Brief and Appendix for Petitioner — Isbrandtsen Co. v. Johnson

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Supreme Court of the ‘ont States

eee

October Term, 1951.

No. 493.

--ISBRANDTSEN COMPANY, INC.,

Petitioner,

Vv.

MATTHEW JOHNSON,

Res pondent.

On Writ of Certiorari fo the United States Court of Appee

for the Third Circuit.

‘

"Brief and Appendix for Petitioner.

¢?

THOMAS E. BYRNE, JR.,

MARK D. ALSPACH,

KRUSEN, EVANS axp SHAW,

225 South 15th Street,

Philadelphia 2, Pa.,.

» Counsel for Petitioner.

International, 2% Chestnut St., Phila. 6, Pa. . fF

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® -. INDEXTOBRIEFs =. oj

oon ate . ; Page

Opinions ‘Betow «...., easy ee Wok vaica tes eeeuaieaee 1

\ Jurtsprorion ............0-. Uae AONE NO RECS CREE |

Sravemenr or THE Case ..............00000. Wore oe

_ SPECIFICATIONS OF WOM cos Conf ecg ince cy iipesiae) Sie

UMENT ..... saseerpees eae Nae ib Rbaseheucee 6

| 6

1 Under the General Marijtime: Law, Petitioner

a Had the Right to Recoup or Set Off the

Pecuniary Loss Sustained by It as the

Result of Respondent’s Acts, Against the _

ee Financial Emoluments Which ‘Would

: Otherwise Have’ Been vayele ‘to Re- i

BPOndent ope eee e cece esse ee eeeees a

> II. The Court of Appeals E ed #h Concluding

} - That PetitionerCould No t Recoup or Set.

Off Its Loss Because Bespondent’s Con-

duct Did Not Fall Within Any of the Cate-

_ gories Enumerated in R. S. $4596, as - @.

Amended, 46 U. §. C..§701. This Isa

Penal Statute, and as Such Does: Not Gov-

era the Civil Rights and Liabilities of Sea-

; man ‘and Shipowner, Inter Se, in a Dispute »

Involving Solely the Amount of Money

Owing by One to the Other at the Conelu- .

sion of the Voyage .............4.0c000s : ig i

_ IU. The Court of Appeals saatiov? in TavcRing the. ~~

Doctrine That “Sea Are Wards of the

3 Admiralty’? to Support Its Denial-of the

' Equitable Right of Set-off or jenveepment |

to the Petitioner, ............0002...05. oo tee

Conciusion *............ SOO prea ae 22

Aprenpix To PirrriowEr’s, W pisiecestepecsge ves ae

Sy ecnbeatestodi bate as Amended, 46 U. ‘S.C. § 701 23

: *

Ser ©@ 6

_. TABLE OF CASES CITED.

The Arizona y. Anelich, 298. U, 8.110 ...... So ee |

The W. F. Babcock, 85 Fed..978 (C. A. 2,1898):...... 107°

Bailey v. Drexel Furniture Co., 259 U. 8. eel es ec ae

The J. Oswald Boyd, 53 F. Supp. MOD Sieve etvcicans Pore Je

The Marjory Brown, 134 Fed. 999 (De€., 8. D. N. Y.,. :

ROWE esc cv pwauh Riu ba ced oe py eC rare oe eee, 11

Brown v. The Neptune, Fed. ‘Cas. N6. 2,022 (D. C.,.

ee) A Oe oer ea enn ry oc ee _ 10

Glennon v. Lebanon Mfg. Co., 140° Pa. 594 ....... yer ae

Greenleaf v. Huntingdon & B. T. M. RB. & Coal Co., RENE a

F. R. D. Eo RO he ee ea eee BS es

Harden v. Gordon, Fed. Cas.- No. 6,047 (Cc. C. Dev af

MEMO TBAT) oon sain Se eee iis ee eh sacs 1g

Hume v. Mcore-MeCormack, 121 F. 24 B36 ois cass ee Oe

The Kalfarli, 277 Fed. 391 .:.....0..0....0.. eke 7-

_ Kellum v. ‘Emerson, Fed. Cas. Na. 7,669. ..:.7.0.....- 7

- The Ellen Little, 246 Fed. 151 (D. C. Mass. 1916) ... 10

Macomber v. Thompson, Fed. Cas. No. 8,919 (Circuit .

Court, Dist. Maas., 1833) .>...........-.00 005. @,12-

_ A. Magnano Co. v. Hamilton, 292.0. 8.40 ......000. 14

Maratta v. Chas. H. Heer Dry Goods Co., 190 Mo. *.

App: 420; 277.8. W.T18 6... esol ce. jg

-- Norris v. Cohen; 223 Minn. 471, 27 N. W. (2nd) Whang 42 “

Oldfield v. The Arthur P. Fairfield, 176 F. 2d 429, eer-

tiorari denied 338 U: S. 879 . * ee Séeeecgs 1d, 18,

- Rea v. The Kelipse, 135 U. S. 599 ..:...... wawwes ie 7

- Rosner'v. Globe Valve Corporation, 83 N. Y. S. (2nd)

. 496, affd.-87 N. Y.'S (2nd) 524.22... 000.0005. 12

Scott v Russell, Fe# Cas. No. 12, 546 (D. e, BD.

N. Y., 1848) Waele d La ceR CRATES S CMY Abs wee 11

Shilman v. Unitéd States, 164 Fr 2d 649, ‘cert. pu 333

U. 8. 887 (0. A. 3, 1047) 3. oe eee UA |

Snell v. The Independence, Fed. Cas. No. 13, 139 (D. Cy .

_E. D. sie aes Sexares pee! ee CasiRLi oe ke yces 10

"TABLE OF CASES GITED (Ooritfnued) ~ :

Sccony-Vacuium Oil Co. v. Smith, 305 U. S. 424 piencg oe.

The Virgin, 33 U. S. 5388 ...... Siantbuneunee eveesaes 8.

Warner v. Goltra, 293 U.S. 155.2... 2... ee gee eee ot

The T..F. Whiton, Fed..Cas, No. 13,849 (D. 0., S. D. -

N.. ¥,, a) chess gees ae ORS er ok 9, 11, 12,15.

e | : : * f | He a” ‘ : } i

TABLE OF TS AND AUTHORITIES CITED.

e . Page

Act of June 7, 1872, $51, ¢.. 322; 17 Stat. 273.........° 14

Benedict, on Admiralty (Sixth Edition, Vol. 2, page = >

30) esense a a ee ee er a er rs y ¥.

56 Corpus Juris ‘Becundam (Master and Servant) _

OT, 20- (toe. BOG: BOBS Fo ‘ qs

i Restatement, Agenty, "§ 399 (g), (k); §456 ..... (orga

RB. 8. $3629, aaa gms ries teeeuas & rere Ne

RS. § 4596, amended, 46 U. 8 C. § 701+... .5,6, 13, 14,

ni ee |. ae

R. S. § 4610, 46-0. 8.°C. $71. etn ae ON

a id S. Code, Title 28: ime See ie mr

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: amen 40) -- ase beep h lessees eeteeeeeeeeteenese De),

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| ‘IN THE

- Supreme Court. of the United States.

October Term, 1951.

y+ — No, 493. or,

ISBRANDTSEN COMPANY, INC,

Pr. Pi

‘MATTHEW JOHNSON,

Respondent.

On Wait or Cerrionant To THE Unirep States Court or

APPEALS FOR THE TuIrp Cmcurr.

BRIEF ON BEHALF OF PETITIONER, ISBRANDTSEN

COMPANY, INC., ON WRIT OF CERTIORARI TO

. THE .UNITED STATES COURT OF ABPEALS FOR

— THIRD OIRCUIT. :

‘OPINIONS BELOW. y

The | opinion of Chief Judge Kirkpatrick of the United

States District Court for the Eastern District of Penrsyl-

vania, filed May 19, 1950, appears at R. 15a to 18a; inglusive,

and is reported at 91 F. Supp. 872. The opinion of Chief

- Judge Biggs of the United States Court of Appeals for the ~

Third Circuit, filed August 17, 1951, appears at R. 32_to 36,

Lmonein: and is —— at 190 F. 2d 991. .

: _ JORISDIOTION.

PS The Jariatiction of this Court to review the final judg. 3

ment of the United States Court of Appeals for the Third

Circuit is provided by fo Set (1) and § 2101 is) ¢ of Title 28,

U. S. Code.

-_—

Brief on Behalf of Petitioner 7

STATEMENT OF THE CASE.

_ This is aibel in admiralty by Respondent, a merchant

seaman, to recover wages, the value of transportation from

Philadelphia, Pennsylvania, to Seattle, Washington, and

‘double wages’’ under R. S. § 4529, 46 U. S. C- § 596.

Respondent joined the.crew-of Patitioner’s steamship

“Stephen W. Kearny’’ as a messmian on February 3, 1948

at Seattle, Washington. On April 21, 1948 while the vessel *

waé in the South Pacific en route to the United States, an

altercation took place between Respondent and one Wells

Brandon, another crew member, during which Respondent

without justification Jttackgd Brandon with a knife and

wounded him so severely that it was necessary to divert

. the vessel from its ‘course in order to get,Brandon to a

hospital (R. 15a). i f

' As a result of Respondent’s attack upon Brandon and

the diversion of the vessel, Petitioner incurred expenses

and losses amounting to $1,691,55 (R. 15a), represenging the

cost of hospitalization, medical care, repatriation and sub-

sistence for Brandon, and the vessel’s wperating #xpenses

attributable to diversion.of the ‘‘Stephen W. Kearny’’ to

the Island of Tonga. ve S708

After his assault upon Brandon, Respondent was con-

fined aboard the vessel, and performed no duties: No |

wages were crédited to Respondent after the date of the.

assault, and as the issues ultimately developed upon trial,

Respondent made no claim for wages subsequent to April

21, 1948.(R. 13a). a Lapel

When the voyage terminated at Philadelphia, Penn-

sylvania on May 31, 1948,-Respondent was removed ie

_ the vessel by federal police authogities.’ He was not prsent

at the pay-off of the crew on June 3, 1948, On June 11,

1948, Respondent’s attorney made a demand upon Peti- -

tioner by telephone for the payment of Respondent’s wages,

which demand was refused. Petitioner refused to pay Re-

spondent bécause it set off the wages which had accrued to

” Brief-on Behalf of Petitioner = «8

_Respondent prior to the stabbing incident against the ex-

_ penses incurred by Petitioner as_a result of meeneneens s

assault upon Brandon (R. 13a). Xe

Respondent then filed: the present libel in admiralty.

As originally drawn, the libel claimed wages in the amount

of $750.27 and in a second cause of action-claimed the value-

_of transportation from Philadelphia, Pennsylvania to

Seattle, Washington and ‘‘double wages’’ for withholding

the wages and value of transportation which Respondent

_alleged were due him. Certain other issues not here ma-

terial were raised by the original pleadings, but were sub-

sequently removed from the case by stipulation (R. 12a).

Likewise, by stipulation, the net amount of wages claimed

by Respondent was asserted to be $439.27, and Petitioner

admitted that as of April 21, 1948, the date of the stabbing

incident, there had acerued to Respondent net earnings in

. that amount, which Petitioner refused to pay. Petitioner

‘denied that Respondent was entitled to. revéive. the sum of :

$439.27, or any’ part thereof (R. 12a). o ,

Petitioner, in its answer to the libel, set up as a sepa-

rate, complete and affirmative defense, and: by way of coun-

terclaim, that Respondent had attacked Brandon, wounded

him and necessitated diversion of the vessel], and that by

reason of the assault, Petitioner had incurred certain ex-

penses. Petitioner further averred that the: wages which

q° ould otherwise have been due Respondent had been law-

ully retained by ‘Petitioner. on account of its loss, and

claimed the balance cf its loss from Respondent (R. 9a-10a).. -

- The case proceeded to trial in the District Court before

Chief Judge Kirkpatrick, who rendered his opirion on May

19, 1950. .The Trial Judge found that the ‘‘facts upon which

[Petitioner ’s] ‘affirmative. defense and° counterclaim are

based are fully established by the evidence’’ (R. 15a). How-

- ever, he awarded Respondent wages in the amount of

$439.27, plus the value of transportation, but denied Re-

_ spondent’s claim for. ‘‘double wages.’’ On June 21, 1950,

a final decree was entered in conformity with Judge Kirk-

i . e

\ ‘f . 2 i lly

a Brief on Behalf of Petitioner :

patrick’s opinion (R. 18a), from which Petitioner took an

appeal to the United States Court of Appeals-for the Third —

Cireuit. | {%

On August 17, 1951, the-Court of- ‘Appeals, i in an opin-

“ion by Chief Judge Biggs, affirmed the. judgment of: the?

District Court (R. 32-36).

The GSurt of Appeals held that Petitioner could not

recoup or set off its loss- contemporaneously with Respond-

ent’s claim because Congress, in R..S. § 4596, 46 U. S. C.

§ 701, had “legislated i in the field of assaults committed by

anes and saw fit to prescribe no penalty for an assault

by seaman on seaman’’ (R. 35). In further support of its

conclusion, the Court of Appeals adverted toethe status of

seamen as ‘‘wards of the admiralty,” and expressed re-

luctance to ‘‘wtpe away :the* benefits conferred by the

Statutes on seamen as a class because of the criminal con-

duct of one seaman”’ (R.°34). :

-e Petitioner fited with the Court of Appeals a petition

for rehearing (R. 39-47), which was denied on September

27, 1951.(R. 48). Petitioner filed a petition for writ of |

certiorari on December 26, 1951, and this-0 ourt granted the

petition an March 3 1952 (R. 0). : see

* pee age

\ * e + ww

Brief jon Behalf of Petitioner yen

SPECIFICATION S OF ERROR.

Petitioner urges that¢the Court of Appeals for the

Third Cir cuit er¥ed in the following respects:

23 °Tn réjecting the established rule of the general mari-

time law, that a shipowner, in an action for wages and

other financiifl emolumefits by a seaman, can set off or re-

coup the pecuniary loss sustained by the shipowner as the ©

result of a deliberate act of theeseaman in violation of the

contract of employment.

2. In construing a penal statute, R. S. § 4596, as -

amended, 46 U. S. C. § 701, to gove Ps the civil rights and

lidbilitics of seaman and shipowner, inter se, in a dispute

involving solely the amount of money owing by one e tothe

other at the conclasion of the voyage. -° .

3. In invoking the doctrine that “seamen dre wards of

the admiralty’’ to support its déniat of the équitable right

of set-off or recoupment to a shipowner’ against whom a>

manetary claim had«been asserted by a seaman’ whd had

attacked with a deadly weapon and seriously Wounded a

shipmate, thereby ‘causing loss to the shipowner almost ..

, three times as great | as the amount of the seaman’s claim.

‘e

’ re

6 Brief on Behalf of Petitioner

ARGUMENT.

ne ; . e. “ et

pene of Argument. |

Under ti general maritime law, Petitioner, when faced

with an action for wages and other financial emoluments

drought by the Respondent, had a right to set off or recoup

thé pecuniary loss which Petitioner had sustained as the _

firect result of Respondent’s unjustified act in violation

of the contract of employment. The rule_of the general

maritime law which supports Pgtioner’s' right has evolved

upon the fundamental principles of equity and natural jus- —

‘tice which have uniformly been regarde@l as controlling -

considerations im guiding the delibefations of courts of

admiralty. abe oe :

The Petitioner’s right of set-off or ‘recoupment is not

‘limited to those instances where Congress has affirmatively

. Authorized a ‘‘forfeitare’’ or ‘deduction’? from’ the seat

man’s wages by statute. - Specifically, the fact that R. S.

-§ 4596, as amended, 46 U. S. C. $701 treats gertain types

of assaults by seamen, and does not proseribe the conduct

exhibited by {he Respondent in the case ‘at bar, is-of. no :

moment in determin ng the present controversy. R. S. .

§ 4596 is not an exclhsive) catalag. 6f circumstances under’

which a shipowner s entitled to civil redress. This’ is

purely a penal statuté, and is not determinative of the, civil

rights and liabilities. af seaman and shipawner, inter se, in

a dispute involving sella? amount of money owing by

one to the other at the conclusion of the voyage. Thus the

statutory law does not impair the rule of the general mari-

time law which: ‘supports the right which Petitioner prep: |

ently asserfs,

The Courts of Appeals invoked what it sumeetved to be

a controlling consideration of policy—that seamen are

‘‘wards of,the admiralty’’—in support of its denial to Peti-

ationer of the right of set- oR or recoupment. Even if it be.

“assumed, arguendo, that in“the present era there persists

i |

any genuine “necessity, for the sneiication of the ‘‘ward-

ship’? doctrine, under circumstances. not present here,

nevertheless, the present éase presents a striking instance

of misapplitation of the doctrine. Here the doctrine was

invoked to exculpate from civil liability a seaman gvho had,

-without justification attacked With a deadly weapon. and

seriously wounded a shipmate, anti ‘in so doing, ‘also saddled

his innocent employer with pecuniary loss: -alnost three

times as great as the amourit awarded the seaman. Under

these circumstances, it is* péculiarly- appropriate that this

_ Court should €&xamine and correct the present misapplica-

tion of the wardship doctrine,.and should delimit the field.

— cack ‘its seperation fo situations: where its impact is not.

~woffensive to fundamental notions of justice. -

Ir Under nder “thie General Maritime Law, Petitioner Had the

- Right to Recoup or Set Off the Pecuniary Loss Sus-

tained by It as the Result of Respondent's Acts, Against

. + the Financial Emoluments Which: Would Otherwise

Have Been Payable to Respondent.

If any principle be well establishell in the maritime

| law, it is this: that although courts of admiralty lack cer-

tain characteristic powers of. courts of ’ equity,. neverthe-

less the admiralty courts in determining controversies with- -

° iv their jurisdiction, are guided by fundamenta! principles

of equity and natural jt&tiee. Rea v. The Ecitpse, 135 U.S

599, 608; Kellum v. Emerson, Fed. Cas. No. 7,669 ;* The

J. Oswald Boyd, 53 F. Supp. 103, -106; The Katfarli, NTT

Fed. 391, 394.

Bene: ict, in his treatise on Admiralty (Sixth Edition,

‘Vel. 2, page 30) expresses the principle thus:

_ ‘The court is -bourd fo.determine the cass sub-

mifted to its cognizance, yoon equitable principles, and

according to the rules 6f natural justice. This prin-

ciple of the maritime law.pervades the wholea.practice -

of the admiralty i in the United States eee

‘Brief on Behalf of Petitioner Ri es

is oh

eer on » Behalf of Petitioner

To the same effect are the seuss of Mr. Justice

Story in The Virgin, 33 U. S. «038, 550, wherein he ob-

‘served that admiralty courts ‘‘in the exercise of their j juris-

. diction, are not governed by the strict rules of the common

* Jaw, but act upon enlarged principles of equity. .

Where a servant, by ‘a deliberate act in violation of

his contract of employnent, causes—financial loss’ to his .

master, it is but a matter of simple equity and justice that

the servant, when presenting a claim for wages arising out -

of the contract of employment, should be held accountable.

to ‘the master for the corisequences of his wrongful. act.

Therefore it is quite natural, and consonant with the prin-

ciples referred to above, that the general maritime law has

established the rule that where a’ seaman, by a deliberate

act in violation of his contract of employment, causes finan-

cial loss to the shipowner, the shipowfier is entitled to re?

coup or set off its loss when fated with the seaman ’s cao

for wages. —~ - =P oe,

' That is the right which. Petitionar here asserts, and

which was‘denied by the Courts below. The right is firmly: .

rooted in the general maritime law, and its scope is clearly

-delineated by decisions involving a variety of factual situa-

tions. Reference to the decided cases confirms, that the

shipowner’s righ¢to mitigate its loss is Pounded upon the -

considerations of equity and natural justice which have

: become s6 deeply ingrained in the maritime law.’

in The T. F. Whiton, Fed: Cas. No. 13,849 (D. C., 8. D.

N. Y., 1879 the-setond mate of a vessel filed al libel. to re-

cover the sum of $91.75 as wages allegedly due him. The

vessel owner, by way of defense, avéerred that the lib:Iant,

during the course of the voyage, had committed an assault

-and batféry upon the vessel’s steward, with the result that

- the steward was severely injured and was in danger of

losing his life. The vessel inevrred a loss of $120.00 in

sums paid for medical -attention for the steward, and in

the loss of the steward’s services. The court held. that

y rt ‘

. Brief on Behalf of Petitioner , 9

; ’

under these cireumstancés, ‘there was nothing due and

“owing the libellant. The court said: Atta

“That such an ‘act on the part of 2 a ‘seaman, where-

by the vessel suffers damage or is put to expense, is to

be considered in diminution of a claim for wages, has

been often. held (citing cases). ree

The striking similarity’ between. the fyets. of The T. F.

Whiton and those of the case Wat bar, is .immediately ap-,

parent. Another‘rase, Maéomber. vi: Thompson, Fed.. Cas.

No. 8,919 (Cireuit Court, Dist: Mass4 1833), stands for sub-

. stantially the. same proposition, as/does Fhe T. F. Whiton.

In Macomber’ v. Thompson, Judge Story’; was ¢ sidering

a factual sitdatior in which A crew member sag. been in-

‘subordizate, had assaulted. the second mate. ‘aia the chief

" mate and had. general? conducted himself. in an insolent

“and mutinous manner. Judge Story said: Se ot

* "The charge thus set uplin its actual presentation

is certainly of a very high and aggravated nature. If .

it weré completely borne out in its full extent by the

-eviderice, it would call for the severe animadversion

of the court. Some parts of. the chérge are, however,

wholly unsupperted, not only in form, but in sub-

stanee.”? : .

The court ‘then went on to pola out that the shiavawis

had completely failed to establish that the losses which it

attempted to set off against the wages claimed were directly

attributable to the libellant’s conduct, and therefore per-

mitted only a partial ‘set-off of the wageS-claimed. In the

. ease at bar, there can be no gnestion but that the amount of

loss sustained by the Petitioner was the direct ang proxi-

mate result of the Respondent’ s act in violation of the

contract of employment. ‘

There are many othe analogous.cases under the gen-

eral maritime law where; in an action for wages by a sea-

man, the admiralty courts have permitted the vessel owner

10 Fee Brief on Behalf of Petitioer

: te set off ais which it had sustained by reason of the’

_ “Jibellant’s d@reliction of duty. “In The W. F, Babcock, 85 |

Fed. 978 .(C..A. 2, 1898), eertain seamen att the vessel

- without cause, were arrested and taken before a Consul,

and at the request of the master were delivered to the cus-

.tody: of Hawaiian police authorities. The shipowner was

“petmitted to-set off against their claimed wages the charges

ape for, theix- arrest and detention, the wages of their substi- '

tutes, sand the amount which was. necessarily Paid by the

vessel to the shore authorities as a penal for the willful

* breakage of a shop window by the seameti’on their way to ,.-

_ the yessel under custody. |

The Ellen Little, 246 Fed. 151 (D, C. Mass. 1916), was «

-a.case in which the libellant, arf officer of the ‘vessel, and °

oe crew members: took no measizves to prévent the

smuggling ashore of a stowaway, although libellant knew

that the stowaway was aboard the vessel. Federal author- — __

ities detained the vessel for.a few days, and other expenses |

were incurred by the ship as a result of the smuggling ©

incident. The court deducted from the libellant’s pay a

proportion of the loss oceasioned the shipowner commen-

asurate with the libellant’s fault as egmpared -with that Sf |

“other crew menibers, some of. whom appeared to have been

equally culpable.

In Brown v.. The Neptune, Fed. Cas. No, 5.022 (D. C.,

. - E. D. Pa., 1829), the vessel owner was permitted to deduct . e

- from wages claimed, with respect to-oné libellant; the loss

actually sustained by the vessel by reason of the li re

_ wrongfal absence from the shjp, and with respect tofanother

libelfgnt, the vessel owner was permitted to deduct the

value of an article -belonging to the vessel which had been

lost by his inattentign and carelessness. In Snell 'v. The

Independence, Fed. Cas. No. 13,139 (D: C,, E. D. Pa., 1830), ©

the shipowner was allowed to deduct a proportionate share -

of demurrage expenses occasioned by the libellant’s refusal

to perform duty, and also pptice costs and charges. ineurred

asa result of the seaman’s improper conduct while ashore.

Brief on BAG of Petitioner of | i

See also Scott v. Russell, Fed. Cas. No. 12,546 (D, C., 8. D.

N. Y., 1848); and The Marjory Brown, 134 Fed. 999 (D. C:,

S. D. N. LZ , 1905). :

32 we vesent: appellate decisions deal sith: the ship-

owner’s right to set-off or recoupment under the general

‘maritime law: Oldfield v. The Arthur P, Fairfield, 176 F.

2d 429, cert. den. 338 U. S. 879 (C. A? 9, 1949) and Shilman

‘v. United States, 164.F. 2d 649, cert. den. 333 U. S. 837

(C. A. 2, 1947). Both of these cases wil, receive/additional — -

_ consideration in the following section of our argument. :-For

present purposes; however, the oe observation’: are |

relevant:

In .the Oldfield case, a SERENE was _perqitted’ to

set off against wages claimed, the seaman-libellant’s pro

rata share of a fine paid by the shipowner for release of the

vessel, the fing having been _ imposed by Dutch customs.

officials wT A of a smuggling attempt in which the libél-

lant had participated.

“The Shilman case inyolved an attempt by the- United

States, in its capacity as shipowner, to set off against wages

claimed by a seaman, the amourt of a fine imposed upon .

the seamar by a Thiited States Army court martial in a

foreign country. ‘Phe court cited several cases (including

The T. F. Whiton, supra, at 164 F. 2d 652) under the gen-

eral maritime law wherein sét-offs had been allowed with

respect to expenses incurred on behelf of the ship in con-

nection with the te ds ‘The court then proceeded to dis-

‘ tinguish the case before it from those arising under the |

general maritime iaw on the groand. that, in the pending

action, the cet was-not seeking to recover any ex-

pendi‘ure caused during the course of the voyage, or for

the benefit of the ship; nor was there any evidence that the

ship or her owner had suffered any loss by reason of the

seaman’s conduct. The glear implication of the Shilman

opinion is that the Court of Appeals for the Second Circuit

‘considered the cited cases under the general maritime law

as authoritative and applicable upon their facts,

12— : Brief on Behalf of Petitioner | |

“The foregoing cases stand; in ceaatak: for the proposi-

tion that a shipowner may set off against amounts. other-

wise owing to the seaman, the pecuniary loss sustained by

the vessel as a direct result of the seaman’s act in violation

of the contract of employment. In particular, they hold

0 that where a seaman has committed an assault upon another

crew member, the set-off is allowable as to such losses as

are proven té be the direct result ‘of the assault: The I. F.

Whiton, supra, and Macomber v.-Thompson, supra. Under .

_ these authorities, and under the-facts of the case-at bar as.

“Found by the ‘Trial Judge and ‘approved -by the Court of

Appeals, it is clear that Petitioner had a right to recoup or

set off its pecuniaty toss when gued by the Respondent. est

‘e The rule laid down in ‘the foregoing: eases is by no.

means peculiar to the maritime law. Rather, these cases

demonstrate that the maritime ‘law, on this point, is no

different from the law pertgining to the inaater-servant

relationship in general, It is well settled that where a sex’.

vant, by an act in violation of the éontract of employment,

causes pecuniary loss to his master, the ‘servant is subject

to cwil liability to the master, dnd thatthe servant’s civil

liability may be sueceysfully asserted by the master by way

of set-off, counterclaim or recoupment, when the master is

faced with §f action for wages by the-servant. Restate-

. ment, Agency, § 399 (g), (k); § 456; Glennon v. Lebanon

Mfy. Co., 140°Pa. 594; Rosner v. Globe Valve Corporation,, °

N. Y. S. (2nd) 496, affd. 87 N. Y: S (2nd) 524; Norris

. Heidinedas é B. T. M. R. &.Coal Co., 3 F. RB. D. 24; -

Maratta v. Chas. if, Heer Dry Goods Co., 190 Mo. App. 420,

177 S. W.. 718; 56 Corpus Juris Secundum (Master and

Servant) §77, 79 (pp. 500, 502). eine pees ,

‘

Brief ‘on Behalf of Petitioner 13

II. The Gourt af Appeals Erred in ‘O8ncluding Thaf Peti-

tioner Could Not Recoup or Set Off Its Loss Because

Respondent’s Conduct Did Not Fall Within Any of the

Categories Enumerated in R. 8. §4596, as Amended, 46

U. 8. C: § 701. This Is a Penal Statute, and as Such

Does Not Govern the Civil Rights and Liabilities of

- Seaman and Shipowner, Inter Se, in a Dispute Involv-

ing Solely the Amount of Money Owing by-One to the

_ Other at the Conclusion of the Voyage. -

Tle cases under the general maritime law ‘which we

have previously discussed, and which establish the rule for.

which Petitioner here contends, were rejected by the Court

of Appeals, Inthe view talon by the Court of’ Appeals,

the case turned primarily upon the “provisions of R: 8.

§ 4596, as amended, 46 U. S. C. § 701.* The Court held that

since Congress, i in, this statute, had>‘‘legislated:in the field®

of assaults committed by seamen and saw fit to prescribe

no penalty for an assault by seaman on seaman,”’ it did not

take the view ‘‘that such an assault must result i in the loss

of wages of the seaman assailant.’’-. :

It is Petitioner’s contention that the - provisions of.

’ R. 8S. § 4596 are neither relevant nor controlling in the cace *

at bar. R. S. § 4596 is a penal statute, but the question in

the case at bar has’ nothing to do with crime and punish-

ment.’ All that Petitioner asserts is the existence of a

financial obligation to it on the-part-of Respondent, arising

out of the employer-employee- relationship, and the. right

to reeoup or set off this obligation in the Respondent’s suit

which is founded upori the same relationship. In so doing,

Petitioner is not attempting to punish or penalize Respond-’

ent; its object is not to impose discipline, but rather to

secure recompense by-an Tt adjudication of its civil

rights and liabilities. . ~

That R. S. § 4596 is penal im nature is readily apparent

on its face. This statute lists eight categories of ‘‘ offenses”?

* Text is set out in ‘Appendix annexed to this brief.

+ 4 .

*» e . 4 s ) “ Lat?

¢ .

ee . 4 %

Ma Brief. on Rehalf of Petitioner

‘which a seaman ¢an- commit, for Which he halt be ‘nan,

ished?) j in.the designated mianner: “In many instances where

he prescribed ‘‘punishment’’ includes loss of wages, the . :

loss is described a& a ‘‘forfeiture.”? -° ©

It is a familiar principle of statutory constriction’ that )

the intent and meaning of the Legislatuze must be ascer- -

tained from. the Tangnage of the statute, and the words

used therein are to be given their ordinary meaning, unless

the context shows that they are differently used. A. Mag-

~ nano Co. v. Hamiltom3292 U. S. 40,46-47; Bailey v, Drexel .

Furniture Co.. 259 U. &. 20, 36. Applying this principle to

the statute under consideration, it is difficult to see how

Congress could have used language more eafeulated to com-

. pel the conclusion that the purpose of the Act was solely to -

define certain types of criminal conduct and ap a pun-

ishment therefor, apd nothing more. Nothing in the Act

indicates, either directly or by: implication, that the Act.

‘ was in any way intended to affect civil rights and liabilities.

The language of R. S. § 4610, 46.0. S. C. § 711, which

provides, inter alia, for the recovery o&‘‘penalties and for-

' feitures’’ imposed by R. S. § 4596 is likewise significant.

The reference to ‘‘eonviction, ”’ ‘imprisonment, ” **nen-

alty’’ and words of similar import in R. S. § 4610 clearly

reflects the nAfure of R. S. $4596. and the ohjects sought to

be attained thereunder. Bs

Reference_to the derivation of R. 5. § 4596 i is’ likewise

enlightening. This section was derived from 451 of .the

Act of June 7, 172, c. 322, 17'Stat. 273. § 51 of the Act of

1872 immediately’ follows the gener] gaption: “ Discipline

* of Seamen,”’ and contains provisions which are similar in. °

many respects to those now embodied in R. S. § 4596,

The opinion of the Court, of Appeals: does not reveal:

to Petitioner. any uisagre ent on the part of ‘the Court

with Petitioner’s contention as to the nature of R. S. § 4596."

The point of departure is the analysis of the issues involved _-

in the present controversy. The Court of Appeals persists.

in treating the problem in the case at bar’as one of ‘‘disci-_

| der t

Brief ~ Behalf of Petitioner Sat ale

. eae penalty,’’ rather than of who owes wom how

the Court of Appdale that R. S.

mugk, in which latter gategory it properly belongs.

*” The popeition Nt

§ 4596 codifies the only\cireumstances under which & sea-

matr may be subject to civil Jiability to his employer‘was -

_Tecently flatly rejected’ by the Court of Appeals for the

Ninth Circuit in Oldfeld v. The Arthur P. Fairfield, 176 F.

2d 429, certiorari denied 338 U.S. 879. Inthe Oldfield case,

‘the Court of Appeals permitted-a, shipowner to set off °

aghirist wages claimed, the libellant’s sro rata share of a

fine-paid by the shipowner for release of the vessel, fhe

fine having been imposed by Dutch customs officials because

of a smuggling. attempt in which the libellant had partici-

pated. R&S. ¢ 4596, in treating the sppiect of smuggling, °

3 deals only with acts of smuggling for which the-offender mee.

- had been convicted. In the Oldfield case, the libellant had: -

not been tried for the offense of smugeling and a fortiori

had not been convicted. Although § 4596 provides no ‘“pen- a.

alty’’ or‘Spunishment’’ for the seaman unger these cir-

cumsffuices, the Court of Appeals held that this fact cannot

’ be construed as an: abotition of the equitable _ of re--

coupment belonging to the shipoWner.

The Cou of Appeals for the Seeond Cirouit j in Shil-

man v, United States, 164 F’. ‘2d_649, certiorari denied 333

_U. S. 837, likewise réjected by implication the contention

that the shipewner is #without a civil remedy where the

Oseanian’s conduct in violation of the contract of em loy-

ment has caused pecuniary loss to the “vessel’s interete,

The Shilman case involved an attempt by the United States,

in_its capacity as shipowner, to, set off against wages

claimed by a seaman,.the amount of a fine imposed , upon

thé seaman by a United States Army court martial in a

‘foreign country. The Court of Appeals (at 164 F, 2d 651)

- first referred to various statutory provisions which. author-_

ized deductions from wages, cb aga cited several Gases’

( nlaiyg The T..F. Whiton, su at 164 F.2d 652) un-

general maritime law wherein set-offs hail been

> | ; %

16 | Brief on Behalf of Petitioner

allowed with respect to expenses incurred on behalf of tlie

ship in connection with t@e voyage. The Court then pro-

ceeded to distinguish the case before it from those arising

under the general maritime law on the ground that, in the

pending action, the shipowner was not’ seeking to recover

aly expenditure caused during the course of the voyage, or

for the benefit of the ship; nor was there any evidence that

the ship or her owner had suffered oy loss sg reasori of «

the seaman’s conduct.

True it is that at’ one point in the Shilman ‘ opinion (at

~ 164 F.2d 650-651) the Court, after noting certain statutory

provisions, said_ihat the sections quoted ‘‘look towards

| payment to the’seaman by his employer, at the termination .

of the employment, of all of his earned wages, without any

' deductions except thoge which are expressly authorized by

statute’? ‘This language, however, .is necessarily qualified .

by, and must be construed in the light of the Court’s sub- .

general maritime law, and the Court’s distinction of the,

pending case from the factual-gituations therein. “Phe-clear

implication of the, Shilman opinion is that the Court of

Appeals far the Second Circuit considered the cited cases:

‘under the genera! maritime law a as authoritative and‘ eked

- eable upon their facts.

The Court of Appeals for the Ninth Cireuit, in ‘the

Oldfield ‘ease, recognized this implication of the Shileon .

opinion. In reaching its conclusion; the Court in the-Old-

field case noted (at 176 F. 2d 431) that: the le car of re- - :

_ coupment has . . . recently been recognized again’? in the

- Shulman case, and ‘quoted extensively from that portion of

‘the Shilman opinion which cited cases under, the general

maritime law supporting the right. of the shipowner to set

off losses incurred by the sete in connection with the voyage,

as the result of. edeama n’s.conduct.

._- The view jaken by aa Court in the Olafivid case as‘ to

‘the efficacy -of the general maritime law,.the statute -not-

. withstanding, in controversies involving civil liabilities

‘

Brief on pris of Peiitioner oe 7

finds a striking parallel in the construction given over a

_ century ago by admiralty courts to the ct of, July 20,

1790, c. 29, 1 Stat. 131° et seg. This Act contained, inter

alia, the fovexnnuer of the sections of R. S. § 4596 dealing

with the offenses of absence from duty and: desértion onthe —

part of seamen. :

Judge Story, in Cloytsnin v: Tube. Fed.. Cas. No.

2,907 (C. @, Dy Mass., 1833), held unequivocally that the

Act of 1790 merely created certain statufory offenses, and

did nofin-any wa'y impair the maritime law. ‘‘It does not

- supersede: the general doctrine of ‘the maritime law; or

repeaf it; bat merely in a given case applies’ a particular

: Tule in poeram, leaving the maritime law in all other’ cases.

in full efficiency’? (at 5 Fed. Cas. p. 1094). ara

This principle was reaffirmed by J udge Story i in Coffin —

v. Jenkins, Fed. Cas. No. 2.948 (C. C., D. Mf4ss., 1844),

wherein .fidge Story referred to the desertion proscribed

by the Act of 1790 as ‘‘an auxiliary statute desertion, dis-

tinguislfed - ‘from and independent of that, of the maritime

law . ...”’ (at 5 Fed. Cas: p. 1190). In 1883, Judge Addi-

sen Feaws in Welcome. v. The Yosemite, 18-Fed. 383, re-

' ferred to the principle enunciated: by Judge Story as ‘‘the

‘settled consiruction’’ of the Act of 1790,-reiterating that

the provisions of the Act of 1790 ‘‘were designed to sup-

~ plement the maritime law, and not to repeal or to super-

-. sede it’? (at 18 Fed. 384). To the same effect, see The Johin

_ Martin, Fed. Cas. No. 7,357 (D. C., E. D. Mich. , 1870) and

The Osceola; Fed. Cas. Nox10602 (D. C., S. D. N. Y., 1846).

The provisions of R. S. § 4529, 46 U. 8. C.,, $596, re-

ferred to by-the Court of Appeals in the case at bar are

likewise irrelevant to the question presented. This statute

| provides for the recovery of ‘‘double wages’’ by the sea-

... Man in instances where his wages have been withheld “‘with-

put sufficient cause’? beyond certain stated periods after

the termination of his engagement. ,this statute’ deals

solely with the time for payment. It does not undertake to

liquidate the gmount, if any, owing to the seaman at the

> ¢

18 | Brief on Behalf*of Petitioner °

termination of the voyage, nor does it even sugges}. limi-

tation upon the defenses, set-offs, or other claims which

may be asserted by the shipowner i in a suit by the seaman

-. express, hi tae ten eto po ake !

for wages after the termination of the voyage. It is worth

noting, ir passing, that Jair vilacsess is in itself_an effective

deterrent.to arbitrary or pricious refusal to pay a sea-

man’s wages. The denial to the shipowner of the right of

recoupment or set-off here assertdd by Petitioner is clearly

unnecessary to achieve that: purpose. ;

_ Ineonstrning RS. ¢. 4586 te “deny to Petitioner the-

right-of set-off or recoupment, the Court of Appeals-has dis-

regarded the principle enunciated by this Court in eras &

Pacifig Ry. Co. v. Abilene ‘Catton Oil Co., 204 U. S. 426, 437,

that 3 | a al aeacags

repeals by. implication are not favored, and .

. .. a statute will not be construed as taking away a

common-law right existing at the date of its enactme

unless ‘that result is imperafively requited; that is to

say, unless it be found that the pre- existing right is. .

‘so repugnant to the statute that the survival of such

right would in-effect deprive the subsequent statute of

its efficacy; in other words, render its provisions

nugatory.’’

>To the same effect i is Shaw v. Merckaets® National Bank

‘of St. Louis, 101 U..8, 557, wherein: this Court peinted out

that a statute will not be construed as altering the common

law, further than its words import, nor as amaking any inno-

vation upon the common law. ‘which it. o not fairly

When R. &. § 4596 was stincted, {The hidsenbe s right

of setoff or recoupment, as the ‘cases previously cited

demonstrate, was already firmly established in the general )

maritime law, the common law of the sea. Nothing in the

‘language of the statute, in the cirdumstances surrounding

its enactment, or in the partieular factual situation pre-

sented by the case, at bar, indicates om even suggests. that -

. Brief on Behalf of Petitioner ari

the statute in any way affects the right presently asserted

by Petitioner. The statute simply provides penal sanctions

‘for certain offenses, whereas the general maritime law es-

tablishes \the civil rights ang liabilities of the seaman and

- % shipowner, inter se.

Thus -there is ho conflict between the ocal maritime

law and the statutory law; on the contrary, they are wholly

siders the ohvions difference in underlying purpose between

these two@eparate sources of law. Viewed in this light,

their co-existence is natural, and detracts nothing from

- their mutual vitality, . Each source of law is properly opera-

_kive-in its own Sphere, and in the present caSe it is the gen-

“eral maritime law, fixingwivil rights and liabilities, which is -

Petitioner was entitled to set off or recoup its pecuniary loss

when sued by the Respondent.

_ IIL. The Court of Appeals Erred in Invoking the Doctrine

. ° That ‘‘Seamen Are Wafds of the Admiralty’’ to Sup-

_ port Its Denial of the Equitable Right of Set-off or r Re. :

“Sh coupment to the Petitioner. Sein

Certain considerations of policy appear to tbe infla-

enced the Court of Appeals’ construction of the statutes

discussed in itg opinion, and. tlfis led to the decision ulti-

mately reached. It is therefore necessary to appraise the

validity of the policy advanced by the Court of Appeals in

support of its reasoning if, as we have previously argued,

that Court has disregarded well éotablishad rules of statu-

- The major premise of the Court of Appeals’ disserta- ; ‘

‘tion on the policy underlying its decision seems to be that /

seamen are ‘‘wards of the admiralty.’’ Born of the pro-

nouncement of Justice Story in Hardgk v. Gordon, Fed.

Cas. ‘No. 6,047 (C. C., D. Maine, 1823), the ‘‘wardship”’ -

20- * Brief on Behalf of Petitioner

doctrine pervades the maritime law. Hume v. Mcore-

McCormack, 121 F. 2d 336, 337; The Arizona & Anelich,

_. 298 U.S. 110, 123; Warner v. Goltra, 293 U. S. 155, 162;

— Socony-Vacuum Oil Co. v. Smith, 205 U.-S. 424, 431.

The wardship doctrine had its origin in a bygone era

when service in the ‘merchant marine was something akin~

‘to serfdom. Its object was to mitigate by judicial solicitude .

. the intoler able conditions which attended maritime employ-

ment in the early days of American merchant shipping..

-. Petitioner deems it unnecessary to'discuss in this brief the

abstract question of whether, in this day of enlightenment

necessity for the application of tke wardsh doctrine in

the maritime law. . We may even assume,. for present pur-

poses, that in a controversy where the equities are closely

- divided between seaman and shipowner, the doctrine may

be determinative of the result. °

However, Petitioner earnestly submits that the doctrine —

can have no application whatever to the situation presented

‘by the case at bar. Here the doctrine was invoked to ex-

culpate from civil liability a seaman who had attacked with ~

a deadly weapon and seriously wounded a shipmate.. What

is more, this exculpation saddled an innocent shipowner

with financial loss almost three times as great e amount

awarded the seaman. ma

We cannot think that any conscientious guardixn would

countenance, much efi tacit encouragement to this type

of conduct by insuf&ting his ward from the civil capge- ”

quences of his eatareaped to the: detriment. of an inno-

cent party. Certaitily it is ‘not part of the protective func

tion of the guardian to prevent payment of that which is

in good conscience owing hy the ward. Nor do we think

there can reasonably be ascribed to Congress the conscious

intention of sanctioning condonation of the type of. con-

duct here exhibited by Respondent. In short, a policy which

was originally judicially formulated with the intention of

e .

—

Brief on Behalf of Petitioner \ 21

preventing overouadias of the. seaman has here been made

an instrument to achieve overreaching by thy seaman, |

At thf? point’ we would reiterate the proposition with

which this brief cormmenced: that admiralty courts have

traditionally eXercised their jurisdiction upon basic prin-

ciples of equity and natural jistice. Their determinations .

are frequently the product of the @xercise of a sound dis-

cretioi based upon these principles. In the process of de-

cision,. therefore, 4t is not objectionable per se that con-,

" siderations of policy should exert an influential force.

But when, as in this case, we have reached the point

where ‘‘policy’’ is interpreted solely in terms of unrelent~.">>

. ing, automatic adherence to a familiar maxim—‘‘seamen

are wands of the admiralty’’-in disregard of the purpose |

behindAhe poli¢y, and without regard for the fact that a

palpabte injustice is being wrought, an authoritative defi-

. nition of the bounds of the legitimate application of the

doctrine is imperatively required. Since the a

trine has become, in effect, a substantive part of the-mari-

time law, it is peculiarly appropriate that this Court de-°

emit the field of its operation to situations where its impact ~

is not offensive to furidamgatal notions of justice. Appro-

priately applied, the doctrine can subserve a justifiable pur-

_ pose ‘Consistent with the cardinal principle ur equity under- -

lying the admiralty law. Indiscriminately applied, the dec-

_ trine debases the purpose which is the sole justification for —

- its existence.

® Petitioner therefore urges this Gourt to’examine and’

correct the misapplication of. the, wardship doctrine which

was instrumental i in producing the reShlt in the case at bar.

o @

a2 " - Brief on Behalf of Petitioner

“CONCLUSION. <

For the reasons heretofore advanced, Petitioner sub-

mits that the judgments in the Courts below should be re-

versed and. the case remanded with directions to enter judg-

** ment in favor of Petitioner and against Respondent.

Respectfplly submitted, .

‘Txomas_.E. Brrny, Jr.,

a Marx D. Atspac, ..

_ °Erusen, Evans.anpSuaw, -

Counsel for Petitioner.

“-

APPENDIX TO PETITIONER'S BRIEF.

_ Textgf RB. 8. § 4596, as Athended, 46 U. 8. 0. § 701.

‘Whenever any seaman who has been lawfully engaged -

or any apprentice to the s sed service commits any of the

following offenses, he shail be punished as follows: ~

“‘Pirst. For desertion, by forfeiture of all or any part

of the clothes or effects he leaves gn board and of all or

any part of the wages or emoluments snich he has then

earned.

‘‘Second. For neglecting or refusing without reason-

able cause to join his vessel or to prceed to sea in his

vessel, or for absence without leave at any .time within

twenty-four hours: of the vessel’ s sailing from any port, -

hes

either at the commencement or during the progress of the

« voyage, or for absence at any time without leave and with-

out sufficient reason from his vessel and from his duty, not

amounting to degertion, by forfeiture from: his wages of

not more than two days’ pay or sufficient to’ defray any

expenses which shall have been properly incurred in hiring

_ a substitute.

“Third. For quitting the vessel without leave, ser

_ her arrival at the port of her delivery and before she is

_ placed in security, by forfeiture from his wages of not more

than one monthés pay.

‘‘Fourth. For willful disobedience to any lawful com-.

mand at séa, by being, at the option of the master, placed

in irons until such.disobedience shall cease, and upon ar-

rival in pert by forfeiture from his wages of not more than

four days’ pay, or, at the discretion of the court, by im-

‘prisonment , for not more than one mon

“Fifth, For continued willful Manibedianes to lawful

command orgeontinued willful neglect of duty at sea, by

| (23) 0

24 ~ Appendix to Petitioner’s Brief

being, at the option of the master, placed in irons, on bread

and water, with full rations every fifth day, until such dis-

obedience shall cease, and upon arrival in port by: forfei-

ture, for every twenty-four hours’ continuance of such dis-

obed’ence or neglect, of a sim of not more than twelve |

days’ pay, or by imprisonment for not more than three

months, at the discretion of the court. — :

‘*Sixth. ‘For assaulting any anlar. mate, pilot, engi-

neer, or staff officer, by imprisonment for not more than’

two years.: : oui

‘‘Seventh. For willftiis

amaging the vessel, or em-

bezzling or willfully damaging an the ses ss Sing

by forfeiture out of his wages of a sum eq amount to

the loss thereby sustained, and also, at the diseretion of the

court, dy imprisonment for notemore than twelve months.

‘Eighth. For ‘day act of smugglis.g for which he is .

convicted and whereby loss or damage is occasioned te the

master or owner, he shail be liable to pay such master or

owner such a sum as is sufficient to reimburse the master

or owner for such loss on damage, and the whole or any

part of his wages may be retained~in satisfaction or on

account of such liability, and he shall be liable to imprison-

ment ora period of not more than twelve months.’’:

i. 3

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