1832, 24 Fed.Cas.p. 207, p. 14,181 the court clearly set out the practical reasons in support of this rule. The Alice Blanchard, D.C., 92 F. 519. Therefore parole evidence to show that there was a change in the articles must be rejected. The only written evidence that was offered to show that there was a change in the articles with respect to the libellant was the penciled notation 'To Fire Mar. 16.' However, this notation or insertion was not attested to by a proper official as required by the articles. At most, this notation must be considered merely as a written reminder that on March 16th the libellant was first ordered to assume the duties of a fireman. As an indication that there was a change in the articles, the penciled notation is void. The Disco, D.C., 7 Fed.Cas. 729, No. 3,922.
In spite of the fact that there was no change of wage rate, or the capacity in which he served, made in the articles after libellant's name, and that there was no notation of the (so-called) promotion made in the ship's official log, the respondent contends that the libellant tacitly consented to be promoted to the position of fireman because of his failure to make any protest to the master and his acceptance of the pay of a fireman.
It is true that the articles provided that if a member of the crew is aggrieved for any reason he should make known the same to the master or officer in charge of the ship. Be that as it may, it is submitted that although the libellant had a grievance, it was not necessary for him to apprise the master of it, for the master was fully aware of the facts, it was not a situation about which he had no knowledge.
The fact that the libellant accepted the pay of a fireman does not preclude him from claiming overtime wages as a wiper; nor is the respondent aided by the fact that the libellant's total wage was in excess of that paid to another wiper. By assuming the duties of a fireman, the libellant increased his hours of work twelve hours per week or approximately fifty hours per month. For this additional time he was paid Twelve and 50/100 Dollars ($ 12.50) in addition to his Eighty-seven and 50/100 Dollars ($ 87.50) rate of wage as a wiper -- or an average of twenty five cents (.25) an hour for his overtime; whereas he should have received ninety cents (.90) an hour or approximately Forty-Five Dollars ($ 45) a month for overtime instead of Twelve and 50/100 Dollars ($ 12.50) -- a loss of approximately Thirty-Two and 50/100 Dollars ($ 32.50) per month. The ship owner will not be permitted by use of a bookkeeping subterfuge to mislead a seaman into believing that he has been given an advancement when it becomes apparent on the face of the transaction, when the smoke is cleared away, that it is not an advancement or promotion, but rather a gain to the respondent and a loss to the libellant. The situation is not altered by the fact that if the libellant is paid the amount of wages to which he claims, it will exceed the amount paid to the other firemen.
Since there was no change in the articles, either in fact or in law, the original contract between the parties was still in effect and the libellant is therefore entitled to overtime pay at the rate of ninety cents (.90) an hour for every hour of overtime put in by him. This brings us to the question: iS libellant also entitled to double wages for each day that the overtime wages have been withheld?
The seaman's right to double wages for failure of the master to pay wages due is conferred by Revised Statutes, Section 4529, 46 U.S.C.A. § 596. By this section the master or owner of a vessel is required to pay a seaman his wages within a specified time after the termination of the agreement under which he was shipped or after the time of his discharge, whichever first happens. In the case of vessels making foreign voyages, payment is required within twenty-four hours after the cargo has been discharged or within four days after the seaman has been discharged, whichever first happens. It directs that 'every master or owner who refuses or neglects to make payment in the manner' specified 'without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages * * *.'
See McCrea v. United States, 294 U.S. 23, 55 S. Ct. 291, 79 L. Ed. 735.
The question here raised is not free from difficulty and one cannot say that failure to make the payment was without 'sufficient cause.'
A consideration, therefore, of all the factors in the case persuades me that the above penalty should not be imposed.
Accordingly, judgment is entered against the respondent in the sum of One Hundred Sixty-Four Dollars ($ 164.), with costs.
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