O'HARA et al. v. LUCKENBACH S. S. CO., 1 F.2d 923

MORROW, Circuit Judge. Appellants (libelants below) were qnartevmi-i tera employed on September 30,1922, on the steamship Lewis Luekenbaeh for a voyage from New York to the Pacific Coast ports and return to the Atlantic Coast at a wage of $45 a month. Appellee (respondent below) in a corporation organized under the laws of Delaware, and is the owner of the steamship Lewis Luekenbaeh. The libelants, in their amended libel, seek to recover of the respondent certain, sums for seamen’s wages — William O’Hara, the sum of $27.50; and Sven Tjersland, the sum of $28.50. The defense is desertion.

The libelants shipped as seamen on the steamship Lewis Luekenbaeh for a voyage from the port of New York to Pacific pores of the United States and return to some port north of Cape Hatteras on the Atlantic Coast at the wages of $45 a month. Upon the arrival of the vessel in San Francisco on November 15, 1922, libelants asked for a discharge without assigning any reason. The master refused to discharge them, because they had signed articles for the return voyage.

They then demanded a certificate to the United States Marine Hospital, which was given them, but they were unable to secure discharge on account of disability. Libelants then claimed discharge on the ground that the ship was violating the law in not dividing its crew into watches, and demanded payment of their wages. The discharge was again refused. They left the service of the vessel and brought action to recover wages earned and double pay for each day having elapsed since November 15, 1922, when the wages were demanded.

Section 2 of the Act of March 4, 1915 (38 Stat. 1164 [Comp.

St. § 8363b]), provides as follows: “That in all merchant vessels of the United States of more than one hundred tons gross, excepting those navigating rivers, harbors, bays, or sounds exclusively, the sailors shall, while at sea, be divided into at least two, and the firemen, oilers, and waiertenders into at least three watches, which shall be kept on duty successively for ihe performance of ordinary work incident to the sailing and management of the vessel. * ,* * “Whenever the master of any vessel shall fail to comply with this section, the seamen shall be entitled to discharge from such vessel and to receive the wages earned.

But this

section shall not apply to fishing or whaling vessels, or yachts.” There wore thirteen sailors on board the vessel, three of whom were assigned to duty as quartermasters and were divided into three watches. Three were assigned to the lookout in the nighttime, and were also divided into three watches. The other seven did ordinary shipwork for eight hours during the day, and wore oif duty during the night. Libelants, who were quartermasters, do rnot claim that they were on duty more than one watch out of every three, or that they were required to work more than 8 hours out of every 24.

The complaint of those two quartermasters, the libelants herein, is not that they have suffered any unequal treatment in the labor required of them, or that they were not on duty successively, but that other members of the crew did not stand the regular wheel or lookout watch; that they were on duty only 8 hours during the daytime and off during the night. No complaint is made of unequal treatment by the other men, who were not engaged in the actual sailing' or management of the vessel, but were employed in painting and other ordinary shipwork during the day and were allowed off duty during the night.

The complaint is that, because these other men engaged in ordinary service were not divided into equal watches and required to do duty in watches at night, the two quartermasters claim they had the right to be discharged. The court below held that the primary object of the statute was to fix the hours of service and to prevent overwork, not to prescribe the number of seamen on each watch, and that the libelants were therefore not entitled to their discharge. The duty of the quartermaster is to steer the ship, and obviously only one man at a time can be engaged in that duty.

The addition of more men to a night watch would not relieve the quartermasters of their duties. They are selected for their qualification to steer the ship, and the safety of the ship often depends upon their qualification to perform that duty. The purpose of Congress was obviously to provide for the safety of the ship in the selection of qualified quartermasters and men for the lookout, and also to prevent overwork. The division of the men into watches, as disclosed by the evidence in this case, was not contrary to the statute. The decree of the District Court is affirmed.