Respondents Brief — Collie v. Fergusson

Supreme Court of the United States

OCTOBER TERM 1929.

No. 423

RUFFIN COLLIE, CLINTON COOK AND ROBBIE

ROWE, Petitioners,

Versus

THOMAS D. FERGUSSON; F. W. DARLING AND

J. S. DARLING, TRADING AS J. S. DARLING

& SON; S. M. SINCLAIR; W. J. WILLIAMSON;

J.C. COUNCIL; NYE, THE ENGINE MAN, IN-

CORPORATED; E. T. LAWSON AND I. E. LAW-

SON, TRADING AS E. T. LAWSON & SON; L.

JOHNSON AND H. L. CORKRAN, TRADING AS

JOHNSON & CORKRAN, AND J. V. BICKFORD,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR F. W. DARLING and J. S. DARLING,

trading as J. S. DARLING & SON; S. M. SIN-

CLAIR; E. T. LAWSON and I. E. LAWSON,

trading as E. T. LAWSON & SON, W. J. WILLIAM-

SON, trading as WILLIAMSON’S, J. C. COUNCIL,

and L. JOHNSON and H. L. CORKRAN, partners

trading as JOHNSON AND CORKRAN.

D. ArtHur KELseEy,

R. ArrHur JETT,

sage SIBERT,

Henry Bowpen, I

SamuEL E. Forwoon, LEON T. SEAWELL,

. Of Counsel. Proctor for Respondent.

ee

W. T. BARRON @ CO., INC., NORFOLK, VA.

Opinions Below l

YT ee 2

The Parties Here Represented... ccccccccoscrn sermon 2

Questions Presented ‘ 2

Facts and Proceedings Below Si ar ae

The Findings of The District Court ane

The Findings of The Circuit Court of Appeals... 4

Argument ....... Bast oF § ate ia 5

Seamen not Entitled to Penalties as Against

Claims of Other Maritime Lienors................. a

Conclusion

AUTHORITIES CITED.

Acepelia, § Fed. (24.), 410... 7

Carlisle Packing Company v. Sandanger, 259 U.S., 255 3

Dimmitt v. Breakley, 267 Fed., 792, cert. den. 254

ia MON aclinalatsesencerlnersicoliicinipidbimtiancitadadhorncgee 3

I ecccticeteninlondinebitenimnenn 7

Sas 7

President Arthur, 25 Fed. (2d.), 1002....00.00000cccccceccsme 7

Sun Company v. Vinton Petroleum Company, 248

Fed., 623, cert. den. 247 U. Sip $14 cocoon ee

STATUTES CITED.

U.S: C.; Section 596, Tithe 46.....ccccccccccnssctnsortnnenneetnne .6, 5, 4

A i by Sy 4

Act of December _ 1898, eon ccnee 28, Section 4,

30th Stat., 756... icctiialiganctiatidibatiaitiiicrnnnnts: +

Act of December 21st, 1898, Chap. 28, Section 26,

a Pt casetscnccntacceepictvnnglocasiegnnniaghisingsticnignicineiens 5

Act of March 4th, 1915, 38 Stat, 1164... cccccccccccoonnnnenn 5

Act of June 28th, 1906, 34 Stat., 551, Section 4... 6,5

8 Se Oe 6, 5

U. S. C. (Official Edition), Title 46, Section 596............. 6

Supreme Court of the United States

OCTOBER TERM 1929.

No. 423

RUFFIN COLLIE, CLINTON COOK AND ROBBIE

ROWE, Petitioners,

Versus

THOMAS D. FERGUSSON; F. W. DARLING AND

J. S. DARLING, TRADING AS J. S. DARLING

& SON; S. M. SINCLAIR; W. J. WILLIAMSON;

J.C. COUNCIL; NYE, THE ENGINE MAN, IN-

CORPORATED; E. T. LAWSON AND I. E. LAW-

SON, TRADING AS E. T. LAWSON & SON; L.

JOHNSON AND H. L. CORKRAN, TRADING AS

JOHNSON & CORKRAN, AND J. V. BICKFORD,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR F, W, DARLING and J. S. DARLING,

trading as J. S. DARLING & SON; S. M. SIN-

CLAIR; E. T. LAWSON and I. E. LAWSON,

trading as E. T. LAWSON & SON, W. J. WILLIAM-

SON, trading as WILLIAMSON’S, J. C. COUNCIL,

and L. JOHNSON and H. L, CORKRAN, partners

trading as JOHNSON AND CORKRAN.

ay

I. OPINIONS BELOW

The opinion of the Circuit Court of Appeals is re-

ported in 31 Fed. (2d.), 1010. The District Court for

the Eastern District of Virginia did not render a written

opinion, but its conclusions are contained in the Court’s

decree found at pages 58, et seq. of the record.

2

II. JURISDICTION OF THIS COURT.

The Circuit Court of Appeals having affirmed the

District Court and denied a rehearing, the decree sought

to be reviewed is the decree of the Circuit Court of Appeals,

paca on July Ist, 1929, and found upon page 79 of the

record. .

III. THE PARTIES HERE PRESENTED.

An appearance has been made and this brief is filed

on the part of F. W. Darling and J. S. Darling, trading

as J. S. Darling & Son, the original libellants and the other

intervening libellants and petitioners named at the beginning

of this brief, and there is no appearance in this Court nor was

there an appearance in the Circuit Court of Appeals on

behalf of Thomas D. Fergusson, the owner and master of

the fishing vessel “DOLA LAWSON”.

IV. QUESTIONS PRESENTED.

The questions presented, so far as these respondents

are concerned, are (1) whether or not Section 596 Title 46,

United States Code, providing that every master or owner

who refuses or neglects, without sufficient cause, to pay to

every seaman on any vessel making coasting voyages a sum

equal to two days’ pay for each and every day during which

payment is delayed beyond a period of. two days after the

termination of the agreement under which the seaman was

shipped or at the time such seaman is discharged, applies

to fishing vessels such as the “DOLA LAWSON”; and

(2) where the master or owner has no interest in the pro-

ceeds of sale of the vessel in the registry of the Court,

whether or not the burden of the penalties provided by

Section 596 shall be transferred from the master and

owner to the lien holders who have intervened along with

the seaman and the amount set aside for the payment of

their claims used for the payment of such penalties.

The other points raised by the petitioners in their appli-

cation for a writ of certiorari deal with(a) damages for

breach of the seamen’s contract for hire, (b) the propriety

of the District Court in suspending the operation of its

decree of distribution, and (c) an alleged conflict, as con-

strued by counsel for the petitioners in the findings of the

3

Circuit Court of Appeals, are all matters within the province

of the particular court ruling upon the same and are not

such matters as demand a review by this Court. Where it

js evident that a correct result has been reached, questions

concerning the correctness of particular rulings not affecting

such results are immaterial. Carlisle Packing Company v.

Sandanger, 259 U.S., 255; Sun Company v. Vinton Petrole-

um Company, 248 Fed., 623, certiorari denied, 247 U. S.,

514; Dimmit v. Breakley, 267 Fed., 792, certiorari denied

254 U. S., 641.

Vv. FACTS AND PROCEEDINGS BELOW

The “DOLA LAWSON” was a small fishing trawler

of 24 gross and 15 net tons, and at the time she was libeled

was owned by Thomas D. Fergusson, Hampton, Virginia.

The original libel was filed on May 14th, 1928, by

Darling & Son for repairs, supplies and other necessaries

furnished the vessel, amounting to the sum of $543.07, for

which a maritime lien was claimed. (R. 2) On May 16th,

1928, the intervening petition of Ruffin Collie and Clinton

Cook was filed. Collie claimed he was employed by the

owner of the said vessel on January 15th, 1928, as cook,

at wages of $100.00 per month, and that there was due

him the sum of $375.00 straight wages and $29.00 over

time, and up to the ‘ime of the filing of his petition he had

received from the >wner of the vessel on account of his

wages the sum of cnly $25.00. Clinton Cook claimed he

was employed on January Ist, 1928, as deckhand and oiler

at wages of $80.00 per month and that at the time his

petition was filed there was $360.00 due him as straight

wages and $20.00 for over time, making a total of $380.00,

and during the entire period of his employment he had not

been paid anything on account of wages. (R. 3).

Robbie Rowe filed his intervening petition on June

23rd, 1928. He claimed he was employed on September Ist,

1927, as seaman at the rate of $25.00 per week, and that

there was due him for a period of six weeks from that date

the sum of $150.00, upon which there had been a payment

made him by the owner of $5.00, leaving a balance due of

$145.00. (R.17). His employment on said vessel had,

therefore, terminated about seven months before the origi-

nal libel was filed. In addition to their wages, Collie, Cook

4

and Rowe each claimed, under Section 4529 R. S. U.S,

(Sec. 596, Title 46, U.S. C.), two days’ pay for each day

their wages were withheld from them without sufficient cause,

Intervening libels and petitions were filed on May 1éth,

1928, by respondent, S. M. Sinclair, for repairs, supplies

and other necessaries amounting to $355.49 (R. 7); by E.

T. Lawson & Son on May 21st, 1928, for repairs, supplies

and other necessaries furnished said vessel amounting to

the sum of $687.36 (R. 8); by respondent, W. J. William-

son, trading as Williamson’s, on May 24th, 1928, for re-

pairs, supplies and other necessaries furnished the vessel

amounting to the sum of $30.41 (R. 10); by respondent,

J. C. Council, on May 24th, 1928, for repairs, supplies and

other necessaries furnished said vessel amounting to the sum

of $90.35 (R. 11); by respondents, Johnson and Corkran,

on May 25th, 1928, for repairs furnished said vessel

amounting to the sum of $423.50 (R. 13); by respondent,

J. V. Bickford, on May 29th, 1928, for repairs furnished

said vessel amounting to $42.25 (R. 15); and by respon-

dent, Nye, The Engine Man, Incorporated, on June 8th,

1928, for repairs, supplies and other necessaries furnished

said vessel amounting to $380.27 (R. 15).

VI. THE FINDINGS OF THE DISTRICT COURT

The vessel was sold at Marshal’s sale for the sum of

$1,650.00. The court costs amounted to the sum of

$224.26. The District Court allowed the full wages claim-

ed by Collie, which with interest amounted to the sum of

$402.57; the full wages claimed by Cook, which with

interest amounted to the sum of $388.00; and the full wages

claimed by Rowe, which with interest amounted to the sum

of $151.00, but refused to allow either of said petitioners

nalties under Section 596 Title 46, United States Code.

he remainder of said fund amounting to $474.17 was ap-

portioned among the libellants and intervenors who had

furnished repairs, materials and supplies to the vessel in the

aggregate sum of $2,867.07. (R. 58).

VII. THE FINDINGS OF THE CIRCUIT COURT

OF APPEALS.

An appeal having been taken by the petitioners, the

Circuit Court of Appeals affirmed the District Court, but

5

. allowed interest for the time during which the amounts due

the petitioners had been withheld from them incident to

the appeal. (R. 74).

VIII. ARGUMENT.

Section 596, Title 46, United States Code, under which -

penalties are claimed in this case, does not apply to fishing

or whaling vessels or yachts, and therefore does not apply to

fishing vessel “DOLA LAWSON”. Section 596 was

originally Section 4529 U. S. R. S., which was amended by

Section 4 of the Act of December 21st, 1898, Chap. 28,

30th Stat., 756. Section 26 of this Act is as follows:

“That this act shall take effect sixty days after

its approval and shall apply to all vessels not herein

specifically exempted but Sections one, two, three, four,

five, six, seven, eight, nine, ten, eleven, thirteen, four-

teen, fifteen, twenty-three and twenty-four, shall not

apply to fishing or whaling vessels or yachts.”

Section 4529 was again amended by the Act of March

4th, 1915, 38 Stat., 1164, in substantially the same language

except that it provided for the payment of a sum equal to

two days’ pay for each day during which payment was de-

layed, while the Act of December 21st, 1898 provided for

one day’s pay. It is clear that the Act of 1915 in no way

repealed Section 26 of the Act of 1898, and that the same is

still in force, and that Section 596 dealing with penalties

does not apply to fishing or whaling vessels or yachts. Sec-

tion 4 of the Act of June 28, 1906, 34 Stat., 551, as original-

ly enacted, provided that Sections 4, 6 and 24 of Chap. 28

of the Acts of Congress, approved December 21st, 1898,

shall apply to all vessels engaged in the taking of oysters,

anything in Section 26 of said last mentioned act to the

contrary notwithstanding. This act now appears in the

en States Code as Section 598, Title 46, and is as

ollows:

“Sections 596, 599 and 604 shall apply to all

vessels engaged in the taking of oysters.”

If the Act of March 4th, 1915, repealed Section 26 of

the Act of December 21st, 1898, and as a result thereof

made Section 4529 U. S. R. S., applicable to all coasting

sandieiii ee

6 .

vessels regardless of their character, then it also repealed

Section 4 of the Act of June 28th, 1906, and Section 598,

Title 46, United States Code, making vessels engaged in

taking oysters subject to said Section 4529 U.S. R. S., now

Section 596, Title 46, U. S. C., is entirely superfluous

and has no place in the United States Code.

This view is clearly the opinion of the Department of

Commerce, Bureau of Navigation, as we find this note in

Supplement 3 to the Official Edition of the United States

Code, p. 449, under Section 596, Title 46:

“The Commissioner of Navigation, commenting

on this section says: ‘The statement this section shall

not apply to fishing or whaling vessels or yachts, but

shall apply to all vessels engaged in the taking of

oysters, should appear in Section 596.’ ”

We have found no judicial determination of the

point. If the administrative view of the law as it now

exists is correct, and we submit there is every reason to be-

lieve that it is, then these petitioners are not entitled to

penalties or extra wages for the delay incident to the sale of

the vessel and adjudication of the questions by the lower

courts. We do not think it is necessary to cite authorities

to the effect that a penalty statute such as Section 596 must

be strictly construed.

IX. SEAMEN NOT ENTITLED TO PENALTIES

AS AGAINST CLAIMS OF OTHER

MARITIME LIENORS.

Even should this court determine that Section 596 ap-

plies to fishing vessels, we submit that under the circum-

stances of this case the seamen are not entitled to payment

of penalties from the proceeds of sale as against the claims

of other maritime lienors. As to whether or not they are

entitled under the circumstances to a personal decree against

the master and owner of the vessel for such penalties, these

respondents are not concerned.

In any event we do not think Robbie Rowe is entitled

to penalties or waiting time. The facts show that he waited

months after his employment ended, all the time himself a

resident of the Port of Hampton, which was the home port

of the vessel, and the base of her operations, to make his

> i

demand. The employment of Collie and Cook was a verbal

contract for no specific time. They were not under shipping

articles and under the decision of the Circuit Court of Ap-

peals for the Fourth Circuit in the Pokanoket, 156 Fed.,

241, it was nothing more nor less than a hiring at will which

could have been terminated by either party at any time.

Their employment was terminated by the seizure of the

vessel under admiralty process for te purpose of convert-

ing her into cash to pay the liens against her. Both Collie

and Cook intervened and made themselves parties to these

proceedings. We do not see how they can well take ad-

vantage, so far as other lien claimants are concerned, of

the delay incident to selling the seized property and the

adjudication of the amount and rank of the claims principal-

ly the wage priorities claimed by them therein.

We find the following district court decisions dealing

with the precise point.

In the case of The Moshula, 276 Fed., 35, the court

says at page 36:

“In the present case neither the master nor the

owner has any interest in the fund now in the registry

of the court resulting from the sale of the vessel. To

allow the penalties would be to transfer the burden

thereof from the master and owner to the lien holders

and the mortgagee. This I do not believe was ever

contemplated or intended by Congress in enacting the

statute in question.”

And in the case of The Acropolis, 8 Fed.,; (2d.), 110,

Judge Campbell, of the District Court for the Eastern

District of New York says at page 110:

“It thus appears that the intent of the statute is

to punish the refusal or neglect of the master or owner,

and is personal to them; therefore subsequent lienors

should not have the fund to which they must look for

payment depleted to pay a penalty which, if even

properly allowable, should be paid by the master or

owner.”

See also the President Arthur, 25 Fed. (2d.), 1002.

8

X. CONCLUSION.

The petitioners have been allowed the full amount of

wages earned by them with interest, and we think they have

received full justice in this case. We submit that even if

the statute providing for penalties is applicable to fishing

vessels, that to deplete the small remainder of the fund

alloted to the payment of lien claims for repairs, supplies

and other necessaries furnished the vessel, would place upon

such lienors a harsh and unjust burden. We respectfully

request that the decree of the Circuit Court of Appeals be in

all respects affirmed.

Leon T. SEaweE tt,

Proctor for Respondents,

D. Artuur KELseEy,

R. ArtHur JETT,

Wa tter SIBERT,

Henry Bowpen,

SAMUEL E. Forwoop,

Of Counsel.