Petition — Ramsey v. The Modoc

Bepreme Cour, J. §,

Rae

f

MAY 1 1977

MICHAEL RODAK, JR., CLERK

Me. ces es

26-1639

In the

Supreme Court of the United States

HARRY J. RAMSEY,

Petitioner,

VERSUS

M/V MODOC and THE RIVER LINES, INC.,

Respondents,

CHARLES J. PISANO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

Harry J. Ramsey

Appearing Pro Se

2201 Magazine Street

New Orleans, LA 70130

INDEX

Reports of the Opinions

of the Courts Beo "

Grounds On Which Juris-

diction Is Invoked........ 900000

Questions Presented 900

Statute

Involved.....cseeeees 900000

Statement of the case

Reasons for Granting the

Writ.

10

ii

Page

Appendix "A"-1977 Summary

Affirmance of

the Court of

Tppeals For

the Fifth Circuit. A-l

Appendix "B"-1974 Memorandum

Opinion and Order

of the United

States District

Court For the

Northern District

of Texas, Dallas

Division An2

iii

TABLE OF AUTHORITIES

I.

CASES

Kennerson v. Jane R., Inc.

* upp. — * x.

1967)

Ladzinski v. Sperl Steam- 22, 29,

PE 47 4 on 41

upp ’

(S.D.N.Y¥., 1969)

26

Mavramatis v. United States 35

Greek Shi r's Corporation

. st r.

McCrea v. United States 33-35

294 U.S. 23, 55 F. Gt. 291,

. *

79 La. Ed. 735

S4 81 S. S. Company x. 35

20 F. 2d 342 (4th Cir. 1927)

Nessen Transportation 15

1. App.

1937)

Patterson v. S.S. WAHCONDAH 13

* upp. * * *

1964)

iv

Pa v. SS Tropic Breeze

125 7. 2d 236 K Cir. 19570)

Petition of Den Norske

r n

upp. (N.D. Ohio,

1967)

United States

>. ete

Petterson v.

1921)

Prindes v. The S.S. African

Pilgrim

266 F. 24 125 (4th Cir. 1959)

Samad. v. The Etivebank

1 . Supp. 530 (E.D. 2a

Southern Cross Steamshi

Conpeny Vv. Ar

Cir. 1960)

este v. The Araadon

„ Supp. D. 2a 1957)

Warner v. Goltra

* - 155, 35 8. Ct. 46

(1934)

35,

26

19

29

36

36

34

36

23

11.

STATUTES

28 U.S.C., Section 1254

28 U.S.C., Section 1331

28 U. 8. c.. U.S. Sup. ct.

Rule 19(b)

46 U.S.C., Section 541

46 U.S.C., Section 596

46 U.S.C., Section 688

46 U.S.C., Section 713

Acts July 20, 1790, c. 29,

Sections 1, 6, 8, and 9

Acts July 20, 1790, c. 29,

Section 6, 1 Stat. 133

Acts June 7, 1872, . 322

2

6, 7

2

40

„ 6, 7,

ll, 20,

25, 26,

29, 31,

35, 38

23

22, 23

17

16

18

vi

111.

OTHER AUTHORITIES

The Law of Seamen 12, 16

U.S.C. 596 (3rd Ed. 1970),

p. 639

U.S.C. 536 (3rd Ed. 1970),

p. 639

Merchant Vessels of the 39

ates

United States Government

Printing Office, 1975

Senate Report No. 1079 24

Dated Apr " „ on

P.L. 90-293

Petitioner, Harry J. Ramsey,

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Fifth Circuit,

No. 74-4197, entered in the above entit-

led case on January 31, 1977.

REPORTS OF THE OPINIONS OF THE COURTS

BELOW

The opinion of the United

States Court of Appeals, printed in

Appendix A, infra, page A-l, has not

been published officially, being a per

curiam affirmation of the memorandum

opinion of Honorable Alvin B. Rubin,

Judge, United States District Court for

the Eastern District of Louisiana, Civil

Action No. 71-1910, printed in Appendix

„8,“ infra, page A-2, and reported offic-

ially at 372 F. 2d 1131 (E.D. La. 1974).

11. 111.

GROUNDS ON WHICH JURISDICTION IS QUESTIONS PRESENTED

INVOKED A. Whether a master of a

The judgment of the United vessel making foreign vogages or voyages

States Court of Appeals for the Fifth from a port on the Atlantic to a port on

Circuit was rendered and entered on the Pacific enjoys the status of "seaman"

January 31, 1977. The jurisdiction of as comtemplated by 46 U.S.C., Section 596,

this Court is invoked under 28 U.S.C., and is therefore entitled to recover from

Section 1254, and U.S. Sup. Ct. Rule

19(b), 28 U.S.C., providing that this

Court may review the decision of a

United States Court of Appeals where the

decision involves an important question

of federal law which has not been, but

should be, settled by this Court, or

where the decision of a federal question

in some way conflicts with applicable

decisions of this Court.

the vessel's owner penalty wages, as

therein provided, where the owner fails

to pay to the master his wages within

four days of the master's discharge from

the vessel?

B. Whether the penalty wages

referred to in 46 U.S.C., Section 596,

can be assessed against the owner of the

vessel where during the four day period

immediately following the master's dis-

charge the owner had sufficient cause to

withhold the master's wages, but where

the owner did not have sufficient cause master or owner who refuses or

neglects to make payment in the

inued ithhold manner hereinbefore mentioned

—— Oe eee 3 without sufficient cause shall

such wages? pay to the seaman a sum equal

to two days pay for each and

every day during which payment

is delayed beyond the respec-

Iv. tive periods, which sum shall

be recoverable as wages in any

| claim made before the court;

but this section shall not

STATUTE INVOLVED apply to masters or owners of

any vessel the seamen of which

The statute involved in this are entitled to share in the

profits of the cruise or voyage.

tition is 46 U.S.C., Section 596 This section shall not apply

” wa * to fishing or whaling vessels

which reads as follows: or yachts."

"The master or owner of any

vessel making coasting voyages

shall to every seaman his wages V.

within two days after the ter-

mination of the agreement under

which he was shipped, or at the

time such seaman is discharged, STATEMENT OF THE CASE

whichever first happens; and in

case of vessels making foreign A. The Nature of the Proceed-

voyages, or from a port on the ings.

Atlantic to a port on the Pacif-

ic, or vice versa, within twenty Petitioner brought suit in the

four hours aft the cargo has

— ä— ening or 45 * four United States bistrict court for the

days after the seaman has been g

discharged, whichever first | Eastern District of Louisiana against

happens; and i 11 ses the

—— Nr. — — — to be M/V Modoc and the River Lines, Inc, the

paid at the time of his dis- i 5

charge on account of wages a vessel's owner, seeking wages, damages

sum equal to one-third part of

the — due him. — for personal injuries suffered due to the

unseaworthiness of the vessel and the

negligence of the owner, and praying

that he be awarded penalty wages as

described in 46 U.S.C., Section 596, for

the owner's unjustified failure and

refusal to pay his wages. The juris-

diction of the District Court was invoked

under 28 U.S.C., Section 1331.

After three and one-half days

of trial, the jury returned a verdict

awarding to petitioner back wages and

damages for personal injuries suffered

due to the unseaworthiness of M/V Modoc

and the negligence of the River Lines,

Inc. The District Court granted the

River Lines, Inc.'s motion for a new

trial, and denied petitioner's request

that judgment for penalty wages be

entered under 46 U.S.C., Section 596, in

accordance with the jury's finding by

special interrogatories that the River

Lines, Ing., had withheld petitioner's

wages without sufficient cause.

At the new trial, the jury

failed to find that the vessel had been

unseaworthy or that the owner had been

negligent; and the Court directed verdict

against petitioner on the penalty wage

issue, stating in its opinion, at 1133,

that lulnder the penalty wage statute,

46 U.S.C. §596, only seamen can claim

the penalty; [petitioner] was hired as a

master, and he remained a master so long

as he was performing services for the

vessel."

In dicta, the Court added that

even were petitioner a seaman in the

context of 46 U.S.C., Section 596, he

could not recover penalty wages without

showing that the River Lines, Inc.'s

arbitrary and unreasonable failure to pay

occurred within the applicable statutory

period. At 1134, the Court wrote:

"To support any recovery, the

jury needed to decide as a pre-

liminary matter whether peti-

tioner's discharge of the

ship's discharge of cargo

occurred first, in order to

determine whether the twenty-

four hour or the four day period

should apply. Then the jury

had to determine that River

Lines failure to pay wages with-

in the applicable period was

without sufficient cause during

that same period; [ McCrea v.

United States, 294 U.S. 23

s that an owner's

behavior, even it later became

arbitrary or unreasonable, does

not make him liable for a

penalty if sufficient cause to

withhold wages was present

during the statutory period."

Petitioner appealed to the

United States Court of Appeals for the

Fifth Circuit, where the District Court's

judgment was affirmed (Appendix A,

page A-2).

B. The Relevant Facts.

In June, 1970, the River Lines,

Inc., hired petitioner to serve as master

upon M/V Modoc, its new vessel, on its

maiden voyage from the Mississippi

River, through the Panama Canal, to San

Francisco Bay. Aboard was a crew of

seven river and harbor seamen, five of

whom had previously been employees of

the River Lines, Inc. Articles were

signed in New Orleans on June 28, 1970.

When the vessel reached the

Canal Zone, a member or members of the

crew contacted by telephone the presi-

dent of the River Lines, Inc., and

objected to the course which petitioner

set. The president urged the crew to

continue.

On July 13, 1970, when the

vessel was off the Pacific Coast near

the Mexican Bay of Tehuantepec, the

chief mate refused to obey petitioner's

orders, causing petitioner to place the

chief mate under arrest. Shortly there-

after, members of the crew overpowered

and deposed petitioner and handcuffed him

to a fixture in the master's quarters.

When the vessel put in to Acapulco, peti-

tioner was discharged from the vessel.

As petitioner was penniless and injured,

he then attempted to contact by telephone

the presdent of the River Lines, Inc.;

the presidert refused to accept the call

and otherwise willfully failed to provide

petitioner with transportation to the

United States, wages, or maintenance and

cure.

VI.

REASONS FOR GRANTING THE WRIT

A. In affirming the decision

of the District Court, the Court of

Appeals has misconstrued 46 U.S.C.,

Section 596.

B. The issues here presented

have great importance and far-reaching

-10-

effect.

In its construction of 46

U.S.C., Section 596, the Court of

Appeals held that the master of a vessel

is not a seaman within the purview of

the penalty provisions set forth therein,

and that the penalty provisions will

only be triggered if the allegedly

arbitrary and unreasonable failure to

pay wages arose within four days of

petitioner's discharge from the vessel.

This construction is in dramatic conflict

with congressional will and an earlier

decision of the United States Court of

Ay. 21s for the Fourth Circuit.

Petitioner would first address

himself to the issue of the master's

status in the context of the Penalty

Wage Statute. The statute in question,

46 U.S.C. 4 596, states that “The master

-ll-

or owner .. . shall pay to every

seaman . . his wages timely, failing

which penalty wages became due. Use of

the disjuctive or“ implies that either

one can be held responsible for such

payment, not both. Logic dictates that

whichever one is able to pay should be

the one obligated to pay the wages, and

penalty wages when due.

The maritime law recognized

that “ability to pay” as the prime factor

in deciding seaman wage claims. For

example, in days of old the master had

the obligation to pay in ports away from

home because he controlled the freight

receipts collected and thereby had the

ability to pay the wages. See Norris,

The Law of Seamen, §596 at p. 639 (3rd

Ed. 1970). In modern days, the owner or

its agent pays the wages when the crew

signs off articles in the presence of a

U.S. Shipping Commissioner. In such

cases the owner has the ability to pay.

On the other hand, if the owner is bank-

rupt there is no “ability to pay” and

the owner is not liable for penalty

wages, the crew having only a lien

against the vessel for payment of their

earned wages. See Patterson v. S. S.

WAHCONDAH, 235 F. Supp. 698 (E.D. La.

1964).

Here there is not doubt but

that at the time the wages became due,

petitioner did not have the ability to

pay himself his own wages, much less pay

the crew their wages. The owner, however,

did have the ability to pay all of these

wages, and in fact paid everyone except

petitioner, who with or without a command

was still a “seaman” as defined by

Congress:

»In the construction of title

53 of the Revised Statutes,

every person having the

command of any vessel belonging

to any citizen of the United

States shall be deemed to be

the ‘master’ thereof; and

eve son (apprentices

ex 84) who ETI Be

or

shell be deemed and taken to be

a ‘seaman’; and the term

"vessel" shall be understood

to comprehend every descrip-

tion of vessel navigating on

any sea or channel, lake or

river, to which the provisions

of such title may be applica-

ble, and the term ‘owner’ shall

be taken and understood to

comprehend all the several

persons, if more than one, to

whom the vessel shall belong.”

(Emphasis added)

46 U.S.C. § 713.

It should be noted that only

apprentices and not masters were

excluded in the definition of “seamen.”

The “master” is defined therein as the

person having “command” of the vessel,

which is de facto one of the “capacities”

aboard the vessel. Hence, a master is a

seaman having command, and an owner

having an ability to pay but refusing

-14-

to do so would be refusing to pay a

seaman his wages, especially since that

"seaman-then-out-of-command"” had no

ability to pay himself the wages.

Moreover, the legislative

purpose supporting the penalty wage

provision, discussed further later herein,

is to prevent exactly what happened here:

The still delayed payment of earned wages,

the impecuniousness of petitioner, and

the possibly implied coersion or pressure

to release his claim for damages. The

master of a vessel is still a seaman

within the meaning of the seaman wage

statutes. See Nessen Transportation Co.

v. Larsen, 7 N. E. 2d 765 (Ill. App.

1937). The fact that a seaman has

command of the vessel doesn't make him

not a seaman - it makes him more a seaman,

just as the Chief Justice is still a

judge.

the owner at distant ports were practic-

The question of seaman's

ally non-existant, if not impossible.

wages is steeped in Maritime Tradition.

Therefore, someone had to be given

Originally, the seaman was to look to

authority to act in place of the owner

his “master or commander” for the pay-

| and pay the members of the crew.

ment of his wages, Acts July 20, 1790,

Furthermore, owners did not always have

c. 29, 86, 1 Stat. 133. The historical

agents at every port where their ships

basis of placing the responsibility on

were going to call, and communications

the “master or owner" was the result

between owner and agent were not as

of many factors.

sophisticated or instantaneous as they

One factor is discussed in

are today.

Norris, The Law of Seamen, $536 at

Traditionally, the master

p. 639 (3rd Ed. 1970):

had acted as the agent and representative

"In maritime law the master

is personally liable for the of the owner in matters concerning the

wages of seaman under his

command. The right is pre- vessel. He was to sign the members of

dicated not only on the basis

of an express contract, but the crew to articles, stand in place of

because in the early days the

master had control of the the owners before the courts in seamen's

ship's earnings through his

collection of freight monies." wage disputes, and ensure that proper

Another factor for the ancient provisions were carried aboard the

|

lodging of the master's responsibility | vessel. Acts July 20, 1790, c. 29, 881,

to pay seamen their wages was that 6, 8, and 9. In effect, the master of

communications between the master and

** 17 —

the vessel acted as the alter ego of the

owner because of the distance between

owner and vessel and the lack of modern,

instantaneous communications to maintain

the day to day operation of the vessel.

Congress has from time to time

recognized the realities of shipping and

provided for various measures so as to

accomodate the changing circumstances.

A review of various amendments to the

"Seamen's Acts" discloses Congress

manifestations of change. In Acts June 7,

1872, c. 322, the master was still

accountable as an agent of the owner to

ensure that the operation of the vessel

was done properly, and if not, a fine

was imposed on him. However, it should

be noted that during the interim between

1790 and 1872, communication had greatly

improved (telegraph, for example), and

Congress saw fit to change “master or

-18-

commander" to “master or owner."

The courts have recognized the

impact of communications on Maritime

Law, as is shown in Petition of Den

Norske Amerikalinje A/S, 276 F. Supp.

163 (N.D. Ohio, 1967) at p. 181:

“Many Maritime laws were

built on the theory that, in

time of danger, contact between

sea and shore was physically

not possible . The captain

of a sailing vessel in the

South Pacific couldn't

telephone his Owner's Office

in London, or his fleet

commander in Oslo. But now

communication is faster from

ship to shore than an ordinary

long-distance call."

Times have changed since 1790, and

Congress and the Courts have adapted to

those changes. As Congress noted in

1968 with regards to seaman wages, the

master of a vessel is no better off than

the other men working aboard the vessel,

and should be statutorily treated the

same, especially when the owner can make

-19-

all the decisions and arrangements

in practically an instant by radio,

cable or telephone.

Thus, a realistic interpre-

tation of §596 would be that a master

would be obligated to pay wages to other

members of the crew when the master has

the abi ty to pay those wages, but the

owner would be obligated to pay wages

to all of the crew, including the

master (deposed or in fact) when the

owner has the ability to pay. Any

interpretation excluding the master from

receiving wages pursuant to 58596 would,

we submit, ignore the definition of

"seaman," ignore the 1968 intent of

Congress, ignore the speed of modern

communications and ignore the realities

of a situation where the master is not

better off than the other members of the

crew when it comes to receipt of his

-20-

earned wages. Here River Lines, Inc.

admitted not paying petitioner his earned

wages, and the jury found they were still

owed, and further found there was no

legally valid reason for the River Lines,

Inc.'s failure to pay those wages. Con-

sequently there seems no reason to con-

clude that petitioner should not get

penalty wages when any other member of

the crew would get them, particularly

when the circumstances for payment and

the ability to pay would be identical,

other than at one time petitioner was the

seaman in command of the M/V MODOC.

One of the strongest traditions

of the sea is that of the priority given

the seaman for his wages. It has often

been said to be “so sacred and indelible

that it adheres to the last plank of the

ship." Congress, following the tradi-

tions of the sea, codified them into

-21-

what are now called collectively the

"Seamen's Acts," 46 U.S.C. 8541 et seq.

The basic purpose “was to improve the

surroundings and conditions of American

seamen." Ladzinski v. Sperling Steam-

ship and Trading Corp., 300 F. Supp.

947, 954 (S.D.N.Y., 1969). The Court,

in Ladzinski, further stated that,

"Section 596 in particular was intended

to provide for the prompt payment of

wages to a discharged seaman."

Therefore, an investigation

must be undertaken to see who is a

seaman. 46 U.S.C.§ 713 is the definition

section of the “Seamen's Acts“ which

applies, according to the Historical

Note, to:

"Por distribution of title 53,

Sections 4501-4612, of the

Revised Statutes referred to

in the text, of which this§

is part see note under Section

543 of this title.”

The note referred to, states:

-22-

"Title 53 of the Revised

Statutes referred to in the

text, was comprised of Sections

4501-4612 of the Revised Stat-

utes and is now contained in

Sections 542a, 543, 545, 546,

561, 562, 564-571, 574-578,

591-597, 600, 660, 661-669,

674-679, 682-685, 701-703,

705-707, 709, 710 and 711-713,

of this title. (46 U.S.C.A.

543) (Emphasis ours)

§713 contains the following

definitions of "master" and “seaman”

which are to be used as enumerated

above in the "Seamen's Acts.”

„every perso: having the

command of any vessel belonging

to any citizen of the United

States shall be deemed to be

the master thereof and every

person (apprentices excepted)

who shall be employed or

engaged to serve in any capacity

on board the same shall be deemed

and taken to be a ‘seaman’; . .

The master of a vessel is a seaman even

when he has command.

In Warner v. Goltra, 293 U.S.

155, 55 S. Ct. 46 (1934), the Supreme

Court extended to the master of a tug

-23-

coverage as a seaman under the Jones Act,

46 U.S.C. §688. A master is a seaman

under the Jones Act. It is relevant at

this point to note the editorial embel-

lishment included after the headnotes

in the Supreme Court Reporter, it states:

"A ‘seaman’ in a broad sense

is a mariner of any degree

who lives his life on the sea,

and it is enough that what

he does affects operation and

welfare of the ship when she

is on a voyage, and in a

narrow sense the term is

limited to one who is an

ordinary seaman and nothing

more, a seaman as opposed to

the master or an officer though

the word ‘seaman’ once meant a

person who could hand, reef,

and steer, a mariner in the

true sense of the word, but as

the necessities of ships

increased so the word ‘seaman’

enlarged its meaning."

(Emphasis ours)

Even though the Court there noted that

there may be some basis for wage discrim-

ination between a “master” and "seaman,"

the Court's actual holding was that when

the master and the seaman are in the

234

same boat, then the term seaman

included the term master.

Congress has also recognized

the realities of shipping today. It

was formerly presupposed that the

master had a financial interest in the

vessel upon which he was sailing, or

that he had a close relationship with

the owner. However, Senate Report No.

1079, dated April 5, 1968, on P.L. 90-

293 which amended 46 U.S.C.§§ 600, 601,

and 604 in 1968, recognized the change

wherein it stated:

Today, however, the role of

the master as a participant

in the financial aspects of a

voyage is, in the vast majority

of instances, no different

from that of any other member

of the crew.”

Here petitioner was in no better position

than the rest of the crew as to wages,

so there should be no distinction under

8596.

-24-

The amendments to the above

stated statutes give the master a lien

on the vessel for his wages and disburse-

ments, and place the master on a “parity”

with all other members of the crew. The

Senate Report states that the master

“would be placed in the same position

as any other seaman with regard to pro-

tection against . 4eprivation or any

remedy for recovery of wages.” This is

an explicit indication of legilative

intent to accord modern-day masters the

same statutory rights and remedies as

other seamen with regards to payment of

their wages.

The importance of the reference

to the amendments including the master

within the lien provisions of the

"Seamen's Acts” is readily apparent in

reviewing cases denying the master the

remedy provided in 46 U.S.C. §596. Ina

case pre-dating the 1968 amendments,

Kennerson v. Jane R., Inc., 274 F. Supp.

28 (S.D. Tex. 1967), the Court stated,

“The master of a vessel has no lien on

the vessel for his wages,” and then

denied him penalty wages under §596. A

similar line of deductive reasoning was

stated in Payne v. SS Tropic Breeze, 423

F. 2d 236 (1 Cir. 1970) a case which

overturned a lower court finding recog-

nizing a foreign master's wage claim, the

appellate court's reasoning being that

the master's pre-1968 wage claim would

not prime a valid ship mortgage because

the master had no statutory lien. The

Court therefore refused to interpret

the term seaman in the ship Mortgage Act

to include a master, an interpretation

which would today be exactly the opposite

in light of the 1968 amendments, assuming

it involved an American vessel.

states:

Juxtaposed to the treatment

of ordinary seaman is that of

the master. As early as 1828

it was regarded as settled

that the master had no lien

against the vessel for his

wages. Our attention has

been called to no contrary

holding in the intervening

years. It was not until 1968

that Congress, after recog-

nizing the ancient rule,

enacted legislation giving

master of American vessels

liens for wages of the same

rank and priority as seaman's

wage liens. 24

In view of this history, it is

unlikely that the phrase in

question, the Ship Mortgage

Act was intended to include

masters. Nothing was to be

accomplished by such use of

the term, as masters did not

have maritime liens upon which

the statute could operate.

There inclusion would have been

meaningless.”

423 F. 2d at 242-243.

In footnote 24, the Court

"24. 46 U.S.C. 55 600-601,

606-608 (Supp. IV, 1968).

The statute, even if retro-

active, would not be helpful

here, as it applies only to

masters of American vessels.”

423 F. 2d. 243.

-27-

In reviewing the cases cited

under 46 U.S.C. §596, it should be noted

that without exception they were all

concerned with claims for pre-1968 wages.

Now that Congress has created lien for a

master's wages, and indicated in the

legislative history that a master is

to be placed in the same position as

any other seaman for recovery of wages,

when there is no conflict between the

master and the other seaman, the term

seaman should be interpreted to include

the master. Otherwise, it would be

ridiculous to legally require the master

to pay himself when he has neither a

financial interest in the vessel nor

a close relationship with the owner.

The present statute, §596, makes allow-

ances to prevent such a ridiculous result

with the disjunctive or“ by stating

the “master or owner shall pay.”

-28-

Looking to the interpretation the surrounding and condition

of American Seamen. Committee

of the statute, §596 has often been on the Merchant Marine and

Fisheries, H. R. Rep. No. 1657,

considered remedial in nature, and as 55th Cong., 2d Sess. 1-3 (1898).

Section 596 in particular was

such is granted liberal construction. ' intended to provide for the

prompt payment of wages to a

It has also, however, been called penal discharged seaman, id, at 3;

See Collie vs. Fergusson, 281

with an ac ing strict interpre- U.S. 52, 50 S. Ct. 189, 74

W “ L. Ed. 696 (1930), to insure

tation. Ladzinski, supra, citing many that he would not be turned

ashore with little or no money

cases pro and con, 1011 (1951), and in his pocket. See Malanos v.

Chandris, 181 F. Supp. 189°

Petterson v. United States, 274 Fed. (N. B. N. FV. 1959). Because of

his employers, see Underwood v.

1000, 1003 (8. ob. Nu. v. 1921). The Court Isbrandtsen Co., Inc., 100 F.

: Supp. 863, 865 (F. B. H. v. 1951),

in Ladzinski, after a discussion of both who might pressure him to

release claims by withholding

sides, stated at 955: sums to which he was indisput-

ably entitled. See e.g.,

“Regardless of the character- Prindes v. the S.S. African

izations of §596 as remedial 3 . . .

or penal, that provision must . 1959); Hume v. Moore-

be construed so as to effec- McCormack Lines, 121 F. 2d 336

tuate the legislative purpose (2 Cir. IAI The primary

of ameliorating the specific objective of 596 is to prevent

injustices that the Congress such coercion by deterring a

sought to eliminate." shipowner or master from

improperly making a deduction

The purpose for which Congress from a seaman's wages. See

Swain v. Isthmian Lines, Inc.,

enacted 8596 was stated at 954, as 360 F. 2d 81 (3 Cir. 1966) .*

300 F. Supp. at 954.

follows:

Here was a classic example of River Lines

"The basic purpose of the

Seamen's Acts, 46 U.S.C. trying to do exactly what Congress wanted

§541 et seq. was to improve

-30-

-29-

to avoid; petitioner was in necessitous

circumstances and needed his wages, but

River Lines refused to pay, setting

itself up as judge and jury. Now that

the proper jury has spoken, River Lines

should be made to shoulder all of the

obligations imposed by law.

By reviewing the entire pic-

ture of seaman's wages in light of the

traditions of the sea, the purposes

of the wage and lien statutes, the

amendments thereto with accompanying

legislative intent and acknowledgements

of contemporary realities of shipping,

and last by the expressions of the courts,

the master of a vessel should be

entitled to the provisions of 46 U.S.C.

§ 596.

Petitioner maintains further

that the Court of Appeals was in error

221

in following the District Court's

decision regarding the time period during

which the arbitrary or unreasonable

refusal to pay the seaman's wages must

arise in order to activate the penalty

provision of 46 U.S.C.,§ 596. The

decision of the trial court was premised

upon the assumption that, in order for

a seaman to recover penalty wages under

§596, the shipowner's unreasonable

refusal to pay must occur within the

statutory four day period from the date

of the seaman's discharge. Under this

interpretation, if a shipowner's initial

withholding of wages can be justified to

any degree, the seaman is precluded

from recovery even if the shipowner's

continued delay in payment is clearly

arbitrary, unreasonable, and unjustified.

Such a tortured construction subverts

the plain language and obvious intent of

=32@

the statute. River Lines, Inc.'s sole

authority, in according the statute

such a narrow interpretation, rests

upon the decision in McCrea v. United

States, 294 U.S. 23, 55 8. Ct. 291,

79 L. Ed. 735, reargument denied 294

U.S. 382, 55 8. Ct. 443, 79 L. Ed. 933

(1935). Such reliance is misplaced.

In McCrea, the Courts denied

recovery of double wages by a seaman who,

after demanding his wages, failed to

keep an appointment with the master and

departed to land leaving an address

before expiration of the legal time for

payment of wages. The McCrea Court

predicated its rejection of the peti-

tioner's demand for penalty wages on the

seaman's own misconduct, stating, "But

it [the statute] affords no basis for

recovery if, by his own conduct, he

precludes compliance with it by the

232

master or owner.” 55 8. Ct. 295

(Emphasis supplied). This distinction

was recognized in Southern Cross Steam-

ship Company v. Firipis, 285 F. 2d 651

(4th Cir. 1960), in which the Courts

held that a shipowner, who had errone-

ously assumed that a seaman's wages had

been paid in full, was no longer justi-

fied in such an assumption after the

seaman had testified to the contrary.

The Court awarded penalty wages from the

date of the seaman's testimony.

In disposing of the defendant's

reliance on McCrea, the Southern Cross

Steamship Company Court declared:

"As previously mentioned, in

the present case, contrary to

McCrea, there was no finding

of excuse or justification

within the period during which

wages should have been paid.

Moreover, even if there had

been facts indicating some

justification for withholding

wages for a time, there is no

suggestion that any conduct of

-34-

the seaman contributed to the

delay ...”"

"Certainly, McCrea v. United

States, supra, holds that

where some fault of the seaman

furnishes justification for the

initial failure to pay wages

at the prescribed time, the

shipowner is not to be held

to the double wage liability

even if the excuse for non-

payment later becomes inappli-

cable. Moreover, the Supreme

Court's opinion in McCrea

indicates that even if facts

other than the seaman's conduct

constitute a legally sufficient

excuse for non-payment of wages

at the time prescribed in the

statute, normally no double

wages will be imposed for a

later period after the excuse

ceases to exist. However, we

do not think that the rule

laid down in McCrea is as far-

reachirg as the shipowner's

contention in the instant case.

Fact situtations may arise

where the District Court

finds the shipowner's conduct

sufficiently inexcusable to

render him liable for double

wage penalties. However,

eguities not amounting to

justification may be found to

have existed when the wages fell

due and which later became

inapplicable. The District

Court may in such circumstances

properly postpone the running

of double wages, confining

—34—

them to the period after any

equity supporting the ship-

owner's action has disappeared."

In the case at bar, River Lines,

Inc. can hardly contend that their initial

failure to pay petitioner's wages was

due to any fault on his part, as peti-

tioner was chained to a fixture in his

cabin at the time.

In relying on McCrea, River

Lines, Inc. has chosen to overlook the

long-established principle that the

reassessment of damages under 46 U.S.C.

§596 rests within the discretion of the

Court and depends upon the equities of the

particular case. Mystic S.S. Company v.

Stromland, 20 F. 2d 342 (4th Cir. 1927),

cert. denied 276 U.S. 618, 48 S. Ct. 213,

72 L. Ed. 734; Mavramatis v. United

Greek Shipowner's Corporation, 179 F. 2d

310, (lst Cir. 1950); Samad v. The Etive-

bank, 134 F. Supp. 530 (E. D. 2a 1950);

-35-

Prindes v. The S.S. African Pilgrim, 266

F. 2d 125 (4th Cir. 1959); Spera v. The

Argadon, 150 F. Supp. (E.D. 2a. 1957).

Numerous cases have held that

where some equity supporting the ship-

owner's refusal to pay wages existed at

the time a seaman's wages became due,

which subsequently became inapplicable,

penalty wages will be assessed from

the time that such equity has disappeared.

Thus in Samad v. Etivebank, supra, the

Court held that an injured seaman whose

physical condition for a thirty day

period precluded any efforts to effect

payment of wages due him at the time of

his injury, was entitled to recover

penalty wages beginning thirty days

after his wages became due. In Spera v.

The Argadon, supra, the Court ruled

that, although the initial delay in

paying an injured seaman's wages may have

been excusable due to a misunderstanding

between the ship's agent and the seaman's

attorney, the shipowner's continued

delay, after testimony by the seaman

that his wages were still owing, was

“without sufficient cause, entitling

petitioner to penalty wages from the

date of his testimony. The Spera Court

stated:

"But when libellant was

obviously still asserting his

claim for wages at the time of

his hearing in open court,

there no longer existed any

moral justification for

prolonging the matter, and

the continued action of the

shipowner at least consti-

tuted a failure not attribu-

table to impossibility of

payment.” Collie v. Fergusson,

281 U.S. 52, 50S. Ct. , 24

L. Ed. 696, 1930 A.M.C. 408.

The jury in this case did not

find that River Lines, Inc.'s initial

withholding of wages was justified; it

merely found that, because of the

equities of the factual situation,

petitioner was unable to escape from his

-37-

confinement in order to demand his wages

within the four day period. The arbi-

trariness of River Lines, Inc. did not

arise within four days of the mutiny.

Thus, this case fits squarely into the

line of cases upholding judicial discre-

tion in the assessment of penalty wages

under 46 U.S.C. §596.

A reversal of the decision of

the Court of Appeals would have far-

reaching effects and would have a great

impact upon masters of American vessels.

According to figures compiled by the

Superintendent of Documents of the

United States Coast Guard, there are

approximately 102,000 vessels registered

in the United States each of which has

a master who would fall within the

scope of 46 U.S.C., Section 596, under a

-38-

ruling in petitioner's favor [United

States Coast Guard, Merchant Vessels

of the United States (United States

Government Printing Office, 1975)].

In that light, a favorable decision for

petitioner would be instrumental in

the lives of 102,000 American masters

because it would put these people on

a parity with other members of the crew

and would give them protection from the

unscrupulous practices of owners of

vessels who have withheld wages for the

purpose of coercing a master to reling-

uish his right to seek legal redress.

It is this abuse by shipowners that other

members of the crew did not have to

contend with. It is now time for the

Court to take notice of such practices

by shipowners and realize the necessity

for rules of fair play between shipowners

and masters. Wages were not meant to be

-39-

utilized by owners to serve as leverage

in persuading a master to abandon a

rightful claim. If a master is put on

parity with other members of the crew,

he could not with impunity be left

penniless in a strange land without

any means of transportation to the

United States, and without maintenance

and cure. The number of persons within

the class of masters is significant

enough to necessitate a judgment for

petitioner. The law must accomodate

changing times. It is contended that

circumstances in shipping have been

altered dramatically by technology, and

the Court should take note that a

judgment for petitioner would effectuate

necessary and important changes in the

lives of these 102,000 American masters.

It has been indicated that the “Seamen's

Acts, 46 U.S.C., Section 541 et seq.

-40-

were intended by Congress to “improve

the surroundings and conditions of

American seamen." Ladzinski, supra.

Petitioner is appealing to the Court

to realize the need to place such a

significant class of seamen, that is,

masters of vessels, within the protection

intended by Congress. The times

necessitate this change.

Appearing“in Proper

2201 Magazine Street

New Orleans, LA 70130

(504) 525-0552

~ 4/-

APPENDIX "A"

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-4197

THOMAS P. KEYS a/k/a HARRY J. RAMSEY,

Plaintiff-Appellant,

vs.

M/V MODOCK and THE RIVER LINES, INC.,

Defendants-Appellees,

CHARLES J. PISANO,

Intervenor-Appellee.

Appeal from the United States District

Court for the Eastern District

of Louisiana

(January 31, 1977)

Before BROWN, Chief Judge, AINSWORTH,

Circuit Judge, and JAMESON*, District

Judge.

A-1

PER CURIAM:

In this appeal from the second

trial, which rests on the District

Court's having granted a motion for a

new trial, after jury verdict for

appellant, we affirm the District

Court's grant of a new trial on the

basis of the Court's opinion in 372

F. Supp. 1131.

AFFIRMED.

*Senior District Judge of the

District of Montana sitting

by designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-4197

D. C. Docket No. CA 71-1910 "C"

THOMAS P. KEYES a/k/a HARRY J. RAMSEY,

Plaintiff-Appeliant,

versus

M/V MODOCK and THE RIVER LINES, INC.,

Defendants-Appellees,

CHARLES J. PISANO,

Intervenor-Appel lee.

Appeal from the United States District

Court for the Eastern District

of Louisiana

Before BROWN, Chief Judge, AINSWORTH,

Circuit Judge, and JAMESON*, District

Judge

JUDGMENT

This cause came on to be heard

on the transcript of the record from

the United States District Court for

the Eastern District of Louisiana, and

was argued by counsel.

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this

Court that the judgment of the said

District Court in this cause be, and

the same is hereby, affirmed.

JANUARY 31, 1977

ISSUED AS MANDATE: February 23, 1977

*Senior District Judge of the

District of Montana, sitting

by designation.

APPENDIX _ BV

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HARRY J. RAMSEY,

Plaintiff,

versus

M/V MODOC and RIVER LINES, INC.

Defendants.

.

„ „ % „% „ „„ „ „ „„ „ „„ „„ eR „*

*eeenneeee ie ® ®

CIVIL ACTION

NO. 71-1910

SECTION VC“

FILED: February 19, 1974

Benjamin W. Reisch, Clerk

James A. Wysocki, Esq.

Henry klein, Esq.

Attorneys for Plaintiff

Robert A. Vosbein, Esq.

Robert G. Partridge, Esq.

Attorneys for Defendants

Charles J. Pisano, Esq.

Attorney for Intervenor

RUBIN, District Judge:

A-2

3 „

The plaint if, who captained the

M/V MODOCK during most of its maiden

voyage from New Orleans to San Fran-

cisco, sued the vessel and its owner

River Lines, Inc. for the injuries

and other damages he sustained when the

crew of the vessel took command from

him midway through the voyage. After

three and one-half days of trial, the

jury returned a verdict for the plain-

tiff on both a negligence count and an

unseaworthiness count, awarding him

$15,000 damages, $2,000 in wages due,

and $379 for lost property. The defen-

dant, River Lines, Inc., has now moved

for judgment notwithstanding the

verdict or, in the alternative, for

a new trial on all issues. The plain-

tiff opposes these motions and asks

that judgment for penalty wages be

entered under 46 U.S.C. 596 in

accordance with the jury's finding by

special interrogatory that the defen-

dant withheld plaintiff's wages with-

out sufficient cause.

PENALTY WAGES

Although it was adverted to at the

pre-trial conference, the penalty wages

issue was first joined when the parties,

belatedly and after the time fixed by

the court, submitted their proposed jury

instructions. At that time, the parties

dispute focussed on Mr. Ramsey's status

as a master: was he a master when the

wages became due, and if so, could a

master recover the statutory penalty?

In a conference called during a brief

recess, the court indicated that

Mr. Ramsey's status was a matter for

the court's determination, since there

appeared to be no dispute about the

material facts; the court also

—

———— —

— . — —

ee ee. „4

indicated a present disposition to

enter a directed verdict against the

plaintiff on this issue because of

its judgment about Ramsey's status and

its reading of the statute. Later, and

before the case went to the jury, the

court informed counsel that it would,

in order to complete the record, instruct

the jury on the penalty wage issue and

submit to it the question of defendant's

conduct in withholding Mr. Ramsey's

wages.

As a result, the Court's instruc-

tions and the jury's findings on

wages read as follows:

All members of a vessel's crew,

including the master, are

entitled to recover their wages

for the entire voyage if they

must leave the ship because they

become disabled in its service

or, because of the unjustified

actions of the owner or his

agents, they are unable to con-

tinue the voyage. If a member

of the crew deserts, however,

he is not entitled to recover

these wages. A seaman deserts

when he abandons his duty by

quitting the ship before the

termination of his engagement,

without justification and with

the intention of not returning.

In addition, the law provides

for a penalty, fixed in the law,

that an employer must pay a sea-—

man a penalty when it refuses or

neglects to make payment without

sufficient cause witin twenty-

four hours of the end of the

voyage. "Without sufficient cause“

means arbitrarily or unreasonably

or willfully--that is without a

reasonable cause.

17. Did Mr. Ramsey at any time

during the voyage desert the

M/V MODOCK?

YES NO ’

Escaped

If you answered question No. 17 yes“

you need not answer questions 18 - 20.

18. Does the defendant owe any wages

to Mr. Ramsey, and if so, how

much? And for what dates?

— —— — tl ay,

YES X AMOUNT $2,000.00

NO DATES 6/-/70 to 7/-/70

19. Did the defendant fail to pay these

wages arbitrarily, unreasonably,

or wilfully?

YES x NO

The court refused to give defen-

dant's Proposed Charge No. 8: “Further,

I charge you that if the ship owner's

failure to pay wages to the plaintiff

was reasonable initially but later

became unreasonable, the plaintiff is

not entitled to the double wage pen-

alty." The defendant cited only McCrea

v. United States, 1935, 194 U.S. 23,

as authority, and an examination of

that case shows that this language is

taken out of context and then over-

simplified.

The court remains convinced that

a directed verdict on these facts was

appropriate, since under no construction

of them would Mr. Ramsey be entitled to

penalty wages. Under the penalty wage

statute, 46 U.S.C. 596, only seamen can

claim the penalty; Mr. Ramsey was hired

as a master, and he remained a master so

long as he was performing services for

the vessel.

It is true that under the Jones

Act, as the Supreme Court first held

in Warner v. Goltra, 1934, 293 U.S. 155,

55 8. Ct. 46, masters are considered

to be “seamen” and they are therefore

entitled to sue under the Act. But

in Warner itself, the Court carefully

distinguished the Jones Act defini-

tions of master and seaman from the

definitions applicable in wage claim

cases:

A goodly number of statutes

give a remedy to seamen for

wages wrongfully withheld, or

—— — —— ee Se ——— ——

—— ———

—— — K —ͤ *

3

— ee

define terms of payment that

agreement may not vary. In

respect of dealing of that order,

the maritime law by inveterate

tradition has made the ordinary

seaman a member of a favored

class. He is a “ward of the

admiralty,” often ignorant and

helpless, and so in need of

protection against himself as

well as others. The master, on

the other hand, is able in most

instances to drive a bargain for

himself, and then when the bargain

is made to stand upon his rights.

Discrimination may thus be rational

in respect of remedies for wages.

55 S. Ct. at 49.

Four years later the Court held

expressly that masters’ wages were not

protected by a related wage-protection

statute, 46 U.S.C. 601. The decision

turned upon an interpretation of the

very definitional section, 46 U.S.C.

713, that gives content to the terms

“master” and “seaman” in the penalty

wage statute. Blackton v. Gordon,

1938, 303 U.S. 91, 58 S. Ct. 717.

Unless time has undercut their

rationale or Congress has overridden

them, these two decisions must govern

Mr. Ramsey's claim. He argues quite

forcefully and persuasively that both

have occurred: masters now are often

as powerless to protect their wages

as seamen, and Congress recognized as

much when it amended Title 46 in 1968

to give masters as well as seamen a

lien on the vessel for unpaid wages.

The Court has examined the legislative

history of this amendment and partic-

ularly Senate Report No. 1079, April 5,

1968 To accompany H.R. 13301 ; it

seems principally to reflect a concern

for the position of the master's wage

claim in bankruptcy rather than a broad

desire to “equalize” masters and

seamen's wage remedies. Moreover,

what Congress chose not to do in

expanging the wage protection scheme

of Title 46 to include masters is as

Significant as what it chose to do.

Congress was aware of modern conditions

and the changed role of a master when

it made these revisions, yet it did not

extend the penalty wage remedy to mas-

ters. In these circumstances, its

silence must speak eloquently to this

Court.

But, the plaintiff argues, even if

a master is not entitled to penalty

wages, Mr. Ramsey ceased to be a master

when the crew took control of the

vessel and he then “reverted” to sea-

man status. 46 U.S.C. 713 does define

a seaman as “any person (apprentices

excepted) who shall be employed or

engaged to serve in any capacity on

board." The difficulty with plain-

tiff's argument, which rather tortures

the statutory definitions, is that

Mr. Ramsey was hired as a master and

performed services for the vessel only

in that capacity; after the episode off

Acapulco, he performed no services

whatsoever. It may be that a master

who relinguishes command and then

serves for the rest of the voyage is

entitled to the penalty -- for what-

ever seaman's wages were withheld --

but Mr. Ramsey did not do that. He was

hired and he worked only as a master;

if he was not a master, he was not

“employed or engaged to serve in any

capacity on board.”

But even if the court is incorrect

on this point, and Mr. Ramsey might

recover the penalty -- either because

masters may recover it or because

Mr. Ramsey became a seaman after the

mutiny -- a new trial would be required

on this issue. As so often happens

—— ——Ü—Ü— — ——

oe K —— —

when major issues are left obscure until

the eve -- and in this case, past the

eve -- of trial, the instruction the

jury received on the entire penalty

wage issue was incorrect, for the

issue is substantially more complex

than counsel made it appear. The

statute upon which Mr. Ramsey's claim

for penalty wages rests, 46 U.S.C.

596, reads:

"The master or owner of any

vessel making coasting voyages

shall pay to every seaman his

wages within two days after the

termination of the agreement

under which he was shipped, or

at the time such seaman is dis-

charged, whichever first happens;

and in case of vessels making

foreign voyages, or from a port

on the Atlantic to a port on the

Pacific, or vice versa, within

twenty-four hours after the cargo

has been discharged, or within

four days after the seaman has

been discharged, whichever

happens first; and in all cases

the seaman shall be entitled

to be paid at the time of his

discharge on account of wages

a sum equal to one-third part of

the balance due him. Every master

or owner who refuses or neglects to

make payment in the manner herein-

before mentioned without sufficient

cause shall pay to the seaman a

sum equal to two days pay for each

and every day during which payment

is delayed beyond the respective

periods, which sum shall be recov-

erable as wages in any claim made

before the court; but this section

shall not apply to masters or

owners of any vessel the seamen

of which are entitled to share in

the profits of the cruise or voyage.

This section shall not apply to

fishing or whaling vessels or

yachts. R.S. 4529: Dec. 21, 1898,

c. 28 4, 26, 30 Stat. 756, 764;

March 4, 1915, c. 153, 3, 38 Stat.

1164.

To support any recovery, the jury needed

decide as a preliminary matter whether

Mr. Ramsey's discharge or the ship's

discharge of cargo occurred first, in

order to determine whether the twenty-

four hour or the four day period should

apply. Then the jury had to determine

that River Lines failure to pay wages

within the applicable period was with-

out sufficient cause during that same

period; McCrea holds that an owner's

behavior, even if it later became

arbitrary or unreasonable, does not

make him liable for a penalty if

sufficient cause to withhold wages

was present during the statutory

period.

Moreover, there is a substantial

body of case law holding that the

statutory penalty is not to be auto-

matically computed and assessed by the

Court even if the defendant is liable;

the court has some discretion over the

amount. See, e.g., Southern Cross

Steamship Co. v. Firipis, 4 Cir. 1960,

285 F. 2d 651, and cases cited therein;

Kontos v. 8.8. SOPHIE C., E. D. Pa. 1964,

236 F. Supp. 664. What vas once a

matter for the court in the exercise

of its equitable discretion has pre-

sumably become, at least since Fitz-

gerald v. United States co., 1963,

374 U.S. 16, 83 S. Ct. 1646, a matter

for the jury, since the claim for

penalty wages is made in a complaint

that includes a Jones Act claim. Thus

the jury should have been instructed

that, even if they found a penalty due,

they might toll the period during which

it was to run for reasons of equity.

The court's instructions to the

jury on the penalty wage issue were

thus both incomplete and incorrect.

Even if the court incorrectly directed

a verdict because of an erroneous

reading of the penalty wage statute,

the jury's verdict could not support a

judgment for penalty wages. The jury

simply did not have an opportunity to

pass upon the claim and all its ele-

ments because it was framed improperly.

It may be, as the plaintiff argues,

i ct

——s 1 —

that there was some evidence of unreas-

onable and arbitrary failure to pay

wages within the statutory period, per-

haps even enough to support a jury ver-

dict for the plaintiff on this issue;

but it is certain that the jury never

had an opportunity properly to delibe-

rate, and this court will neither

attempt to divine what result this jury

would have reached nor decide the issue

on its own.

Even if the error in instructions

had been corrected at the last minute,

and the question correctly put to the

jury, a new trial might still be

required on this issue. The plaintiff

presented a great deal of evidence

about conversations and correspondence

between the parties and their attorneys

at times subsequent to the four day

period; plaintiff's attorney examined

Mrs. Ramsey at some length in a partic-

ularly emotional scene about her visit

to River Lines’ office in an attempt to

get her husband's wages, a visit she

made long after the statutory period

had run. Whatever the effect of this

evidence on the other issues -- and

more remains to be said about that --

and whatever weight it might have been

given by a properly instructed jury

with respect to tolling the penalty

reward, this testimony, admitted with-

out any limiting instruction, infected

the jury's consideration of the pen-

alty wage issue. Much if not all of

it should have been either excluded or

admitted only for a limited purpose,

since the only proper issues were

(a) whether the defendant had reason-

able grounds during the statutory

period to refuse payment; and (b) if

not, and if the penalty was due, whether

it would run for the entire period of

time from that time until paid.

Plaintiff's motion for judgment

notwithstanding the court's directed

verdict on the penalty wage issue is

DENIED.

Unseaworthiness

The jury evidently decided that

the M/V MODOCK was unseaworthy because,

in the language of the instruction, it

found that “each crew member or the

crew members as a whole either lacked

competency or had a wicked disposition,

a propensity to evil conduct, or a

savage and vicious nature." The

evidence upon which they reached this

conclusion conflicted.

The plaintiff's story, in essence,

was that the crew early in the voyage

began to subvert him because they were

unaccustomed to deep water voyages,

afraid of sailing too far from shore,

and mistrustful of him. When he was

off watch and asleep, the crew members

on duty would alter the ship's course

to bring it closer to shore; the First

Mate, Mr. Mastrup, was particularly

responsible for these maneuvers,

Mr. Ramsey felt. Finally, the plain-

tiff was forced to arrest Mr. Mastrup

and confine him to the forward hold.

The crew, however, freed the First

Mate and subdued Mr. Ramsey, keeping

him confined until the ship docked in

Acapulco, where the matter was handed

over to the Mexican police. While the

ship was in Acapulco, Mr. Ramsey

managed to escape, and he then made his

‘ way back to the United States.

The only evidence to support

Mr. Ramsey's version of these events,

and in particular his claim that the

nature of the crew made the vessel

unseaworthy, is his testimony, the

bare fact of the alleged mutiny or

removal of Mr. Ramsey from command, and

the admitted fact that several members

of the crew had never sailed outside

of the San Francisco harbor.

The defendant's version is simply

that Captain Ramsey, not the crew, was

incompetent, and that the takeover by

the crew was result of his incompetence

and not their disposition. To support

its version of the incident, the

defendant offered the testimony of

four crew members at trial, the depo-

sitions of three others, and the test-

imony of Mr. Beers, River Lines Pres-

ident.

The jury evidently believed

Mr. Ramsey's version of the mutiny,

and their conclusion is of course

entitled to great weight. Certainly

their decision is supported by enough

evidence to withstand a motion for

judgment notwithstanding the verdict.

Mr. Ramsey's testimony was “substantial

evidence," in the sense that, after

hearing it, “fair-minded men in the

exercise of impartial judgment might

reach different conclusions." Boeing

v. Shipman, 5 Cir. 1969, 411 F. 2d 365.

With his testimony there was not a

complete absence of probative facts to

support the conclusion reached" by

the jury. Fare v. Southern Railway

Co., 5 Cir. 1971, 438 F. 2d 933.

But if the court's function in

deciding a motion for judgment not-

withstanding the verdict is to look

for substantial evidence, its role in

considering a motion for a new trial,

brought on the grounds that the verdict

is against the weight of the evidence,

is quite different. As Moore puts it:

The trial judge, exercising a

mature judicial discretion, should

view the verdict in the overall

setting of the trial; consider

the character of the evidence and

the complexity or simplicity of

the legal principles which the

jury was bound to apply to the

facts; and abstain from intere-

fering with the verdict unless

it is quite clear that the jury

has reached a seriously erroneous

result. The judge's duty is

essentially to see that there is

no miscarriage of justice. If

convinced that there has been

then it is his duty to set the

verdict aside; otherwise not.

6A Moore's Federal Practice

59.08 5 at p. 59-161.

An independent evaluation of the

evidence in this case has convinced

the court that the jury did in fact

reach a seriously erroneous result

and that the interests of justice

would best be served by granting a

new trial.

The court found Captain Ramsey's

testimony unpersuasive. Evidence as

to his background and character intro-

duced by the plaintiffs and never

rebutted -- his use of several names

and social security numbers, the con-

fusion surrounding whether he ever

had a master's license, his lack of

actual experience as a master -- tended

to cast some doubt on his testimony

in general. His inability to plot an

accurate course in response to naviga-

tional situations put to him while he

was on the witness stand because, among

other reasons, he failed to take wind-

drift into account suggests that it

was his incompetence and not the crew's

disobedience that put the ship off

course. His continuing confusion as

to the meaning of standard nautical

terms during his testimony reinforces

this conclusion. Testimony from the

crew about his behavior during the

voyage and his own inability to explain

conflicts between his testimony at

trial and log entries next to his

initials also undermine the credibility

of hisversion of events. Finally, the

intangible factors ofmien and manner

during testimony lead the court to

doubt Captain Ramsey's story.

The only other evidence tending

to indicate that the crew was incompe-

tent, and the vessel thus unseaworthy,

was the testimony that most of the

crew had not sailed on deep water

before, and the fact that the crew

did remove Mr. Ramsey from command.

While a jury might draw inferences

from evidence like this in other cases,

the court is convinced that the

inference evidently drawn here --

that the crew was incompetent -- is

unwarranted.

Mr. Ramsey's testimony contrasted

sharply with the testimony of the

MODOCK's crew members and Mr. Beers,

both in content and indicia of credi-

bility. Counsel for the plaintiff

made much of the fact that the crew

members' stories coincided, suggesting

that this indicated agreement to cover

up the real facts. From listening

to the testimony and watching these

witnesses as they testified, the court

is convinced that accurate memories

and truthful narration are a far more

probable explanation for this “coin-

cidence” than the conspiracy plain-

tiff's counsel to give the testimony

of these crew members the weight it

deserved.

It should be noted, too, that

all of the irrelevant evidence admitted

on the issue of penalty wages, emotional

and inflammatory as some of it was, may

have warped the jury's consideration of

the unseaworthiness issue. This possi-

bility has not influenced the court's

independent evaluation of the evidence

on unseaworthiness; it may, however,

provide some explanation for the jury's

verdict.

In light of all the evidence

adduced at trial, then, the court

finds that the jury's verdict on the

issue of unseaworthiness is so seri-

ously in error that a new trial is

necessary.

Negligence

In order to recover for negli-

gence in a case like this, the plain-

tiff must show exactly what he must

show to recover for unseaworthiness --

that the crew was incompetent, vicious,

or inclined to mutiny. Thus the

evidence upon which the jury found

the plaintiff negligent was just as

weak as the evidence supporting the

unseaworthiness verdict, and a new

trial must be granted as to this count

for the same reasons. In addition,

to support a negligence recovery, the

plaintiff must show that the defen-

dant knew or should have knownof the

crew's incompetence or other unfit-

ness for the voyage. See Thompson

v. Coastal Oil Co., D.N.J. 1954, 119

F. Supp. 838. The evidence supporting

this element of the claim was, if

anything, weaker than the evidence

going to the crew's nature; at most

the plaintiff proved a failure to

investigate each crew member individ-

ually.

The power of a trial judge to

grant a new trial originates in the

common law; the Constitution specific-

ally preserved it, and the Federal

Rules of Civil Procedure recognize it.

Nonetheless, it is not a power that any

judge does or should exercise lightly.

But in this case, in view of the

court's firm conviction that the jury

verdict in finding the vessel unsea-

worthy and the defendant negligent

under the evidence presented to it

resulted in a miscarriage of justice,

the defendant's motion for a new

trial as to these issues is

GRANTED.

UNITED STATES DISTRICT JUDGE

New Orleans, Louisiana

February 18, 1974

MINUTE ENTRY

MARCH 26, 1974

RUBIN, J.

HARRY J. RAMSEY

versus

M/V MODOC AND RIVER LINES, INC.

CIVIL ACTION

NO. 71-1910

SECTION "Cc"

FILED: MARCH 26, 1974

CLERK: Benjamin W. Reisch

* * *

In a previous opinion, the Court

granted defendant's motion for a new

trial on the issues of negligence and

unseaworthiness and refused to set

aside its directed verdict on the

issue of penalty wages. That opinion

did not, however, dispose of two

further claims on which the jury

found for Mr. Ramsey and as to which

the defendant has moved for a new

trial: the claim for wages due, and

the claim for property left aboard

the vesel and not returned.

The principal evidence on which

both these claims rested was the

plaintiff's own testimony, but other

evidence tended to corroborate him.

Mr. Ramsey testified as to the voyage

and his reasons for leaving the ship

in Acapulco; the fact that he made

most of the voyage as Captain was

not disputed, and the jury could

conclude from his testimony and that

of other crew members that he was

justified in leaving the ship -- or

at least that his departure did not

amount to desertion. Mr. Ramsey

testified also as to the value of the

property he left aboard the ship.

Although the jury's verdict in this

regard did not coincide with his

APFIDAVIT

testimony, there was evidence from State of Louisiana

other witnesses on this subject, and Parish of Orleans

the jury was entitled to dispute On this 18th day of May,

Mr. Ramsey's valuation of his property. 1977, before me, the undersigned

In short, if his testimony was credited authority, notary public duly commis-

sioned in and for the Parish of Orleans,

there was enough evidence before the

jury to support its verdict on these

issues.

Although the Court did find

Mr. Ramsey's evidence on the major

issues of unseaworthiness and negli-

gence unbelievable, his testimony on

these last two issues was not so

inherently incredible that a new

trial as to them is warranted. The

defendant's motion for a new trial

on these issues is, therefore, DENIED.

State of Louisiana, personally came

and appeared Harry J. Ramsey, who, being

duly sworn, deposed and stated unto me

that he has served a copy of the fore-

going petition for writ of certiorari

on all counsel of record on this day

by depositing same properly addressed

in the United States Mail, first-class

and postage pre

Sworn to and subscribed

before me this a 2 of Ys. 1977.

ames H. nge, ry