THE JOHN AND WINTHROP, 182 F. 380

MORROW, Circuit Judge (after stating the facts as above). This is an action by libelants and interveners for damages for breach of contract for good treatment. There is an implied obligation on the part of the master of a vessel that he will protect the seaman against ill usage and provide for him good treatment; but there are also reciprocal duties on the part of the seaman. He assumes the obligation to obey all lawful commands of the master and not to violate the discipline and economy of the ship. Curtis, Rights and Duties of Merchant Seamen, pp. 27, 33; Limeland v. Stephens, 3 Espinasse, 268. In Robertson v.

Baldwin, 165 U. S. 275, 282, 17 Sup. Ct. 326, 329 (41 L. Ed. 715), the Supreme Court said: “From the earliest historical period the contract of the sailor has been treated as an exceptional one, and involving, to a certain extent, the surrender of his personal liberty during the life of the contract.

Indeed, the business of navigation could scarcely be carried on without some guaranty, beyond' tbe ordinary civil remedies' upon contract, that tile sailor will not desert the ship at a critical moment, or leave her at some place where seamen are impossible to be obtained — as Molloy forcibly expresses it, ‘to rot in her neglected brine.' Such desertion might involve a long delay of the vessel while the master is seeking another erew, an abandonment of the voyage, and, in some cases, the safety of the ship itself.

Hence the laws of nearly all maritime nations have made.provision for securing personal attendance of the crew on board, and for their criminal punishment for desertion, or absence without leave during the life of the shipping articles.” The contract in this case expressly provided that the libelants and interveners would “do their duty and obey the lawful commands of the officers on board said vessel or boats thereunto belonging as become good and faithful seamen or mariners while cruising for whales and at all places where said vessel shall put in or anchor during said voyage.” The libelants and interveners quit work on July 28th, and, notwithstanding they were .directed by the master to return to their work and do their duty, they disobeyed the master’s order and refused to work; and this they continued to do for seven days.

The master’s orders to return to work were lawful commands, and under the law as well as the terms of their contract they were bound to obey them. Their complaint that they were denied shore liberty and money did not justify them in disobeying the master’s command. They were not entitled of right to either.

They had agreed in their contract “not to neglect or refuse doing their duty by day or night,” and that they would “not go out of said vessel * * * or be on shore under any pretense- whatever until the voyage be ended and the vessel discharged of her loading without leave first obtained of the captain or commanding officer on board.” The master had, as a matter of favor, agreed to give them shore,liberty, and had given each a small sum of-money; but it was on the express condition that the entire watch should return at the end of the leave, a perfectly reasonable condition under the circumstances.

When five members of the starboard watch failed to return at the expiration of their leave on July 28th, the shore liberty of the crew was at an end. They did not then continue to do their duty aboard the vessel until the return of the missing members of the crew should restore affairs to a normal condition, when further shore liberty might reasonably have been expected; but they all immediately quit work, and, although directed by the master to return to their work, they disobeyed his commands.

For three days, July 29th, 30th, and 31st, the master submitted to this continued disobedience without subjecting the offenders to any punishment whatever. It was not until August 1st, and then under the direction of the consular agent, that the offenders were placed in irons, but not until-each member of the crew had been asked to return to his duty. For-the next two days the crew was in irons; but on, each day either the master or mate asked them to return to their duty. . . On Sunday, August 2d, the consular agent boarded the vessel and asked the men to return to work; but they continued their disobedience.

Finally the-men not only ■ continued their disobedience, but threatened the master. in abusive language not necessary to repeat. Then, on August' 3d, after consultation 'with his ofñcé'rs, the ihaster placed the offenders on small chains stretched in between-decks. They were not triced up, and the handcuffs were not fastened to the chain. The men could move from right to left or left to right from two to four feet, and could rest their hands on the chain or raise them above it.

Section 4596 of the Revised Statutes, as amended by Act Dec. 21, 1898, c. 28, § 19, 30 Stat. 755, 760 (U. S. Comp. St. 1901, p. 3113), provides as follows: “Whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offenses he shall be punishable as follows: ************** “Fourth.

For willful disobedience to any lawful command at sea, by being, at the option of the master, placed in irons until such disobedience shall cease, and upon arrival in port, if of the United States, by forfeiture from his wages of not more than four days’ pay,, or upon arrival in a foreign port by forfeiture from his wages of not more than four days’ pay, or, at the discretion of the court, by imprisonment for not more than one month. “Fifth.

For continued willful disobedience to lawful command or continued willful neglect of duty at sea by being, at the option of the master, placed in irons, on bread and water, with full rations every fifth day, until such disobedience shall cease, and upon arrival in port, if of the United States, by forfeiture, for every twenty-four hours’ continuance of such disobedience or neglect, of either a sum of not more than twelve days’ pay or sufficient to defray any expenses which have been properly incurred in hiring a substitute, or upon arrival in a foreign port, in addition to the above penalty, by imprisonment for not more than three months, at the discretion of the court.” There can be no question but that for their disobedience and continued disobedience the master was authorized to place the men in irons and on bread and water.

Was he authorized to place them on the chains in the manner described? The only actual punishment in being placed on the chains appears to have been the restraint imposed upon them in not being permitted to wander around the ship, destroy its discipline, and make trouble for others. The placing of an offender in irons necessarily involves some kind of restraint.

If it is a single individual to be punished, he may be placed in a room by himself; but where there are many offenders, as in this case, and where there is no room where they can be placed, the chain appears to have been the only alternative, and as it was stretched was no more of a punishment than had they been placed in a room.

Some complaint is made that the handcuffs made some of the men’s hands sore and that the water splashed out of the water cask near where they slept on the deck; but this does not appear to have been any part of the intended punishment, or of its necessary consequences, nor do they appear to have made any complaint at the time about the handcuffs or water. Had these matters been called to the attention of the officers, they would probably have remedied this feature of the punishment. This part of the punishment, if it can be so characterized, was, therefore, self-inflicted.

Furthermore, they were told that when they were ready to return to duty the handcuffs would be remoyed and they would, of course, be relieved from the chain. It is an ancient and well-established rule that the plaintiff is not legally damaged by consequences which, if acting as prudent men ordinarily do, be could have avoided. ~ As stated by Sedgwick on Damages, §'202': ' . / “Sucia consequences can hardly be-the direct or natural consequence of the defendant’s wrong, since it is at the plaintiff’s option to suffer them:” The author adds: “They';are really excluded from the recovery as remote.

In this view the doctrine would rest on the intervention of the plaintiff’s will as an independent cause.” . • The. appellees contend that on this appeal, the several causes of action stated in the libel .and .interventions must be heard de novo, the amount of the awards increased,-and the decree otherwise affirmed. The action was a joinder of several separate and distinct causes of action brought by several' distinct parties.

Upon these causes of action the court below awarded the libelants Olsén and Wilkins $50 each; but the appeal from the decree with respect to these two separate and distinct causes of action has been waived by the appellants, and we think the correctness of the decree with respect to those two causes of action is not before the court for review.

Upon the causes of action stated in the libel wherein libelants claim damages for breach of contract of good treatment prior to August 3, 1908, no finding was' made with respect to such causes of action and ño decree entered by the court upon such causes of action; and as no appeal has been prosecuted from the decree by the libelants with respect to such causes- of action, it is contended by the appellants that the decree with respect thereto is not before the court.

The appeal in this case is with respect to so much of the decree as awards judgments in favor-of the libelants and interveners on the causes of action charging breach of contracts on and after August 3, 1908, and it comes to this court with the proofs relating to such causes of action; that is to say, the appellant has complied with the general rule in admiralty requiring it to bring up “all the testimony and other proofs adduced in the cause” with respect to such causes of action.

The record does not purport to contain the proofs relating to the causes of action charging breaches of contract prior to August 3, 1908. Appellant’s notice of appeal is as follows: “Please take n'otice that the claimants in the above-entitled cause hereby appeal from the final decree made and entered herein on the 24th day of May, 1909, to the United States Circuit Court of Appeals for the Ninth Circuit. “Claimants desire to review only the following questions involved in the cause, to wit: “First.

The right of the libelants Olsen and Wilkins to recover damages for being placed in irons, and imprisoned on said vessel while she was in the harbor of Hakodate, Japan. “Second.

The right of any of the libelants to recover damages for being, on or about August 3, 1909, when the John and Winthrop was at sea, placed in irons and confined in the main hold or between-decks' of said vessel.”' . . ■ Subsequently appellants filed and served on the appellees a further notice as to the record on appeal as follows: “Appellants hereby waive the review of the question designated as ‘First’ in their notice of appeal, dated July 14, 1909, to' wit, the right of libelants Olsen ánd Wilkins to recover damages, and intend to review only question ‘Second’ In said notice of appeal referred to, to wit, the right of any of the libelants to recover damages for being, on or about August 3, 1908, when the John and Winthrop was at sea, placed in irons and confined in the main hold or between-decks of said vessel. “Accordingly appellants waive review of questions 1, 2, and 3, contained in the assignments of errors filed herein, and desire to assign as errors on their appeal, and rely only upon, errors numbered 4 to 13, inclusively, in said assignment of errors. “For the consideration of the errors stated, appellants think the following parts of the record, and no other parts thereof, necessary, and appellants therefore request that only the following parts of the record be printed, and that all other parts thereof be omitted from the apostles.” The record appears to have been prepared in accordance with this notice.

Had the appellees desired the review of the decree with respect to the causes of action alleging breach of contracts prior to August 3, 1908, they should have prosecuted an appeal from'the decree upon that ground, and’under the rule they would have been required to bring up all the testimony and other proofs adduced in the cause relating to such causes of action. In the absence of such a record we cannot review the decree with respect to the causes of action charging breach of contracts prior to August 3, 1908. The case comes under the rule declared in Oliver v. Alexander, 6 Pet. 143, 8 L.

Ed. 349, where the Supreme Court said: “The whole proceeding,' therefore, from the beginning to the end of the suit, though it assumes the form of a joint suit, is, in reality, a mere joinder of distinct causes of action, by distinct parties, growing out of the same contract. * * * The claim of each seaman is distinct and several; and the decree upon each claim is, in like manner, distinct and several. One seaman cannot appeal from the decree made in regard to the claim of another; for he has no interest in it, and cannot be aggrieved by it.

The controversy, so far as he is concerned, is confined solely to his own claim; and the matter of dispute between him and the owners or other respondents is the sum or value of his own claim, without any reference to the claims of others.” In The Columbia, 73 Fed. 226, 233, 19 C. C.

A. 436, 445, this court applied this rule in a proceeding for the limitation of liability of an owner of a vessel under this statute with this remark: “The proceedings here in question are quite analogous to joint suits for seamen’s wages and to the practice in cases of salvage.” The rule referred to in the case of The San Rafael, 141 Fed. 270, 72 C. C. A. 388, “that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court,” is therefore not applicable to this case.

The decree of the District Court is reversed, with instructions to dismiss the causes of action in the libel for breach of contracts of good' treatment on and after August 3, 1908.