'age. His act was the direct jdroximate cause of the accident and his emx^loyment in the ship's business in no way contributed to the accident. On arrival in Honolulu the Captain took proper steps to have the man placed in a hospital and cared for. In fact the stipulation of facts pages 3 and 4 of Appellant's brief) (which appears on states that the removal to the hospital was necessitated by the injury which had been received in the course of a scuffle. In other words, the Appellant in this case admits that it became necessary to have him taken from the ship in Honolulu and placed in the hospital.

9 He admits, in other words, that he was the person who voluntarily made it impossible for him to complete the voyage. If he himself voluntarily performed an act which necessitated his removal from the ship to the hospital and thereby prevented him from completing his voyage, how can he properly now assert that he performed the terms of his contract of employment so as to entitle him to his wages for the remainder of the voyage? Not only did he not perform his contract of employment as a sailor, but by his own voluntary act he made it impossible for himself to perform his contract of employment. Under these circumstances we respectfully urge that the trial court was correct in refusing to enter a decree giving to the Appellant his wages for the entire voyage. The Appellant also contends that he is entitled to a penalty of double pay as provided by U. S. Code Annotated, Title 46, Section 596, because his wages have been withheld. The stipulation of facts shows that the Appellee tendered to this sailor on November 28, 1929, the sum of $19.33, which is the admitted amount of his wages up to the time he entered the hospital, and such an amount was refused by the sailor. As already pointed out, the sailor himself admits in the stipulation of facts that the result of his own voluntary act required that he be taken to the hospital at Honolulu.

10 : 6 The ship felt that under such circumstances lie was not entitled to his wages beyond the port of Honolulu. The trial court found that the ship acted in good faith and that there existed reasonable cause for the refusal to pay the claimed amount. We feel that there is no question that reasonable cause did exist, and under such circumstances the penalty of double pay cannot be imposed. We respectfully urge that the trial court was likewise correct in this particular and that its decision should be affirmed. The brief of the Appellant devotes considerable attention to the fact that the sailor, in this case, was not discharged at Honolulu in the manner required by law. As we have already pointed out, the sailor himself admits in his stipulation of facts that he engaged voluntarily in a scuffle which caused an injury that necessitated his removal to the hospital in Honolulu. The statutes authorizing the discharge of seamen do not apply where the seaman is confined to his bed on shore, but only to a severe injury or illness which actually occurred in the service of the ship. This rule is marked down in the following case *'The statutes authorizing the discharge of seamen with their consent, were not intended to apply to a case in which the seaman is confined to his bed on shore at the time the vessel is to sail, by a severe injury or illness incurred in the service of the ship. Such a discharge is nothing more than a recognition of the fact that he cannot go to sea.

11 The statute was intended for a case in which there is some choice exercised to go or stay." Gallon vs. WilUams, Fed. Cases 2,324. The rule above cited applies even more forcibly to a situation such as that which exists in the case at bar, because the admitted facts of this case show that the sailor did an act w^hich neccvssitated his removal to a hospital in Honolulu. We therefore respectfully urge that the Appellant's arguments concerning the subject of his discharge are not applicable to the facts of this case. Under the admitted facts as established by the record it follows that the decision of the trial court is correct and should be affirmed. Respectfully submitted, Hugh Montgomery, E. C. Kester, John Ambler, Proctors for Appellee.

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