# Petition for Writ of Certiorari — Gearin v. Weyerhaeuser Line > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0238%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 884 ## Text binitaAticl’ 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. =23e e «ff fers Phe This an aris x havin of wt ORDORED, ere . TEeCieyva Ss him with ‘ , i.c 94104 Yerrmadsrrt ‘ HL UNITED SLA PiSfcRicl COURT NORTHERN DIS LAterT sed a: imaliciatWs prosecution, poreonal fiusturs this ware g° asy? tht eodoets nr nnd for 21 ol Meo Pomuant i : a om ft ts vider TH j thie Hiowht in ifs verdict ena ¢ rod i o ADA Taste AnD tf iy fron t! Geferdant the ‘4 medics) care, but that Pores ne tat heh ott. : : : Len.7.& er fuer. ten 8 tt le 10° Ro. sewn weptatens +> aad -0te 2s acess cic mmm (ie 1 Datect: Auyust 2.) - les} : te plaintiff's t 30 ie GG 4 totysey ee tM; : SC 3 } . sf 5 t — Mi ras ae UNLTED STATES DISTRICT COURT } . | 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 » 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0238%3A1. Public record. Not legal advice.