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BENDER v. WATERMAN S.S CORP.

September 30, 1946

BENDER
v.
WATERMAN S.S. CORPORATION



The opinion of the court was delivered by: GANEY

Libellant, a seaman, brought this action to recover overtime wages in the amount of One Hundred Sixty-Four Dollars ($ 164) alleged to be due him for work performed from March 16th to September 30, 1942, in the engine department of the Steamship West Kyska, a vessel owned and operated by the respondent. He also claims two days wages of Five and 84/100 Dollars $ 5.84) for each day such payment has been withheld without sufficient cause as provided by section 4529 of the United States Revised Statutes, 46 U.S.C.A. § 596.

 Findings of Fact

 1. During the time the wages in question were earned, the libellant was a seaman in the United States Merchant Marine.

 2. Respondent is a corporation organized and existing under the laws of the State of Alabama, and at the time it was served with process, was doing business in Philadelphia, Pennsylvania.

 3. Respondent owned and operated the SS West Kyska in foreign commerce and during the time in question, the vessel, which was carrying war materials, was under time charter to the United States of America, War Shipping Administration.

 4. On February 24, 1942, libellant joined the SS West Kyska as a member of its crew, in the capacity of a wiper, signing articles at Philadelphia, Pennsylvania, for a foreign voyage of twelve months duration, to ports unknown and back to a port of discharge in the United States, for wages at the rate of Eighty seven and 50/100 Dollars ($ 87.50) per month, plus overtime at the rate of ninety cents an hour for each hour overtime, and bonus payments incidental to his services on the vessel as a wiper.

 5. Under the articles, libellant was required to work at regular hours of labor as a wiper from 8:00 A.M. to 12 noon and 1:00 P.M. to 5:00 P.M. on weekdays, and 8:00 A.M. to 12 noon on Saturdays -- a total of forty-four hours per week. All work in excess of or outside of these hours (including holidays) constituted overtime.

 6. The articles contained, inter alia, the following provisions:

 ' * * * And the said crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be at all times diligent in their respective duties, and to be obedient to the lawful commands of the said master, or of any person who shall lawfully succeed him, and of their superior officers, in everything relating to the vessel, * * * and in consideration of which service to be duly performed the said master hereby agrees to pay to said crew, as wages, the sum against their names respectively expressed * * * . And it is also agreed that if any member of the crew considers himself to be aggrieved by any breach of the agreement or otherwise, he shall represent the same to the Master or officer in charge of the ship in a quiet and orderly manner, who shall thereupon take such steps as the case may require.

 'Any erasure, interlineation, or alteration in the agreement will be void, unless attested by a Shipping Commissioner, Consul General, Consul, or Consular Agent, to be made with the consent of the persons interested.'

 7. Shortly after the voyage was under way, one of the three firemen on board the vessel was stricken ill and was unable to perform his duties. These duties were assumed by the deck engineer until the ship arrived at the Port of Spain, Trinidad.

 8. At the port of Spain it was determined that the sick fireman would be unable to continue the voyage and he was therefore removed from the vessel, which continued on her voyage without him.

 9. On or about March 16, 1942, the Chief Engineer brought the libellant to the Captain's quarters. There the master of the vessel told the libellant that he would be required to work as a fireman and that he would receive a raise in pay from Eighty seven and 50/100 Dollars ($ 87.50) per month to One Hundred Dollars ($ 100) per month, with the usual rate of ...


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