Petition for Writ of Certiorari — Gearin v. Weyerhaeuser Line
Supreme Court brief1974
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SUF Mas GOURT, U.S
IN THE
MICHAEL RODAK, 52. CH
SUPREME COURT OF THE UNITED
Roe Cee:
October Term, 1973
vo. €3°- 6805
ba Ma a la
PATRICK D. GEARIN,
Petitioner,
+4:
WEYERHAEUSER LINE, 4
4
Respondent. ;
..
‘
2
PETITION FOR A WRIT OF CERTIORARI :
TO THE :
UNITED STATES COURT OF APPEALS :
:
FOR THE NINTH CIRCUIT :
ERIC J. SCHMIDT %
528 Mills Tower =
220 Bush Street :
San Francisco, California ~—
=;
$
a
Counsel for Petitioner
TABLE OF CONTENTS
Page
Gpemagme BOIGW . «5s 8 tw kt 2
PPE UONOGRUN 4 4 6 s ¢ 4 & aM 2
Questions Presented ......., 3
statutes Involwe@d ....+2:2e-s. 6
Statement of Case ........ 6
Reasons for Granting the Writ .. 17
CEGOE 4 6 « & & & « os 4s Ss 22
INDEX TO APPENDICES
Appendix A. 1. Judgment and Order of the
U.S. District Court for
the Northern District of
California
2. Findings of Fact and
Conclusions of Law of the
U.S. District Court for
the Northern District of
California.
Appendix B. Decision of the U.S. Court
of Appeals for the Ninth
Circuit
Appendix C. New Finding on Burden of
Proof on Remand
Appendix D. Petition for Rehearing
Appendix E, Order Denying Petition for
Rehearing
Appendix F, Tllustrative News Item
TABLE OF AUTHORITIES CITED
Cases: Page
A:xguelles v. U.S. Bulk Carriers
Oe F590 1068 foes ck a a ae as
Forster v. Oro Navig. Co.
128 F.Supp. 113 (S.D.N-.Y. 1954) 5
Gerber v. Spencer
278 F. 886 (N.D.Ccal. auees « & % 5
Isbrandtsen v. Johnson
72 S.Ct. 1011, 343 u.s. 779 « Sead
Statutes:
TIT. 46 U.S.C. Section 596 .... 3, 4
Section 701 ... 3,4,5,
13,14,15
17, 18,
Section 702 ... 16,20
Administrative Proc. Act
(TIT. 5 7, 8,.¢,?
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973
No.
PATRICK D, GEARIN,
Petitioner,
Vs.
WEYERHAEUSER LINE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TO THE CHIEF JUSTICE and the ASSOCIATE
JUSTICES OF THE SUPREME COURT OF THE UNITED
STATES:
Petitioner PATRICK D. GEARIN, plaintiff
below, prays that a writ of certiorari issue
to review the judgment of the United States
Court of Appeals for the Ninth Circuit
entered in this case on January 21, 1974,
(Petition for Rehearing denied on March 11,
1974).
on se
OPINIONS BELOW
The judgment and order of the District
Court is not officially reported but is
reproduced in Appendix A attached hereto.
The opinion of the Court of Appeals
is not officially reported but is reprod-
uced in Appendix B attached hereto.
JURISDICTION
The petitioner in this case is an
American seaman who is seeking enforce-
ment of those basic statutory rights which
were created to ensure to seamen that they
will receive all of their earned wages in
timely manner. These statutes were enax-ted
as the Shipping Commissioners Act of June,
1872 and are designated today as TIT. 46
U.S.C., Sections 542a through 713 (Merchant
Seamen) .
The benefits provided by these laws
were denied to the petitioner by the Dis-
trict Court in San Francisco, California,
on August 27, 1971, when he sought judicial
relief from six different withholdings of
his wages by his employer.
The Ninth Circuit Court Of Appeals,
on January 21, 1974, affirmed the judgment
below with the exception of one claim. A
copy of the Memorandum opinion appears in
the Appendix to this petition.
A Petition for Rehearing was duly
filed on February 4, 1974. A copy appears
in the Appendix to this petition. It was
denied by the Court on March 11, 1974,
a,
QUESTIONS PRESENTED
as Is the lower court's concept of "stop-
page of wages," which permits withholding
a seaman's wages without complying with the
statutes, valid?
2. Can a seaman's wages be withheld by
the shipowner to repay itself for providing
the seaman with room and meals ashore when
the seaman, at the time, was disabled from
work as a result of his service in the
vessel?
3% Can a seaman's wages be withheld for
any purpose when no entry is made in the
Official Log with reference to such with-
holding?
4. When a master forfeits a seaman's
wages for a Section 701 offense and when
the Coast: Guard prosecutes the seaman for
that offense and finds that the offense
did not occur and that the log entry sup-
porting the forfeiture is illegal, does the
shipowner--when no appeal was taken from
the Coast Guard decision--have a right to
retain the forfeited wages?
os When a wage deduction has been shown
to be illegal, what remains by way of proof
by either party to determine whether or not
the Seccion 596 penalty should be enforced?
A. Is the proof of illegality decisive,
or is it a mere condition precedent which
permits the seaman to proceed with further
proofs?
B. Must the seaman also prove that the
master's conduct was "arbitrary, willful or
unreasonable," or is the burden on the ship-
owner to prove that "sufficient cause"
existed for the withholding despite its
illegality?
‘ll
C. Does the word "neglects" as used
in Section 596 possess its usual and ordin-
ary meaning?
6. Is the Court below correct in stating
that, where a wage withholding has been
found illegal, sufficient cause for having
made it can be established and the penalty
avoided if the master merely testifies
that he believed in good faith that the
withholding was justified?
7. When a seaman has renounced his employ-
ment contract with a vessel, either with or
without justification, and has refused to
sail with it, does he remain obligated to
perform orders of its master?
Can his refusal to obey orders of the
master following his renunciation of his
employment be punished by the forfeiture
of wages?
8. Under what conditions is a seaman
entitled to quit his vessel to seek medical
care?
9. Can a seaman's wages be withheld by
the shipowner for disobedience in port of
an order issued in port? What is the mean-
ing of the words "at sea" appearing in
Section 701 Fourth and 701 Fifth?
10. can a disabled seaman who quit his
service in a vessel to seek necessary medi-
cal care be punished by forfeiture of his
wages, either earned or unearned?
11. When a withholding of wages is not one
of those permitted by statute, is a court
justified in simply declaring it to be
legal, without rationale or discussion to
explain the inconsistency with the statutes,
or does it have a duty to inform the plaintiff
afSa
and others of its elementary reasoning?
12. Does the decision of the Court below
distort in part and deny in part the teach-
ing of Isbrandtsen v. Johnson, 72 S.Ct.
1011, 343 U.S. 779
13. When a seaman sues in the District
Court on several claims, and a jury awards
him $2,000.00 on one of them, is he not,
in the absence of any stated reason for
making an exception to Rule 54 (F.R.C.P.)
entitled to his costs as the prevailing
party?
14. When the Court of Appeals reverses
with respect to one of the claims which
was decided against the appellant below,
is he not, in the absence of any stated
reason for making an exception to Rule 39
(Rules of App. Proc.), entitled to his
costs, both in the District Court and the
Appellate Court, as the prevailing party?
15. Is the official record of a seaman's
prosecution before a U.S. Coast Guard
Examiner for a Section 701 offense, which
resulted in a decision from which no appeal
was taken, admissible in the District
Court? Is the aforesaid decision of the
Examiner binding on the District Court on
the question of the seaman's guilt or
innocence of the specific statutory offense
for which he was prosecuted in the Coast
Guard proceeding?
16. When the double-wage penalty is run-
ning, what will stop it?
Is the rule that was laid down in
Ger’ 2r_v. Spencer, 278 F.886 (N.D. Cal.
1922) and followed in Forster v. Oro
Navigation Co., 128 F.Supp. 113 (S.D.N.Y.
1954), requiring the payment of the wages
=
Originally owed and the accrued penalties
to date, the correct rule?
17. Can a seaman be denied his earned
wages on any grounds if the log entry
making the deduction: 1) was entered in
the Official Log after his official dis-
charge from the Shipping Articles by a
consular officer; 2) the log entry was
never made known to him?
STATUTES INVOLVED
The statutory provisions involved are
TIT. 46, U.S.C. Sections 201, 596, 597,
599, 600, 601, 602, 659, 670, 701, 702,
706 and 707.
STATEMENT OF THE CASE
Factual Resume:
On December 14, 1967, petitioner
signed articles as ordinary seaman aboard
the defendant's vessel, SS C.R. Musser,
for a voyage to Vietnam and return. The
ship departed from Portland, Oregon, for
Da Nang, Vietnam, on December 20, 1967.
After three days at sea, the petitioner
slipped on a ladder and suffered an injury
to his ankle which totally disabled him
from work (as events proved, until the
following May).
The master in his official records
stated his belief that petitioner had
suffered broken metatarsal bones in the
accident. Nonetheless, although the ves-
sel had no doctor or x-ray, and passed
close to Midway Island with its hcespital
facilities and a tug ready to take off
seamen, the master carried the petitioner
for 27 days to Vietnam. During this time
Po
he denied petitioner the use of the hos-
pital, which was empty, and denied that
the ship had crutches aboard, a statement
later refuted by deposition testimony of
the chief steward and another crew member.
Evidence at the trial disclosed that the
only use made of the hospital during the
entire voyage, except for the first night
of the petitioner's disablement, was as a
jail. The room ordinarily used as a jail
on Liberty ships was filled with ship's
stores.
Twenty-seven days after the accident,
on January 19, 1968, the vessel arrived at
Da Nang, Vietnam. Here the petitioner
received his first professional care, at
a United States Navy Clinic, where his leg
was placed in a cast and he was supplied
with crutches. The company's agent put
him in a hotel ashore, awaiting the mas-
ter's approval to repatriate him for medi-
cal care,
The master refused the repatriation
request and petitioner of recessity stayed
in Da Nang, wearing his cast and using
crutches, during the period (15 days) that
the vessel unloaded its cargo.
The master ordered the petitioner dur-
ing this time to report aboard the vessel,
anchored several miles out, every morning.
Because of his belief that compliance with
the order would expose him to unnecessary
danger in his crippled condition, the peti-
tioner, after one trip, refused to comply
further. At the trial, petitioner put on
the stand another member of the crew who
was an eye-witness to an accident on peti-
tioner's ship during this period wherein a
young, fit sailor was crushed to death in
the act of transferring from the ship's
gangway to a bouncing launch, under the
a
same circumstances that petitioner was
ordered to cope with twice every day while
wearing a leg cast. The trial judge refused
to allow the evidence in for the reason that
petitioner's refusal had started before this
accident occurred, and therefore petitioner's
decision was made without this knowledge of
the proof of how right he was.
Petitioner sought the aid of the U.
S. Consul in his attempts to be repatriated
for medical treatment, but was unsuccessful.
It is undisputed that air transportation
from Da Nang to the United States was avail-
able during the early part of the vessel's
stay. The Tet offensive broke out about
seven days after the vessel's arrival, and
this caused the Navy's medical facility to
be overwhelmed with battle casualties and
made it impossible for petitioner to
receive further care for his own injury.
The vessel departed Da Nang with the
petitioner aboard on February 3, 1968, and
arrived at Hong Kong three days later,
where it lay at anchor to receive bunkers.
Here petitioner's cast was removed
and his injury was examined by a British
doctor, this being the second examination
by a competent person since the accident
46 days before. This doctor, in his rep-
ort to the vessel, noted that he had found
a chip fracture which had not been dis-
covered at Da Nang, but which was uniting
satisfactorily. He put petitioner's leg
in a crepe bandage, advised continuing the
use of crutches, and declared him "not fit
for duty."
At this point, petitioner refused to
return to the anchored ship and allowed it
to depart without him for Okinawa, which
it did after staying only eight hours in
Hong Kong.
~~
Petitioner appealed to the vessel's
agents in Hong Kong to send nim to the
United States for medical care, but they
provided him instead with air passage to
Naha, Okinawa, where he arrived on February
9, before the vessel.
Petitioner reported to the company's
agent in Naha, who promptly arranged for
him to receive medical attention. On
February 10, the American Clinic at Naha
put petitioner's leg back into a plaster
cast ane continued his "not fit for duty”
status. The treating doctor at said
clinic recommended that petitioner be
repatriated at once for medical reasons.
The agent procured authority from the U.
S. office of the company and made the nec-
essary arrangements to do so. The peti-
tioner was provided with a hotel room and
subsistence while he awaited repatriation.
When the vessel arrived at Naha on
February 11, the master was informed that
arrangements had been completed to repa-
triate the petitioner on February 15, and
that petitiorer would need his shct rec-
ords (carried on the vessel) to avoid
additional, unnecessary inoculations. The
master testified that he did not feel that
repatriation was warranted, and regarded
the whole business as evidence of corrup-
tion whereby the company's local agent
worked collusively with the local doctors
to “ramrod" seamen out through the travel
agency which the vessel's agent also oper-
ated, for the sake of the commissions
involved.
The evening before petitioner's sched-
uled departure, after the master had been
informed by the agent that petitioner would
be calling for his shot records, the peti-
tioner visited the vessel and asked the
master for his shot records. Although they
«i=
were the property of the petitioner, the
master refused them. (As a result, the
petitioner was required to submit to
unneeded shots the next morning in order
to leave for the United States.) The peti-
tioner then asked for some of his accrued
wages. The master refused, and in his
written notes describes that he told the
petitioner that at that moment he was in
debt to the vessel. (The master's own
Wage Voucher, prepared the next day, shows
that petitioner had owing to him, at the
time he asked for some of his wages, the
sum of $482.00 in undisputed earned wages
after all deductions.)
At this final meeting, although the
master knew the petitioner was scheduled
to be repatriated the following day, he
did not make the loggings and wage for-
feitures with which this suit is concerned.
As shown by his own admission and the face
of the records themselves, he made them at
3:00 p.m. on the day following, after the
seaman had been started for home. Peti-
tioner never heard the entries read, was
never given an opportunity to reply, and
was never provided with copies of them.
Petitioner did not know that following his
departure from Okinawa, almost all of his
wages earned during the voyage had been
forfeited by the master. He learned this
when he asked for his pay in San Francisco
on March 14, 1968, at which time he was
paid off with $64.42 of the $482.96 which
was due him.
The petitioner was discharged from
the Ship's Articles by the U.S. Vice-Consul
in Naha on February 15. The official certi-
ficate shows the reason to be repatriation
for medical care. Petitioner was flown
home at the company's expense and was paid
his unearned wages till the voyage ended
(March 14, 1968).
ai
On his arrival in the United States,
petitioner was hospitalized at the U.S.
Public Health Service Hospital in San
Francisco for a period of nine days. Fol-
lowing this, he was treated as an out-
patient until May 15, 1968. On that date
he was declared fit for duty for the first
time since his accident on December 23,
1967.
After his release from the hospital,
petitioner was charged by the U.S. Coast
Guard with Failure to Join his vessel at
Hong Kong. This charge was based upon an
entry made in the Official Logbook by the
master shortly after the petitioner had
been officiaily discharged from the Articles
by the Consul in Okinawa for medical reasons.
At the hearing, the Examiner ruled that
the series of log entries concerning peti-
tioner were all illegal. They did not
even suggest that he had been injured. The
Examiner called the log entries "one-sided"
and "the kind the statute was intended to
prevent." The charge of Fail to Join,
made by the master, was dismissed. The
shipowner, however, refused all demands
thereafter to return any part of the earned
wages which it had taken from the seaman
on the basis of the master's unilateral
loggings.
* * * *
The suit underlying this petition was
filed on September 18, 1968. The peti-
tioner originally asserted nine separate
claims. These are fleetingly reviewed
here for background.
1. The petitioner claimed damages
resulting from negligence and unseaworthi-
ness of the vessel, and the jury denied
this claim. No appeal was taken from this
verdict. The matter was adjudged.
[a
nite
2. The petitioner claimed damages
for the vessel's failure and refusal to
provide him with necessary medical care.
The jury awarded two thousand dollars on
this claim and no appeal was taken by
either side. The matter is adjudged.
3. The petitioner claimed damages
for the master's malicious instigation of
a U.S. Coast Guard prosecution for Failure
to Join. The jury denied damages and this
verdict was appealed by the seaman. The
Ninth Circuit Court affirmed and that claim
is hereby waived.
4. - 9. The seaman demanded restora-
tion of all illegally withheld wages (all
but $64.42 of his voyage pay was retained
by the shipowner) and the waiting-time
penalty provided in TIT. 46 U.S.C. Section
596. Six separate wage withholdings were
involved. Counsel for the parties stipu-
lated that the wage claims could be dec-
idea by the Court without the jury. All
six of the seaman's claims were denied by
the District Court on the ground that
every withholding was legal. These six
wage claims are the only claims with which
this petition is concerned; all other
claims have been finally adjudged or are
now waived.
THE WAGE CLAIMS AT ISSUE
First Claim: It is undisputed that the
shipowner withheld a portion of the peti-
tioner's wages in Da Nang, Vietnam, for
the specific purpose of recouping money
spent by its agent in providing mainten-
ance ashore for petitioner, a crewmember,
at a time when he was admittedly disabled
from work as a result of his service in
the vessel. No log entry was made con-
cerning this withholding. Petitioner's
counsel was unaware that it had occurred
until shipowner's counsel proved the facts
=;
at the trial. The District Court cate-
gorically declared this withholding to be
legal, and the Appellate Court affirmed
without referring to this claim at all.
Second Claim: It is undisputed that the
shipowner withheld a portion of the peti-
tioner's earned wages for the purpose of
recouping money spent by its Hong Kong
agents in providing maintenance and trans-
portation to the seaman at a time when he
was admittedly disabled from work as a
result of his service in the vessel.
Despite the shipowner's
written admission that this withholding
was illegal, filed with the Court fifteen
months after svit was filed, the trial
judge ruled that this withholding, too,
was legal. The Appellate Court reversed,
agreeing with the parties that the taking
was illegal, but .t found that no penalty
was called for, since the shipowner had
acted "with sufficient cause" in taking
a disabled seaman's wages for costs of his
maintenance and cure and in refusing to
return the wages in the face of repeated
demands, supported by citations of statutes
and case law, for a period of more than
fifteen months.
Third Claim: It is undisputed that the
shipowner is withholding a portion of
petitioner's earned wages for the purpose
of punishing petitioner's conduct for
refusing to sail in the vessel from Hong
Kong.
This forfeiture was based
upon the alleged offense of Fail to Join
(Section 701 Second). The master's log
entry which forfeits these wages states:
"For failing to join vessel in Hong Kong .
.-« - " The Shipping Articles show: "Cause
of Leaving Ship - Fail to Join."
-14-
Petitioner contends he was
compelled to leave the vessel in Hong Kong
to procure needed medical care and that
every act and opinion by professionals
thereafter proved he was justified in
resorting to this ancient right of seamen.
The jury's finding confirmed it as well.
These facts show that the wage forfeiture
imposed for Pail to Join was illegal. In
this contention the petitioner is joined
by the U.S. Coast Guard which ruled after
a formal hearing that this offense had not
occurred, making any wage forfeiture based
upon it illegal.
Section 701 limits the pun-
ishment. which can be inflicted for Fail
to Join to two days' wages. Petitioner
contends this sum is being presently with-
held on a false charge of misconduct.
Fourth Claim: It is undisputed that the
master retained nine days' wages to punish
the seaman for the alleged Failure to Join
described above. Section 701 Second clearly
limits the punishment for that offense to
two days' pay or to the amount spent by
the vessel in hiring a substitute. The
master testified that no substitute was
hired. Therefore, even assuming that the
charged offense occurred, the forfeiture
of nine days' wages was in excess of the
amount allowed, and seven days' wages were
taken and are being retained today without
any justification in law.
Fifth Claim: It is undisputed that the
shipowner is withholding a portion of the
petitioner's earned wages to punish him
for his alleged commission of the offense
described in Section 701 Fourth: "For
willful disobedience to any lawful command
at sea.”
-15-
It is undisputed that the
order that was disobeyed had been given
in port, and by its very nature required
the vessel to be in port for the order to
be applicable. (The disabled seaman,
living ashore in a room provided by the
agent, was ordered to report aboard the
ship every morning to establish that he
“was still alive" in the troubled city of
Da Nang. Such an order would be completely
meaningless with the vessel at sea.)
The conduct cited as "dis-
obedience of a lawful command at sea"
occurred two weeks later in a peaceful
American port, at a time (February 13 and
14, 1968) when the seaman was living in a
hotel awaiting repatriation for medical
care, and the vessel was tied to a dock.
However, the trial judge declared that the
wage forfeiture of “two for one"for dis-
obedience to "a lawful command at sea,"
was legal. The Appellate Court affirmed.
Sixth Claim: It is undisputed that the
shipowner is withholding a portion of
petitioner's earned wages to punish him
for his alleged commission of the offense
described in Section 701 Fifth: "For con-
tinued willful disobedience to lawful
command... at sea."
It is undisputed that the
same in-port order was involved in this
forfeiture as in that above, and that the
conduct cited as disobedience occurred
two weeks later in a peaceful American
port, on the day (February 15, 1968) fol-
lowing the first alleged offense. It is
also undisputed that this second alleged
disobedience for which four days' wages
were taken, occurred on the same day that
the seamen was repatriated by air, early
in the day, for hospitalization in the
-16-
United States. Before his departure that
morning, he had been compelled to spend
time submitting to unneeded shots which
would not have been required if he had been
given his shot records by the master when he
requested them the night before.
The trial judge declared
that the forfeiture of four days’ pay for
this day's "disobedience to a lawful com-
mand at sea” was legal and the Appellate
Court affirmed. The worcs in the statute
restricting the offense to orders and acts
performed at _sea were denied any signifi-
cance. The fact that the seaman's entire
program had been arranged by another agent
of the company was ignored. The fact
that the seaman had forcefully and demon-
strably terminated his employment contract
with the vessel at Hong Kong was not con-
sidered by the courts in weighing the leg-
ality of these punishments for refusing
to obey orders by his former employer.
It is undisputed that all of
the foregoing wage forfeitures were based
upon one block of entries in the Official
Logbook, occupying half a page, which show
on their face that they were all made at
3:00 p.m. on the day the petitioner left
the Far East for home, and that he never
saw them. This fact alone makes them all
illegal. No compliance with Section 702
is suggested. The law is clear that no
illegal log entry will support a forfeiture
of wages, even where the misconduct charged
has been proven.
It is undisputed that the U.
S. Coast Guard Examiner, after a formal
inguiry and hearing, declared that all of
the log entries involved in the forfeitures
were illegal. This Coast Guard ruling was
never appealed by the shipowner. Its res
judicata effect under the Administrative
mi Fnn
Procedures Act,(TIT. 5, U.S.C. Admin.
Proced. Act.) was totally rejected by both
Courts.
REASONS FOR GRANTING THE WRIT
1. The decision below creates a new
legal basis for withholding a seaman's
wages which lies outside the statutes. It
is labeled "stoppage of wages." It dec-
lares that a master can simply stop the
accrual of a seaman's wages as distinguished
from forfeiting them after they are earned.
In the present case when the seaman did not
sail with his vessel from Hong Kong, the
master charged the petitioner in the Offi-
cial Log and on the Shipping Articles with
being a "Fail to Join" and he encouraged
the U.S. Coast Guard to prosecute the sea-
man for that offense. He logged the sea-
man nine days' wages to punish that offense.
Several years later on his deposition, when
he had become a property manager ashore,
and after petitioner's motion for summary
judgment had pointed out the excessiveness
of the penalty for the Fail to Join charge,
the master expounded the new theory of
"stoppage." He declared that the with-
holding of nine days‘ wages as a resuit of
the offense charged was not intended to be
a punishment for the statutory offense
listed in 701 Second-~-which permits taking
only two days’ wag@s---it was merely that he
stopped the wages, hence they were not earned,
hence they were not forfeited, hence the non-
payment of nine days' wages was legal as a
form of discipline outside Section 701.
It is plain that this is merely a
one-for-one forfeiture which is free of the
safeguards established by the law for the
protection of seamen.
This theory asserts that an option
ifn
is presented to the master of treating cer-
tain specific conduct which constitutes a
Section 701 offense as either a statutory
offense or as a non-offense which can result
in a wage loss to the seaman and a windfall
to the employer several times greater than
is permitted if it is treated as a statutory
offense.
Besides being inconsistent with the
established law, the stoppage theory is
refuted by the facts in the present case.
a The ship's Pay Voucher shows that
the seaman's total wages for purposes of
computing income tax and other withholdings
includes the nine days in question, and the
standard deductions from petitioner's pay
for those nine days were taken.
b. If such an option as that asserted
ever existed, the master chose to enforce
the statutory offense at the time and can-
not be heard, years afterward, to say that
he selects the stoppage theory. Nonetheless,
the "stoppage of wages" argument was approved
and applied below, and the shipowner is
being allowed to keep those wages today.
2. The decision below introduces a new
fc pone
rule for determining the question cf "suf-
ficient cause” which reduces to a sham the
entire statutory system which Congress has
created to protect seamen's wages. This
rule requires only that the master assert,
when a wage withholding has been found to
be illegal, that he possessed an honest
belief at the time he made the illegal for-
feiture that he was justified in doing it.
It is hardly realistic to expect
a master to refrain from making an oral
assertion which is incapable of being dis-
proved when it so well serves his employer's
purposes and his own. For practical purposes,
ni@e
this rule abolishes the double-wage penalty
as a deterrent to illegal wage seizures.
In the present a this "honest,
mistaken belief" rule has been applied to
excuse taking a disabled seaman's wages to
provide him with food and quarters ashore,
expenses which would never have been charge-
able against wages, even under the harsh
rules of the general maritime law which
preceded the present statutes.
3. The decision below ignores the
takiny of a disabled seaman's wages to
pay for his own maintenance--and doing so
without any log entry.
The shipowner proved at the trial
that some of the petitioner's wages were
withheld by the master in Da Nang, Vietnam
(before Hong Kong). The master testified
that these were taken by him and forwarded
to the local agent to reimburse the company
for the expenses of providing the peti-
tioner with food and quartersashore. The
petitioner at the time was wearing a cast
and using crutches as the result of an acci-
dent suffered in the vessel. There is abso-
lutely no dispute concerning these facts.
The law is clear that this recoup-
ment was illegal and could never be regarded
as otherwise. The seaman is entitled to
restitution and the double-wage penalty for
this claim as much as for the others. Yet
this claim which was vigorously asserted
by the seaman, is not even commented upon
or referred to in the decision below.
5. The decision below emasculates an
administrative ruling of the U.S. Coast
Guard in respect to a matter which that
agency is specifically empowered by statute
to administer.
Bie
When a master accuses, tries and
punishes a seaman for an offense, he is
not acting without certain personal inter-
ests. For one, his employer profits by
keeping wages forfeited. Two, the master
is unavoidably an adverse party with res-
pect to the charge of misconduct.
When the U.S. Coast Guard later
prosecutes for the same offense, the hear-
ing is one within the fair-play concepts
of “due process." The judgment reached is
certainly more deserving of judicial recog-
nition than the master's personal ukase,
and the law provides that it shall be (Adm.
Proced. Act).
In the present case, the Court
below accorded greater authority to the
master's private acts and conclusions than
to the official decision of a Coast Guard
Examiner following a formal hearing.
5. The decision below approves the
enforcement of five different wage with-
holdings, not one of which rests ona log
entry made in compliance with the statutes.
One of them is not evidenced by any log
entry at all. Four are supported in the
Official Logbook by entries which show
that they were made after the seaman had
been discharged from the Shipping Articles.
It is undisputed that they were not read
to the seaman, that he was not given a copy,
that he was not allowed to reply, and that
he was not even made aware of their exist-
ence. It is also undisputed that the sea-
man presented himself on the vessel the
evening before his discharge and that ample
Opportunity existed for the statutory
requirements to have been complied with.
The logging requirements of Section
702 constitute a vital safeguard for seamen
—_—--
=) Pe
against arbitrary and tyrannical wage for-
feitures. For these requirements to be
totally igpnnrad, Aye .menntnk wehe AAR Cow
fied and demonstrated that he knew them,
was a serious breach of the seaman's rights
which the District Court and Appellate Court
have chosen to disregard.
* * * *
It is possible that the decision below
goes further than any single decision in
the federal reports in converting essential,
living rights of seamen into ink on paper.
There is serious need for this Court to do
again what it did in Isbrandtsen more than
twenty years ago, to clarify and confirm
the law in this important area. There will
always be those who seek to diminish the
rights of seamen and there will, naturally,
be courts that sympathize with their efforts.
It is not surprising, therefore, that
disputes develop under the adversary system.
But when two courts have ruled that the
double-wage penalty can be received only
after a seaman has met the burden of prov-
ing the state of a master's mind while he
was violating the statutes; log entries
are no longer required to comply with the
statute and, in fact, are not required at
all; mere claims of debt can be satisfied
unilaterally by a shipowner out of wages
despite the fact that the statutes do not
allow even a marshal with a court's decree
to levy on them; then it is correct to say
that the Courts below have abrogated the
statutes and restored the general maritime
law--and a fresh declaration of the law by
this Court is urgently needed.
~22=
CONCLUSION
The statutes of 1872, at the time they
were enacted, made seamen a favored class
over the other working members of our soci-
ety. The protection afforded seamen's
wages was equally needed ashore, where
employers engaged in the same practice of
"docking" the wages of employees on various
pretexts. Actually, the abrogation of the
general maritime law and adoption of the
1872 statutes merely conferred upon sea-
men their basic constitutional right to
due process before having their wages taken.
In the century that has passed since,
the terrestrial workers have improved their
condition by collective bargaining prac-
tices and legislation to a point that far
surpasses the seamen's. Citizens of all
walks of life have shared in the new
advances. Recent years have seen the end
of artisan's liens, banker's liens, pre-
judgment attachments, and numerous other
violations of property rights which have
gone uncorrected, often unchallenged, over
the years.
It is a rare crane operator, assembly-
line worker, or truck driver who must sub-
mit~-today--to procedures diminishing his
individual rights to property and freedom
that the seaman routinely, and necessarily,
still accepts.
Yet the view persists that the seaman
enjoys unjustifiably-favorable rights under
the "modern" statutes of 1872. And there
is a strong tendency on the part of many,
including some courts, to regard the stat-
utes as archaic and unwarranted in view of
tne power of maritime unions.
=23<
This view is given expression in the
Court of Appeals decision in Arguelles v.
U.S. Bulk Carriers, 408 F.2d 1065, where
the Chief Judge (dissenting) wrote:
", . « collective bargaining agree-
ments now bar the return of the harsh
practices of the Eighteenth Century.
The collective bargaining agreement
and the maritime union stand as pro-
tection to the seamen, guarding against
overreaching by the employer."
This notion that the seamen's unions
make protective legislation unnecessary is
a dangerous fallacy. The key to under-
standing this is succinctly stated in this
Court's opinion in the same case (Arquelles,
supra):
"Maritime unions, of course, like
other unions, gain “prestige” by
processing grievance claims. (Cita-
tion.) And employer interests are
served "by limiting tie choice of
remedies available to aggrieved
employees" ."
Ordinary observation discloses that
maritime unions “hang the hook" or "close
the port” when issues in dispute affect
the union as an organization. A dispute
over whether or not certain work is "“over-
time" will receive sharp union attention;
a dispute as to whether or not an indivi-
dual was paid in full for overtime claimed
is a lesser issue; and a dispute concerned
with the legality of forfeitures of wages
for misconduct--raising questions concern-
ing individual statutory rights--will often
receive no attention, unless the claimant
enjoys a special relationship with the
officials of the union or, in some cases,
atin
F.N. (a), (b)
pays for the help he needs.
The seaman must still submit to a
variety of prejudgment wage seizures based
upon the unilateral decision of his employer
(who is permitted to keep the money involved).
He must still defend against hearsay which
is admissible in the courts, and which
operates as prima facie evidence against
him, because his absent adversary wrote it
in the Official Logbook.
Petitioner believes that the federal
statutes and the various labor codes in the
several states which govern terrestrial
workers and their employers have no equiva-
lent for these procedures; yet they usually
provide a wage-penalty for failure or neg-
lect to pay earned wages promptly--the very
benefit which so many courts find difficult
to enforce in favor of a seaman whose nomadic
existence makes this right particularly
important to him.
The continued existence and enforce-
ment of the protective statutes are as
vital today as they ever were to protect
seamen as individuals. And the enforce-
ment of the double-wage award is the only
thing that makes the entire remedial scheme
effective. Without it, shipowners can
freely seize wages since the vast majority
F.N.(a). A news item, attached as"Appendix
F" provides a fresh illustration of the
fact that individual seamen's rights which
have no significance for their unions are
frequently slighted.
F.N.(b). It is noteworthy that the amicus
curiae in this petition is not the peti-
tioner's union. That organization stated
that it preferred to handle claims like the
petitioner's “in its own way."
«25<
of abuses will go unchallenged, and in those
rare cases when a successful challenge is
made, if the only requirement, after years
of litigation, is to restore the wages that
were owed at the vessel's payoff, then the
general maritime law, with all its harsh-
ness, will have returned.
Respectfully submitted,
mguaaall
ERIC J. S IDT
528 Mills Tower
220 Bush Street
San Francisco,
California 94104
Telephone: 391-7383
Counsel for Fetitioner
May 24 , 1974
APPENDIX A,
Judgment and Order of the
U.S. District Court for
the Northern District of
California
Findings of Fact and
Conclusions of Law of the
U.S. District Court for
the Northern District of
California
if
”
Lae)
call
rove
4
GEARIN,
($2,900.00) on his claim for the mod
provide
that thee suit be disni:
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HL UNITED SLA PiSfcRicl COURT
NORTHERN DIS LAterT
sed a:
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this ware
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ae UNLTED STATES DISTRICT COURT
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. | NORTHERN DISTRLCT OF CALIFORNIA
10 Hi
t
1 , PATRICK D. GEARIN, )
12 ,
f Plaintiff, ) No. 49993 - SC
13 ; ?
2 Sista FINDINGS OF FACT AND CONCLUSJONS
| WEYERHAEUSER LINE, ) OF LAW
Tn )
' Defendant. )
16 | )
FINDINGS OF FACT
a
~~
FO
1s Be This suit is a seaman's maritime action and was
19
brought pursuant to and under the .’ones Act, 46 U.S.C.§688 and
»
the general maritime law.
21
22 2. At all material times defendant, WEYERHAEUSER
23 LINE, owned and operated the SS C.R.MUSSER, an American
24 merchant vessel. |
25 3. Plaintiff, PATRICK D. GEARIN, was an American
° merchant seaman serving aboard the SS C.R.MUSSER as an ordinary
27 *
seaman.
28
- 4. The plaintiff signed aboard the SS C.R.MUSSER
30 on December 14, 1967. On that same date he was given a
31 physical examination and declared fit for duty.
|
32 5. On December 23, 1967, at approximately 1800 hours,
the plaintiff fell on the SS C.R.MUSSER sustaining an injury
Ps PO | to his right foot. 1
Copaes cuiled to ‘
art
of Rucora Purtior
ee i
hi
1 ’ 6. Upon arrival in Da Nang, Vietnam, on January
to
19, 1968, the plaintiff was put abord the first launch and
: d sent to the Navy hospital in Da Nang for examination and X-rays.
; At this time the vessel was at anchor in Da Nang Bay.
f
; 7. The plaintiff was examined at the Navy hospital
, | and the diagnosis was a "contusion" of the right foot. The
8 ; X-rays revealed no fracture. The plaintiff was declared not
9 fit for duty for two weeks.
10 8. On February 1, 1968, the vessel was moved from
us ; its anchored position offshore to a pier in the port of Da
gs Nang. During the time from January 19 to February 1 the
: plaintiff remained ashore, going back to the vessel only to
15 pick up his money draws.
16 | 9. On February 1, 1968, Captain Wheeler ordered
17 the plaintiff to report aboard the vessel to the Chief Mate
io every duty morning. At the time the order was given, the
19 Tet offensive was under way and there was heavy Viet Cong, and
vf terrorist activity in the area in and around Da Nang. The
: plaintiff disobeyed the order to report aboard while the
3 vessel was in Da Nang and continued to disobey said order on
24 subsequent days.
25 10. On February 3, 1968, the vessel sailed for
26 Hong Kong with the plaintiff aboard. Upon arrival in Hong
” Kong on February 6, 1968, the plaintiff left the vessel on
the first launch to have his foot examined by a Dr. Watson.
~ He left with all of his personal belongings. Dr. Watson
31 found a hairline fracture of the right foot. However,
32 plaintiff never reported these findings to the Captain and
ne | x |
‘447. 12508 - 1608 |
_
|
€$8sbBs8RBRBRE
8 8
1) baneretome
Set? - 2M 38s
never talked to the Captain after leaving the vessel initially.
The plaintiff's medical expert, Dr. Welke, examined the same
X-rays which Dr. Watson took and concluded that there was no
fracture.
ll. While in Hong Kong, Captain Wheeler observed
the plaintiff walking down one of the main thoroughfares with
his cast off and with shoes on both feet. The Captain
concluded that the plaintiff was not seriously injured.
32. The MUSSER left Hong Kong for Naha, Okinawa,
approximately eight hours after arrival on February 6, 1966.
The plaintiff was not aboard the vessel when it sailed from
Hong Kong. A deck log entry noting this fact was made by
the Chief Mate.
43. Plaintiff was flown to Naha, Okinawa, to
mect the ship on February 9, 1968. = The defendant's agent
advanced the cost of transportation.
15. The vessel surrived in Naha on February Te
1968. Nowever, the plaintiff did not report aboard until
the late evening of February 14, 1968. Thus, the plaintiff
was not aboard the vessel from February 6, when he left the
vessel in Hong Kong, through February 14, 2 total of nine
working days
16. On February 14, 1968, when the plaintiff
talked to the Captain, the Captain asked the plaintiff why he
had not reported aboard as ordered and the plaintiff stated
that he “did not fecl like it.” The plaintiff was ordered
to stay aboard the vessel during working hours as he was still!
a member of the ship's crew. The plaintiff failed to tell
Py
|
8
1) SenDeTONE
116-67. 129M~- 1808 |
4
the Captain on the eveniny, of the 14th that arrangements
had already been made to repatriate the plaintiff to the
United States.
a7 3 On February 15, 1968, the Master prepared
certain log entries, two of which were disciplinary fines.
The plaintiff was fined four days' wages for continued refusal
to obey the direct order. In addition, a notation was made
in the official log that $137.40, or nine days' wages, would
be withheld from the plaintif{'s base wages since he had not
been aboard the vessel from February 6 through February 14.
18. After preparing the log entries, the Captain
made an attempt to locate the plaintiff. The Captain went
to the U.S.Consul in Naha where he was ‘o meet the plaintiff.
The plaintiff did not appear and the Captain left the log
entries with the U.S.Consul. It was at this time that the
Captain learned that the plaintiff was being repatriated.
19. The sum of $160.00 for air fare from Hong Kong
to Okinawa and for hotel and living expenses in Hong Kong
was deducted from the plaintiff's wages. |
20. The Court finds that the Captain had sufficient
cause for all of the deductions and withholdings made from
plaintiff's wages.
CONCLUSIONS OF LAW
| This Cou~t has jurisdiction pursuant to and
under the Jones Act and general maritime law.
. 2. The defendant sustained its burden of proof
with reference to the certain deductions and the burden
shifted to plaintiff of proving by a preponderance of the
sie
i>)
=
esxeS SF eeesee
evidence that the waye deductions or withholding, were |
improperty or illegally made. This burden on the part of
the plaintiff has not been met.
3. The $61.07 deduction for refusal to obey a
direct order, and the $61.07 deduction for continued refusal
to obey the direct order, were lawful and properly entered
in the official log.
4. Because he was not aboard the vessel for nine
days from February 6 through February 14, 1968, the plaintiff
was not entitled to wages for those days, and the $137.40
withholding for failure to be aboard the vessel was legally
and properly made.
5. The deduction of $160.00 for living expenses
incurred in Hong Kony, and for air fare from Hong Kong to
Naha, was legally and properly made.
6. Plaintiff is entitled to receive camazes
the amount of $2,000.00 under the Jury's verdict for the
failure and refusal of the defendant to provide plaintiff
with necessary medical care.
Let the judgment be entered accordingly.
Dated: July Zt ,1971. Pid
(7 United States District Judge
oS~
APPENDIX B.
Decision of the U.S. Court
of Appeals for the Ninth
Circuit
DO NOT PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Pariton DP Cevnin, |
Plaintif- Appellant,
vs {
MEMORANDUM
Wesiciseesen Linn, sets si Z
ee rd
No. 71-3026
| January 21, 1974]
Appeal from the United States Distriet Court
_ for the Northern Distriet of California
~.
™ Peace Se
iefore BARNES. WRIGHT, and WALLACK, Cirenit Judges.
Appellant. Patrick Gearin, a seaman. appeals first, from an
wleerse jury verdiet: with respect to his claim for damaces for
walicions prosecution, and second, from the Distziet Court's Pind:
ings of baet ool Conelusions of Law (R. 265) (which settled the
dispute over adjustments of the sesman’s wages by the exptain
ond operation ef the double wage penalty, 46 USC) S596). in
aver of the appellee, Weverhacuser Line. The Jury's verdiet
osarding £2,000 to the appellant. for his elaim of inadequate medi-
cal eare, 1S net at issue on appeal,
Federal jurisdiction is predicated upon 16 U.S.C. &688. A fae-
fil review of the events leading up to this appeal are concisely
wiomarized im the findings of the Distriet Court (Ro 265).
The apyetlant’s contentions are, for the most part, that he dis-
agrees with the triai judge’s evaluation of witness's testimony as
to the waee adjustments, and disagrees with the jury verdict. on
he malicious prosceution issue.
Contrare te appellant's contentions, this ease is purely a “faet
appeal” (Appellant's Reply Brief, po 10), and the standard of
”
4
pi Patrick D. Gearin vs.
review for this Court is governed by the “elearly erroneous” rule.
Fed BCP. 38. Kor this Court to reverse the trial court, we
woud fined that the trial court's findings were elearly: erroneous.
Ssstated be the Supreme Court in Vaited States ve. Oregon State
Wodicu! Sutely, 3V5 US. 426,
“There is ne ease Inere appropriate for adher nee to this
rule than one in whieh the complaining party erestes a vast
recent of cumulative evidence as to long past transactions,
wotives, amd purposes, the effect of whieh depends largely
on eredibility: of witnesses.”
“A finding is ‘eleardly erroneous’ when although there is
evidenes te support it, the reviewing court on the entire
evidenee is deft with the definite and firm consietion that a
nistake bes been committed. United States vo United States
Gispsim Coe. 355 1S. a6, 5. SHS EFS. sat 255
Vpon reading the record on appeal, the varions deposit terns and
exhibits referred to by appellant and appellee in their briefs,
we cannot conclude with any convietion that any reversible error
has been eommitied by the trial court or jury. Appellant's elaims
on appeal de not compel us te find that the “elearls erroneous”
stumdard has been met, and we affirm the trial court's findings,
except in one particular hereinafter mentioned.
i. PACTS
The principal faets are briefly desevibed in the marin.’
The plaintit was 37 sears old and G6" tall when he went to sea.
Three dass ont of Portland, he slipped on a stairway on the ship, hurt
his toot, and was put in the ship's hospital for one day and then was
pat back in his quarters, given some Epsom salts for soaking his foot
and oa heatue: pad. The captain came to see him promptly, gave him
some codeine for the pain, but did net give Gearin as mach as he wanted.
M that point, Gearin argued with the captain and developed an intense
dislike for bim. (RUT. 62). Gearin hav been a troublemaker, Two days
before the aeerlent, at 3:00 in the morning, he had been driuk and
geakened others. The vovace to DaNang took two weeks or more and
Gearin performed no duties aboard. He went ashere at DaNane but had
tes prerinensiety fer stay there. There was nothing to present his staying
sheard ship. but he sat on the beach and dnwuk beer and visited aboard
other ships. (RUT. 66). When his own ship came to the pier, he went
aboard for the first time in five days and then only to draw some moncy.
Weycrhacuser Line 3
MW. WAGE ADIT STMENTS
The trial court found that Captain Wheeler's wace adjustments
were legally and properly made. namele: 1) A $61.07 deduction
for refiral to obey a dircet. order (16 USC. $701, {h), and a
POLOT deduction for continued refusal to obey the dircet order
(46 US STON, 85). (2) a SISTAO withholding of wages that
the seaman was not entitled te for not being aboard the vessel
for nine dass from February 6 throwsh Februare Th 1968) (46
PS. 3701, 85); and (3) a deduetion of #16000) for living
expenses and air fare, This sui wes paid appellant, and is not
in dispute, Appellant asks for restoration of wages whieh he
cats were illegally withheld, together with wages from Mareh
1h, 1968 te dite: and that this Court invoke the double wage
penalty (46 U.S.C. $596) to the tune of $58,327.70.
As te the Weaal withholding claim. appellant argues that the
ease of Isbrandtsen v. Johnson, 343 US. 779 (1952) stands for
the preposition that no wages may be withheld for any contrset
obligations not listed in the statutes. We agree that the Supreme
Court in dsbrandtsen concluded that only sueh deduetions and
set offs can be made against the wages of a seaman as are reeog
nized specifically by statute:-—sueh as the fines and forfeiture
listed in IOUS. S701, when the deductions are for disciplinary
The captain told him to report aboard! daily. He had been drinking beer
but said he was not drank, He was quite mad at the eaptain. (R-T. 68),
He lett the ship at Home Kong, net intending to return, but did not
tell that te the eaptain. The ship left withont him. (RLT, 71),
The local avent for the vessel bought him a ticket from Mong Kone to
Naha in Okinawa where he arrived ahead of the ship. Me stayed ina
hoiel there at the expense of the ship owner, drinking. His foot was
vraved but ne troetures were discovered, but he thought the doctor
should have dene more for him. (RT. 74).
He did not report aboard si’p. although he was still a erew member.
He was ashore in a hotel for theee or four days. Finally, he went ont to
eet more money. The captain asked why he did net report aboard, and
Gearm said he just did not feel like it. (LT. 79). The eaptain told him
fo repert to the ship the following day. He did net and instead he flew
home to San Franeiseo. (R.T. 91).
He reported into the Publie Health Hospital in San Dranciseo, was
treated for a few days, was told to return, and did not. In a couple of
weeks he was engaged in a fight with another seaman and broke two
nbs. The nest month he was hit in the nose with a glass thrown by a
girl in a bar (RT. 97-98).
H Patrick D. Gearin vs.
purposes, “Only such deductions and set offs for dereliction in
the parformance of his duties shall be allowed auaimst his wages
as are reeosnized in the statnte.” 343 COS. at GST. + Barphasis
whded) However, other deduetions not expressly provided for in
Tare aleve alewed, such as Federal income tas. social security,
lope eemts debits and money advanced.
Hewe, the tuo $60.07 deductions are covernd I statute, 46
fet hy TON, OE sepa S, aed the evtdenee discleasdl that the
eA disele ved the order siven dy the esptein om Belwusey 1
by failing fo report on Kebroars 0 aud Dh for whieh) the Cap.
tain Was justified woder the statute to clealuet four dacs par;
ated for contioned wilful disobedience to a lawful command on
Pebruary 15, dedneting another four dass pay
The trial eonet fosnel that the <coman was not abecrd the vessel
(Pindines 12. 5. 17, Conclusions No. 4). and did not earn wages
Auving nine devs The court did not use the words “feilere tea
win as I IG ES STOR Np Mot eorreet=y contends that if
htt Ved tet Peet Teen fond eoitte of failure te jet in tts
Satutery some, amd af the forfeiture tad Ween imposed tn the
mcstnner pores tlerd bee dae, ony twee cies paw could thiwe properte
Seog eleedtpetecd aril) dd 4 a the worn did toot finned the secrecy
eilte af flare to jetn. simody that the warns were wot sarned
ha the seanen, Reading the Wheeler deposition (Vol Top. 4),
Coptaio Wheeler's intent as to his deduction for the nine dave
wires et tlenthy satistiod the trial court's Welie? that such deduce
ten woe tet for the statutory offense of failure to tein amd we
fel methine in apy det’s arene nt eousing us te bebd sneha
finline Dey the lower court “elearly erroneous’. (Wheeler Dep
Vol Wi pm 110009),
The £1600 delneted from CGeartn’s wages for air fare from
ese Weer for Obie ood for hotel and livin expenses in
Hone Nene is one deduction made by Captain Wheeler, in whieh
we must disseree with the trial eourt’s finding (Conelusion 5),
of deast as te the legalite of withholding the $1600 Towever, this
is of ne Od Le for it is uneontradieted sipopwe T Dconet later was
paid this aneunt 2 MW Norris, Law of Seaman, Vol WV S565 at
87 (3d ed 1970).
ee ee eee ee
“See Appellant's Urief, p. 68, Note 25.
ee ae
Weyrrhaciuser Line ~ 5
We turn to whether the iegality of the withholding requires
the donble wage penalty to be applied. The provision of the
double wage penalty states:
“Every owner or master who refuses or neglects to make
payment... without sufficient cause Shall pay to the seaman
astm equal te 2 days pay for cach and every day during
Which payment is delayed..." (Biiphiaasis added.)
Thus. te invoke the double wage penaliv, we most find that Cap-
tain Wheeler did) not have “sufficient eause™ to withhold the
mvinent. In The Thomas Tracy, 24 F.2d 872, 874 (2b Cir. 1328).
Was Stated:
“2. aithoweh it may ultimately be determined that there
isne wetual legal defense to the elaim for wages, nevertheless,
Wo othe owner or master had) sufficient enuse to withheld the
weees when demanded, beyond the time mentioned in the
Statute, UW orelieves the vessel of the Imposition of the
penalties.”
The camtain’s failure fo pay amounts withheld must. by: Shown toa
fe “erbitrors. wilful or unreasonable” WeCrea ov. United Stet, %,
8 TS. 25, Fd CN AE the Captoin’s withholdines can he
wstihed on his goad faith and reasonable belief, sufficient: cause
en be foumd Cf, Collie vr Frrquson, 881 US. 52. 56 (1950),
We age with appellee that Captain Wheeler's testimony wis
Iniousty believed hy the trial judee in finding that the eaptain
Vosufficient ease for all ef the deductions and Withholdines
ode from Gearin’s wages (Findins 20). and appellant's areu-
it has net produced anethiny iedieating that Captain Wheeler's
te of mind was “arbitrary, wilful or unreasonable.” Thus. the
main was justified and elearky: established “sufficient cause’ to
York application of the double wage penalty, as was found by tlie
rin] eort
WE MALICIOUS PROSECUTION
Appellant claims that the jury verdiet on the question of mali-
"iS Prosecution was improper and arenes the elements for
Hicious prosecution were met. (Appellant's Brief, pp. 33-38).
Javever, appellant's eontentions, to a ereat desres, are unsup-
med by the record, and faets are slanted by appellant to sup-
Wous 7
6 Patrick D. Garin vs.
pert his arsoment. Upon readine the reeord, we fail to find
ony substantial evidence that would require us to overturn the
jury verdict.
IW APPELLANT'S CONTENTION THAT THE
COURT ERRED ix ITS FINDINGS
Ones cersin relying on his imMerpretation of the faets as against
the trial puedes ‘y findings, appellant attaedes with particularity
Findings 6, 7, 9, 10, 18, 12, 15, 16, 1S, 20, and Conelusions 2, 3,
homed oon varions faetusl points. Mest of his contentions have
little merit. and are aptly refuted by appellee in its brief.
Appellant's contentions fail te cOnvines 8, pen our reviewing
the entire record, that the trial court made a mistake in its find-
ings, with one exeeption hereinafter diseussed.
Appellant's infereness of bias of the trial judee (Appellant's
viel, pp. 50, G5) are unfounded, and completely unealled for.
In certain instances, appellant edits the record, taking a partieular
Passage out of contest?
App ltint is correct that the trial court mistakes nly termed Dr.
Welhe. the “plaintifis” medical expert, in Finding 10 (Tr, pp.
VON-4G5). Dut such a mistake ean hardy be termed prejudicial,
since the jury verdict preeeded the trial court's filings,
Minelines 108 is dispiites) heeansc: of an alleged variation in Cap-
tain Whe bors heeription of ebsersine the plaintiff walking with
hiss est 600, cette) SPyeress om beth feet Howevs rr. the Variation is
only miner as te ihe Captain's position at the moment of siehtine
Nye Scere. Meth rinere, Captain Wheelers deterition edeoes not
For example, as te Findine 9 that the seaman disobeved the order to
report aboard the vessel in Da Nanz, appellant contends that the finding
rmored the question: “Can a crippled erewmember levally be required
to report aboard ship daily at the tisk of his life for no purpese other
than te vratity the ship master’s exe (Appellant's Brief, p. 51). MMe
ites incompletely From Captain Wheeler's deposition te Support this
Mlammatory contention. (See Appellees Brief, p- 10 for a more’ eom-
plete quotation.) :
*Findine WW reads:
“V. Whiie in Monehene, Captain Wheeler olserved the plaintiff
walkin down or of the main therenchfares with his cast off and
With shoes on beth feet. The Captain coneluded the plaintil’ was
hot seriously injured.”
Weyerhacuser Line 7
Support appellant's allegation that the captain admitted one of
the shoes was a native straw device. As appellee correctly states,
“The only mestion by the captain of any shoe worn on the sea-
man’s right foot is a deseripiion of a ‘short boot . . . with it
reverse cast on it.” (Wheeler's deposition, Vol. 1, p. 34). Also,
Finding Wl was relevant to the issue of sufficient cause as to
the wage adjustments, and not invelevant, as appellant eontends.
Appellant urges error with reeard to costs: with the eourt’s
refusal to allow the appellant's attempt to testify to state the
law; and finally, that the eourt abused its diseretion in excluding
records of the Coast Guard Examiner and testimony regarding
the ganeway accident.
The issue of costs is within the diseretion of the trial court.
Homestead Minirg Co. v. Mid-Continent Esploration Co., 98?
F.2d 787, SOb ClOth Cir. 1960); K-S- Plastic, Ine. v. Curolite,
fne., 40S F.2d St (Oth Cir. M69). There was no abuse of dis.
eretion in the trial judee’s refusal to allow in evidenee the sea-
man’s conclusion as to what the law was.
The Coast Guard proceedings were properly exeluded by the
trial judee, since hearsay objections were inherent. Appellant,
on the autority of O'hon vr. Roland, 47 F Supp. 743° (S.).
NYO, argues that records of Coss Guard hearings have always
been admitted in Distriet Court Proce: dings (Appellant's Brief,
p19). But O'KRon is casily distinenished as it concerned the
Scope permitted toa Distriet Court in res iewing on appeal Coast
(nar findines, whereas here the Distriet Court sat as a eourt
of original jurisdiction. As to. the lestimeny regarding the «ane.
way accident, the eourt ruled such testimony lacked relevanee in
this trial, We agree.
V. CONCLUSION
In summary, we hold that the “elearly erroneous” proof stand.
ard as applied to appellant's contentions have not been met by
him, and we affirm all the trial court's findings, amd conclusions,
except that we reverse all of Conclusion of Law 2. While it: first
states: “The defendant sustained its burden of proof with refer.
enee to certain deductions,” the words “certain deductions” do ret
tell us, or the litigants, whether the burden of proof of al dedue-
tions Was sustained by the defendant.
acrge
s Patrick D. Gearin vs.
Ner can we aeree with the hbatanee of Conelusion of Law 2,
“ amd the burden shifted te plamtif of proving by the
prepotmlersnece Of the evidence thatithe wage deductions or
Withhellings were improperly or Wlepally made. This burden
om the part of the plaintie leno been met.”
“%
While tt teav have been the atent of the eonelusion to state
that “the Paden of poinge forward shifted to the plamtitt.’ the
burden of proof cid not, Payne vo SS. Tropte Breeze, 274 F.
Supp. 32) (DPR. 1967); Butler ve United States War Shipping
Administration, OS FoSupp. 441 (6D. Pa. 1946); Carson v. Gulf
Ov, 16S AME 1030
We alee stroke from the Findings of Faet, Nom-19, and from
the Conclusions of Law, No. 5? each as moot.
We remand to the Distriet Court for the making of a new
filing ot the bearden of proof; either with or without the taking
of ahditional evidlenee and/or a hearing.
(Otherwise, the judgments are affirmed in all particulars. Kach
side is te bear its respective costs.
PERN AT WALSH PRINTING CO., SAN FUANCISCO 1-25-74—480
APPENDIX C,
New Finding on Burden of
Proof on Remand
oe xu elUrtlmlmlC OlmUC OULU
—
—)
1
2 8
Ss sere sReBRL
s =
ORIGINAL
FILED
FEB 8~ 1974
RK, U. S. CST. COURT
ss SAN FRANCISCO i
UNITED STATES DISTRICT COURT |
r
NORTHERN DISTRICT OF CALIFORNIA
PATRICK D. GEARIN,
Plaintiff,
No. 49993 - SC
-VsS-
WEYERHAEUSER LINE,
- Defendant.
ee Ne et eet eet eet eet et ee
| defendant sustained its burden of proof with reference to ( )
‘certain deductions." The language of this court included
Pi -Bendswo~
+3-72- 100-9401 |
This case is remanded ie the making of a new finding
on the burden of proof.
The Ninth Circuit has indicated that this court's
Conclusion of Law 2 has left some uncertainty as to whecher
defendant had sustained his burden of proof as to all deductions
as issue. With due respect to the Appellate Court, this covrt
finds no such uncertainty in the wording of Conclusion of Law 7.
Unfortunately, that conclusion of law, as misquoted by the
Ninth Circuit, is indeed ambiguous; as written, the meaning is
*
clear. Conclusion cf Law 2 was quoted as stating: "T-
‘
'
'
|
j
",.+++-the certain deductions", which undoubtedly refers to all
-l-
—
oes: eaen8 82 8 W
i SEBRBRRRRRBBEBBEESS
—= 2.6
eee
deductions at issue.
However, to clarity further, this court re-writes
Conclusion of Law 2 as follows:
2. The defencant sustained its burden )
of proof in clearly establishing ‘|
that sufficient cause existed for
all deductions and withnoldings.
The point that ambiguity exists in this court's previous
Conclusion of Law 2 with reference to a shift of byrden, is
' well taken. It was nowhere intended that the burden of
persuasion shift to plainciff. Defendant has properly carried
throughout and has satisfied that burden. Conclusion of Law
2 shall, therefore, be entered as written above.
Dated: January AS » 1974.
Unitec —— Judge
a
APPENDIX D.
Petition for Rehearing
NO. 71-3026
IN THI
UNITED STATFS COURT OF APPEALS
FOR THE NINTH CIRCUIT
2ATRICK D. GEARIN,
Piaintiff and Appellant,
vs.
WEYERHAEUSER LINES,
Defendant and Appellee.
eee was we ae ae wer ewe
On Appeal From the United States
District Court For the Northern
District of California
APPELLANT'S PETITION FOR REHEARING
Eric J. Scnmidt
528 Mills Tower
220 Bush Street
San Francisco, CA 94104
Telephone: (415) 391-7383
Attorney for Plaintiff
and Apellant
TOPICAL INDEX
IT. The DaNana Withholdina
TI. The Hong Kong - Okinawa Withholdina
III. Unanswered Questions of Law
AUTHORITIES
Cases
Gerber v. Spenser, 278 F.866 ......
isbrandtsen v. Johnson, 72 S.Ct. 1011 ..
STATUTES
wits 20, UiS.C., SOC. S96. s 1 s a
Beet. S00 1. sss sees
meets GOL 1s 2 & 8 et
SOtt,. SUL 2 4 « & &
ReCt. Tun 6 +s 6 s & «
Shipping Commissioner's Act of 1872 ...
re
NNITED STATES COURT OF APPEALS
FOR THi NINTH DISTRICT
PATRICK D. GEARTIN,
Plaintiff and Arpellant,
vs.
WEYERHAEUSER LINIS,
Defendant and Aprellee
a de ne
Ci Appeal From the tnited States
District Court for the Northern
District of California
APPELLANT'S PETITION FOR REHEARING
POINTS OF LAW AND FACT WHICH PETITIONFR
BELIEVES THE COURT OVERLOOKED OR MISAPPREHENDED
None of the Facts in the Wage Claims are Disputed
The Court states:
“The anpellant's contentions are, for the most
part, that he disagrees with the trial judce'’s
evaluation of witnesses’ testimony as to the
wage adjustment . . ." (fmphasis added.)
"This case is purely a ‘fact appeal’ .. ."
Appellant feels that even a cursory review of tne
record will show that: 1) none of the facts essential to the
wage issues are in dispute: ?) the only questions resented are
those of law: 3) the clearly erroneous rule regarding fact issues
has no anplication to the wage claims in this case.
46 U.S.C.A., Sects. 660, 601, 692: Isbrandtsen v. Johnson, 72 S.
T
The DaNang Withholding
Arnellant's
Facts: Proven By Position
1. Earned waaes were withheld Shivowner Affirms the fact
by the master at the time it trial
of a waa@e advance to the H
scaman in DaNanc. F.N. ;
|
2. The vurvose for withholding Shipowne: Affirms the Fact |
said wages was to renay the at trial
shipowner for money it haa
spent for the seaman s
hotel in that port.
The above facts suffice, by themselves, to show whether
or not an illeqal seizure of wages occurred.
Was the admitted vurnose for the withholding one of
those nermitted by Congress?
Allotment No
Wace advance No
Slop chest No
Fines under Section 791 No
$ Penalties (Sects. 659, 665, 727) No
Tax deductions No
Was any log entry made concerning this wace takina? No.
Only one conclusion is possible under the law: the wage
withholding violated the statutes and the settled case law. Tit.
Ct. 1011, 343 U.S. 4/9. Section 692 appears to have been intended
by Congress as a “back-up” law to prevent loor-hole treatzcnt of
the other sections.
F.N. The amount is not relevant on the issue of liability for
the Section 596 penalty.
Yet the trial court d@creed that withnolding of those
wages ‘vas legal and this Court has affirmed that decision.
The shipowner has never been asked by either court t:
justify this withholdina on any cround other than that it was
legal.
The separate aguestion of whether cr net the asserted debt
was a valid one, enforceable acainst the seaman, cannot he decided
unilaterally by the shirowner--but must be determined by an
impartial court. A seaman 1s as much entitled to due nwrocess
before being deprived of his proverty as is any other citizen.
The enactment of the Shipping Commissioners Act of June, 1872
restored this basic right to seamen after vears of denial under
the harsh rules of the ceneral maritime law. Under the statutes
compr‘sing that Act, no taking of wages to satisfy any claim 0;
debt asserted by the shipowner is permitted, even where the sea-
man agrees to it. Sect. 600. The mere coincidence that the shin-!
owner has possession of the seaman's wages does not create any
rights in the shipowner superior to other creditors of the seaman.
At a later due-process hearing on the shinowner's claim,
to be initiated by the shipowner after all waces have been paid
in accordance with law (Sect. 596), the undisputed facts will
show that the seaman was a physically disabled member of the
ship's crew, wearing a cast, at the time the hotel bill accrued.
At said hearing it will become verfectly clear that
providing the disabled plaintiff with the hotel room was a part
of the shipowner's duty of providing maintenance and cure which
=-3-
vessels have owed fuer centuries to members of their crews who
fali sick or become disabled while in the service of the vessel.
That the seaman was disabled is undisputed. That the seaman was
in the service of the vessel when he became injured has never
been, and cannot be, challenged. He fell on a ladder while the
ship was in heavy weather on the hich seas.
But even were tne due-process hearing to result ina
finding that the seaman owed the money claimed
, the resuitina
judaqment could not be enforced against his earned wages: (Sect.
601.)
There is no possible way under the law that the taxina
of wages which was cffected in DaNana, the occurrence of which,
and purpose of which, were proven by bhe shipowner and undisputed
by the seaman, can be legal. And the ecnforcement against wages
of a "private judgment" of the maste:'s was a further vio’ation
of law, an act in excess of any vower possessed by the courts,
There is no question here concerning any @disacreement
“with the trial judge's evaluation of witnesses’ testimony” or
“credibility of witnesses." The testimony of the master, and the
records made by the defendant confirming both the occurrence and
purpose of the wage-taking are Geclared by the seaman to be true
and accurate.
The sole point of contention concerns the law which
governs these undisputed facts. The appellant claims that an
error of law was made below, and that this error hes not yet been
corrected in this Court.
To correct the error below, there is no nee? for this
Court to find the trial court's findinas erroneous in any respect
where they are concerned with facts.
Appellant believes that the lanauace in this Court's
present decision, quoted below, 1s not applicable.
“There is no case more appropriate for adherence
to this rule than one in which the comnmlainina
narty creates a vast record of cumulative evidence
as to long past transactions, motives, and purposes,
the effect of which depends larcely on credibility
of witnesses."
This comment has no anplication where no dispute exists
concerning a single matcrial fact and that is the situation with
respect to all cf the waae claims presented by this case.
TT
Honi Kong - Okinawa Withholding
Appellant's
Facts: Proven by Position
l. Earned waces in whe amount Shirowner or Affirms the fact
of $160.90 were withheld master's wane
at the time the seaman was voucher
paid off in San Francisc>»
2. The purpose for the with- Shirowner or Affirms the fact
holding was to repay the master wane
shipowner for money it had voucher:
spent for the seaman's
lodgings, food and trans-
portation between Hona Kona .
and Okinawa
Approximately ciaht months after suit had heen filed,
the shipowner admitted the illegality of this wage withholdine and
paid the sum involved to the seaman ($169.99).
At the time it paid, although it admitted the illeaality
of its conduct, the shinowner refused to nay any nart of the
-S-
penalty which had accrued durina the waiting period.
The Court below, despite the defendant's admission, held
that the withholding was leqal and for that reason no nenalty was
vwed. This Court has reversed, declaring the withhoidina to he
illeqal, but has affirmed the lower court's findina that no nenalty
is owing. Since the lower court's only ground for denying the
penalty-legality-has been invalidated, there was and is no existing
around for this Court to affirm.
Under the rule laid down in Gerber v. Spencer, 278 F.866
(D.C., Cal., 1922) the refusal te pay accumulated penalties con-
stitutes. a refusal to pay the full amount owina (the penalties have
been specifically declared by the courts to be wages)--and the
penalty continues to accrue after the net wages have been paid.
This rule has been followed in other circuits (Appellant's Brief,
p. 66.)
Under this rule, the vrenalties for this second with-
holding continued to accrue until the District Court's decision
stopped them.
No dispute of fact oxists with respect to this wage
withholding. The sole point of contention concerns the law which
governs the undisputed facts. The appellant respvectfully uraes
that there cannot be sufficient cause for withholding wages for a |
purpose which has never been legal and which clearly violates one
of a seaman's most ancient and basic rights: the right to main-
tenance and cure when he is injured abroad.
If a shipowner is permitted by the courts to flagrantly
a
violate the most ancient and settled rights of seamen without
fear of a penalty, if ali that is reguired from the violator is
that he pay only the wages which should have been paid years
earlier--before suit was filed--then the seaman's statutory
rights are truly nothing but ink on naper! When the enforcement
of rights results in mo financial loss to the employer, the stat-
utes preservina those rights are not aoing to he enforced--and
the purpose for their existence miaht just as well be forgotten.
TIT
The Present Decision Leaves Unanswered
Important Qucstions of Law
A. When a seaman's waacs are forfeited by a master
acting under the authority of Sect. 701 (i.e., the wages are per-
manently diverted to the shipowner's use on the basis of nothina
but the master’s unilateral decision) and at a later, formal hear-
ing before a U.S. Coast Guard Examiner it is officially determined
that the forfeiture of wages was illeagal--is not the seaman
entitled to the immediate restoration of the waces in question?
Can the shipowner totally ignore the entire administrative procedure
and refuse the seaman's demand to be given back his waqes?
That is exactly what has happened in this case. The
U.S. Coast Guard found that the charges of misconduct with which
the plaintiff was charged in the Official Log were not proved and
that all of the log entries on which all of the forfeitures were
grounded were illegal. Yet the shipowner retains today all of the
wages taken from the seaman under the color of Sect. 701, for
"offenses" unilaterally declared by its private employee to have
a Pa
s
been committed, but declared by the Ccast Cuard's judicial officer
after an impartial hearing, not to have been committed. The
master’s ruling is given priority over the Coast Guard's. At the
same time the master in this case, who apparently is familiar with
the confiscatory provisions of th> statutes but not the protective
provisions, seeks the tolerance and forgiveness of the courts for
his “good-faith” ignorance of a basic seaman's right which, since
the beginning of recorded maritime law, has forbidden a master from
taking an injured seaman's wages to defray the costs of maintaining’
and curing him.
A question that deserves an answer from this Court is
this: how much ignorance of the law can be excused in a ship's
master who is exercising and aprlyina the punitive portions of the
statutes and ignoring the protective aspects? Another fair
question in this case is: how well settled must the law be before
a master will be required to know it or subject his employer to
H
the penalty for its violation? The law acainst enforcing even
court judgments against seamen's wages has been in effect since
1872. The law against a naster takina a seaman's wacaes to pay for
his maintenance and cure aas been a part of the maritime codes
since 600 A.D. (Rhodian Laws); it was old in the lith century
(Rules of Oleron) and was ancient in the 16th century (Laws of
Wisbuy, Laws of the Hansa Towns).
B. Is a seaman without power to terminate his employ-
ment contract with the vessel? |
The appellant believes that the constitutional prohibition
mG
against involuntary servitude ensures that all U.S. citizens |
possess the power to terminate an employee relationship at will.
If a seaman who terminates his employment relationship breaks his
contract in the process, or violates a statute prohibiting deser-
tion, that fact may or may not result in liability of some kind,
but it would seem clear that nothing can prevent the termination
eof his employment if he wills it.
The seaman in this case determined to terninate his
employment in Hong Kong. Incidentally, he claims he had the right |
to do so, as well as the power, but that is not the qvesticn at
the moment. The question is: did he remain subject, after his
demonstrated renunciation of the employment contract, to the com-
mands of the vessel's master?
Did he continue to be subject to punishment for failure
to perform the duties of an employee?
|
Even if we ignore for the moment the fact that he was
!
indisputedly disabled from all work--and that he had placed himself
in the custody and care of the company's agent--isn't it a nec-
essary legal conclusion that he could terminate his employment
|
the vessel after he quit it in Hong Kong? If he was not an employer
and that he clearly did so, that he was no longer an employee of
in Okinawa, all fines for refusal to carry out the master's orders
were totally improper. A clear ruling on the seaman's status after
he quit his vessel in Hong Kong is both desirable am necessary
to the decision of the issues. |
Other questions need to be answered concerning the
-9-
-> wo ©
forfeiture of wages fo’ disobedience of a direct order.
The order underlying the charged offense was for the
seaman to report aboard the ship every day.
The order was given in the port of DaNanc. (Undisruted.,
The order is alleaed to have been disobeyed in the port
of Okinawa. (Undisputed.)
The particular offense alleqed to have been committed
is the "disobedience of a lawful command at sea,” Sect. 701
(Fourth and Fifth).
QUESTION: Is an order which is given in a port,,to be
performed in a port, the same as an order given at sea for pur-
poses of this statute? It is obvious that unless this GCourt
answers this question affirmatively, there was no violation by the
seaman of Sect. 701 (Fourth and Fifth) and the fines takina a
large amount of earned wages at a punitive rate were illeacally
imposed.
The shipowner here claims the right to effect a with-
holding of wages which is not provided for by statute. This is
simply to “stop” them.
The irrefutable fact established by the shipowner's own
records, is that the seaman's wages were not stopped. (Aprellant's
Closing Brief, p. 7).
But the notion that nine days’ pay can be withheld for
some offense not specifically listed in Sect. 701 is not valid.
Isbandtsen. "Stopping" wages is merely a euphemism for forfeiting
wages. In the present case the shipowner took back the nine days’
site
wages, but left the scaman with the income tax and other deductions
on the wages. Wages not paid cannct be taxed. The decision in
this case should clearly approve or reject the "stoppage" claim of
right.
CONCLUSION
The most important aspect of the entire Conaressional
plan to extend protection to seamen's wages is the provision for
the waitina-time penalty under Sect, 596. No fact is more obvious
than this: unless the penalty is applied where illegal conduct is
proven, there is no risk to 4. ter wrongdoers; and there is no
practical way for the seaman to see the help cf the courts.
If a seaman who finds himself victimized by a shipowner
goes into the courts to enforce his statutory rights--anc wins--
but gets only the wages that had been illegally kept from him,
then he loses! Only the award of the double-wace penalty permits
the wage statutes to have meaninaful existence. And after a few
years of court retusals to award penalties, the seaman will find
it impossible to procure assistance of counsel to seek his remecy
for him. This appears to be the answer to why wace awards which
are not tied to perscnal injury claims are practically unheard of
on the Pacific Coast.
If the courts meet a clear violation of the wage statutes
with the prescribed penalty, the seaman will be able to seek his
remedy and the laws will serve their purpose.
If the courts take the view that proving the illegal
nature of the taking is merely a vrreliminary requirement to beina
=i ha
allowed to proceed to the serious proof that the taking was
willful, malicious, outrageous and an act that shocks the com-
munity, seamen will almost never prevail against captains.
The burden is not on the seaman to prove malice and
unconscionable conduct. He cannot hone to do this. The burden
is on the shipowner to justify its takinc of the wages. If a mere
declaration of a good-faith belief that the law was something else
is going to be accepted as sufficient cause, the penalty provision
is devoid of value.
The seaman has no official loas to vut forward to snow
the master is a “trouble maker.” fie totally lacks the crestige
and the polish cf the adversary. If the seaman drinxs, that fact
is usually magnified to blacken him, even though his @rinkins 1s
not an issue and cven though the master, as here, carried his own
liquor stocks with him and it may reasonably be presumed that the
various consular, Coast Guard and company representatives also
drank.
In the present decision, instances of the seaman's con-
duct are recited in the footnote facts to cover barroom incidents
which occurred several months after he had been discharaed from
the hospital in San Francisco, and long after the last incident
which had the slightest relevancy to his waac riahts had been com-
pleted The appellant's drinking is referred to repeatedly by
both courts, but his drinking was never an issuc. Even a drunkard
(which appellant was not) is entitled to the full protection of
the wage statutes.
=i2=
~
11
o wonoaoew *-» Ww
—
oO
Appellant respectfully petitions this Court for
rehearing in the light of the explanation provided above.
DATED: February 4, 1974.
Respectfully submitted,
ERTC J. SCHMIDT
Counsel for Appellant
me
APPENDIX E.
Order Denying Petition for
Rehearing
¥PI-Bendstone
2-18-75 -7504-0006
FILED
IN THE UNITED STATES COURT OF ABREALB (974
FOR THE NINTH CIRCUIT CLERK
= APPEALS
PATRICK D. GEARIN, )
)
Plaintiff-Appellant, )
)
v. ) No. 71-3026
)
WEYERHAEUSER LINE, ) ORDER DENYING
‘ PETITION FOR REHEARING
Defendant-Appellee. )
ss
= Fg AOVY?- ~ oO \
\
ee
Before: BARNES, WRIGHT and WALLACE, Circuit Judges.
This court's memorandum, filed on January 21, 1974,
remanded the cause to the District Court for the limited
! purpose of clarifying portions of that court's findings and
conclusions. By its order of January 25, 1974, that court
| has accomplished what was requested. its Conclusion of Law
No. 2 has been rewritten and entered and the District Court
has correctly stated that the defendant had the burden of
proof and sustained that burden.
The appellant's Petition for Rehearing has been
considered, and is denied.
APPENDIX F.
Illustrative News Item
Appendix F
(Tllustrative of Footnote (a) p. 24)
Timely notice means
cash to seamen
By HW. W. Kusserow
U.S. seamen around the
world are hailing Don L. Ro-
tan as an off-season Santa
Claus.
Rotan is the slightly ro-
¢, tund editor of ‘Stewards
News,” the publication of
the Marine Cooks & Stew-
ards Union here.
Like other maritime
unions, the MCS recently re-
ceived a list of the names of
seafaring union members
who had back pay coming
for service on merchant
ships during the height of
the Vietnam sealift from
1965 to ‘69.
Nearly $300,000 held by the
U.S. Treasury was waiting
to be claimed, the govern-
ment said.
Of the eight unions receiv-
ing the information, only Ro-
tan and the MCS did some-
thing concrete about it. Don
L.. began printing the list of
names, with a code for the
companies involved, social
security numbers and
amount due.
It will take him nntil the
May @ issue of stewards
News to run the entire list of
some 5300 names — some
duplicated because of serv-
ices on more than one ship.
But his effort already has
| Along the waterfront
paid off handsomely for
many of the men — perhaps
up to 1000 who have any-
where from $1 to $1000 com-
ing.
“One retired purser,’ he
said, ‘‘saw his name and col-
lected $925.
“It probably will take six
months or more for some of
the fellows who are travel-
ing the world to come
ashore and learn they have
back pay coming,” he esti-
mates.
Men who sailed for {1
companies involved in the
sealift un@er goverrment
contract have money com-
ing. But they are warned not
to apply to the company —
or their union — but the
Maritime Administration's
Division of Accounts, Wash-
ington, D.C. 200320.
Claims must include
name, address, social secu-
rity number, company em-
ployed by and name of ship
und dates served if known.
To make it easy, Rotan is
publishing an application
form in each issue.
San Francisco Examiner
May 6,
1974
ee ee
CERTIFICATE OF SERVICE
I h@reby certify that I served three
true and correct copies of the foregoing
Petition for Writ of Certiorari with
accompanying Appendix upon Frederick W.
Wentker, Jr., Esquire, of the law firm of
Lillick, McHose, Wheat, Adams & Charles,
311 California Street, San Francisco,
California, counsel for Respondent, by
depositing same in the United States aly
postage prepaid, first class, this
day of May, 1974.
ERIC , °
SCHMIDT
Counsel for Petitioner
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