The opinion of the court was delivered by: FOLLMER
The libellant here is seeking the imposition of the so-called 'two for one' penalty provisions of the Revised Statutes, § 4529, 46 U.S.C.A. § 596. He claims that certain of his wages were wrongfully withheld following his failure to rejoin the S.S. 'Baltimore Trader' at Shellhaven, England, on March 11, 1948.
Respondent has averred that any sums due libellant were lawfully and properly forfeited under Revised Statutes, § 4596 et seq., 46 U.S.C.A. § 701 et seq., and applied in an amount 'sufficient to defray any expenses which shall have been properly incurred in hiring a substitute' due to libellant's actions on or about March 10, 1948, 'for neglecting or refusing without reasonable cause to join his vessel or to proceed 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, either at the commencement or during the progress of the voyage, or for absence at any time without leave and without sufficient reason from his vessel and from his duty, * * *.'
1. The libellant is Mack V. McAllister.
2. The respondent is American Trading and Production Corporation.
3. At all times mentioned herein, the respondent operated and controlled the S. S. 'Baltimore Trader,' engaged in foreign commerce.
4. Libellant signed shipping articles as a member of the crew of the S. S. 'Baltimore Trader' on February 17, 1948, in the capacity of steward and was employed on board that vessel in the aforesaid capacity from February 17, 1948, to noontime of March 11, 1948.
5. The vessel proceeded from Philadelphia to Aruba, Netherlands West Indies, to obtain a cargo of oil and then proceeded to Shellhaven, England, arriving March 10, 1948, whereupon it discharged its entire cargo.
6. Upon clearance by Customs, and consultation with the vessel's London Agents concerning the rate of cargo discharge, the Master set the time for the vessel's departure from Shellhaven at 12:00 o'clock noon, March 11, 1948.
7. The crew was given shore leave, and the Chief Mate posted the notice of departure on the liberty board by the vessel's gangway about 1:30 o'clock p.m. on March 10, 1948; this notice read, 'Liberty expires 12:00 o'clock noon, March 11, 1948.'
8. The Purser also posted like notices for sailing in the officers' and crew's mess halls.
9. A few minutes before 2:30 o'clock p.m. on March 10, 1948, libellant received a pay draw aboard the vessel from the Purser.
10. About 2:30 o'clock p.m. on March 10, 1948, the Purser saw the libellant go ashore by ...