absolute right to discharge him with or without cause. Lombard S.S. Co., Limited, v. Anderson, 4 Cir., 134 F. 568, 569.
The issue immediately presented is whether the third letter of instructions, received by the libellant on December 26, 1947, was an offer of a contract for the duration of the voyage to Italy mentioned therein, or whether it was a routine assignment under and pursuant to the original hiring at will.
I think that this was just a letter of assignment and nothing more, that it was a routine assignment and not an offer of a contract for the duration of the voyage to Italy.
To bear his burden of proof in the absence of an express offer of employment, the libellant must show that the inference of such an offer in this letter is clear and unequivocal, and that the facts and circumstances exclude all reasonable doubt. Jones v. Davis, 13 Fed.Cas.No. 7,460. That is, the libellant must prove by a preponderance of the evidence that this letter was an offer of employment.
The letter is not very definite and lacks that specificity that would be necessary for the libellant to prove clearly that it is an offer of employment for the duration of the voyage rather than an assignment of duty.
While it is true that this letter recognized the libellant as master of the 'James Roy Wells' and that one could reasonable infer that the respondent expected to retain the libellant as master, it is equally true that the libellant could not have hired a crew of have taken this vessel to Italy or anywhere else without such a letter of instructions.
The libellant had just returned from Holland when he received this letter. It informed him of his next voyage- his cargo, destination, the agents to contact, suggestions as to fuel, water and ballast, and other general instructions for this impending voyage. It did not enclose a copy of the Charter Party, nor was there any evidence that the libellant received this promised copy before he was relieved of his command. Finally, the letter closed by telling when to end his present voyage.
There is nothing in this letter that relates to tenure of employment. On the contrary, it appears to be written on the premise that the libellant was then employed by the respondent and that this voyage to Italy was the libellant's next duty assignment pursuant to this employment.
Furthermore, under the facts that were known by the respondent when the libellant was relieved of his command I think the respondent was justified in acting as it did.
The master of a ship is the agent of the ship's owner. As such, he is entrusted with great authority over the command, navigation and operation of the vessel, especially when the vessel is in foreign waters. In keeping with this responsibility, he must act with utmost good faith, loyalty and fidelity to the owner in all his dealings affecting the vessel. 48 Am.Jur. 84.
This duty of faith, loyalty and fidelity requires him to report all moneys received by him in his capacity as master of the vessel. Hansen v. Barnard, 2 Cir., 270 F. 163; Robinson v. Hinckley, 20 Fed.Cas.No. 11,954. And the fraudulent failure to report all receipts works a forfeiture of his right to compensation. Hansen v. Barnard, supra.
The respondent discovered that the libellant reported receiving 2,490 rupees ($ 750) for gunny sacks and grain fittings when he had actually received 4,880 rupees ($ 1,469.88).
When the libellant refused to attempt to explain that discrepancy, the respondent had no alternative, in looking after its own welfare, but to discharge him. Under those circumstances, the respondent was justified in doing what it did and it had the right to retain the libellant's vacation bonus and to apply it against the shortage in the libellant's account.
The libellant's belated explanation of the discrepancy, conveyed to the respondent for the first time at the trial of the case in Court, is far from convincing. Without passing on the credibility of the libellant's belated explanation of the discrepancy, it seems to me that, in all fairness to the respondent, this explanation comes too late to affect the rights of the parties and to penalize the respondent for having acted as it did under the circumstances.
For the reasons expressed above, the libellant cannot recover any wages, subsistence or vacation bonus.
Conclusions of Law.
1. This Court has jurisdiction of this case.
2. The libellant failed to carry his burden of proving that the letter of instructions dated December 19, 1947 and received by the libellant on December 19, 1947 was an offer of employment for the duration of the voyage to Italy mentioned therein.
3. Therefore, this letter of instructions dated December 19, 1947 was not such an offer of employment, but was a routine assignment of duty under and pursuant to his employment at will.
4. By the libellant's failure to report all moneys received on the voyage to India, the respondent was justified in discharging the libellant on January 7, 1948, and in retaining and applying the libellant's accrued vacation bonus to reduce the shortage in the libellant's financial report.
5. Judgment is hereby entered for the respondent.
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