department, it was decided to request a replacement to join the vessel on its arrival at Aruba, the loading port, and during the interim to delegate the duties of the Steward to the Chief Cook and second cook, who jointly assumed the duties of the position and divided the wages.
On the receipt of the request for replacement by the Master, respondent immediately dispatched a qualified Steward by air to Aruba at a cost of $ 106.71. Libellant does not deny that respondent spent at least $ 206.71 to effect the replacement, but stoutly disputes the necessity therefor. Libellant attempts to shift the burden on respondent, contending there is no proof why libellant missed the ship; that respondent has not proven that libellant neglected or refused to join the ship, or did either without reasonable cause.
The plain unvarnished truth of the matter here is that libellant was absent without leave at the time set for sailing and he did not then, nor has he since given sufficient reason therefor. Actually, he has since stated that he failed to join the vessel because he did not wake up in time. Without appearing at the trial, he cannot now expect the Court to speculate on the validity of his absence. He was not there when he should have been there and by so absenting himself he caused the respondent to incur an expenditure in excess of the amount of his withheld wages. The expense of hiring a substitute under the circumstances here developed was not only fully justified, properly incurred, and not excessive, but within the penalty provision of the statute.
Furthermore, libellant contends that the deduction from his wages was improper because the Master did not comply with the provisions of Revised Statutes, § 4597, 46 U.S.C.A. § 702 relative to the entry of the offense in the log book.
Under circumstances involving the same principles as in the instant case, the court in The Sharon, D.C.E.D. Va., 52 F.2d 481, at page 484, held as follows: 'It will appear from the findings of fact that the entry made by the master opposite libelant's signature thereto does not comply with the statute so that the offense was not logged or authenticated in the manner specified. Since libelant had left the vessel shortly before it sailed from Atreco and his whereabouts were unknown to the master, the latter had no opportunity to furnish libelant with a copy of such entry and to have the same read over to him in accordance with the provisions of the statute. It has been earnestly urged upon the court that because of these facts the defense that libelant deserted at Atreco should be disregarded, but no sound reason tending to the furtherance of substantial justice has been advanced by libelant's counsel why the court in the exercise of the discretion reposed in it by the statute should refuse to receive evidence of libelant's desertion, notwithstanding the irregularity in the entry made by the master. Were this a situation which had been brought about in whole or in part by the arbitrary or unwarranted acts of the master or owner of the Sharon, it would be entirely proper for the court to exclude such evidence. The purpose of the statutes relied on by libelant is to protect seamen against arbitrary and unwarranted acts and oppression by the master, not to aid a seaman in taking advantage of his own wrongdoing. As was said by Judge Groner in The Ella Pierce Thurlow Case (D.C.) 18 F.2d 675, at page 676, with reference to section 596: 'The statute is intended to protect the seaman against the arbitrary and unwarranted acts of the master, but where the fault is wholly, as in this case, with the seaman, it would be an injustice to exact the penalty.' * * * '
The fault here lying wholly with the libellant, it would not only be an injustice to exact a penalty of respondent for nonpayment of wages, but it would be equally unjust to require payment by the respondent of the wages when the respondent had, with full justification, properly incurred a reasonable expense of more than twice the amount of the wages in providing a replacement, as specifically authorized by the Act.
Conclusions of Law.
1. This Court has jurisdiction of this suit and over the parties thereto.
2. Under all the facts and circumstances, the Master of the vessel and the respondent were justified in replacing libellant and in lawfully deducting from the libellant's wages the expenses incurred by the vessel in hiring a substitute.
3. That the sum of $ 98.57 was withheld from libellant's wages with full and sufficient cause under the circumstances and under the law.
4. That respondent is entitled to retain the sum of $ 98.57 on account of expenses incurred by the vessel in hiring a substitute.
5. That libellant is not entitled to penalties for such withholding.
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