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 ~—

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$

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

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GEARIN,

($2,900.00) on his claim for the mod

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10 Hi

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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 |

_

|

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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