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MACKENSWORTH v. MATHIASEN'S TANKER INDUS.

December 27, 1961

Richard J. MACKENSWORTH
v.
MATHIASEN'S TANKER INDUSTRIES, INC.



The opinion of the court was delivered by: DUSEN

Libellant was employed, in accordance with foreign Shipping Articles (Exhibit L-1A), as a seaman aboard the S.S. AMERICAN MARINER, an experimental electronic research ship operated by the respondent tracking missiles on a national defense project for the United States of America.

At about 0200 on April 27, 1959, while the vessel was anchored at Sandy Island Anchorage, St. Johns, Antigua, libellant came aboard from shore leave with two bottles believed by his superiors to have contained liquor. Ships Order 1 (Exhibits R-6 and R-7) prohibited the bringing aboard or consuming on board by any member of the crew of alcoholic beverages, including 'Whiskey, wine, gin, beer, rum, etc.' The third mate on watch at the gangway (Mr. Onions) asked that the bottles be surrendered by libellant, who said 'I am taking them' and pushed past the mate to the crew area (Exhibit L-1H). *fn1" At page 12 of his deposition taken October 7, 1959 (Document No. 27), Mr. Onions testified:

 'I was still at the gangway, and he passed me with two bottles of liquor. He made no attempt at all to hide them.

 'So I said, 'Look, you can't bring liquor on board. You know the order and you know the trouble we had.'

 'And he said, 'Well, I'm bringing mine aboard,' and he brushed past me, and he went somewhere in the area there, in the 'tween-deck area, * * *.'

 Mr. Onions then sent for the Chief Mate, Mr. Golden, who testified as follows at pages 14-15 of his deposition taken October 28, 1959 (Document No. 26):

 '* * * I told Mackensworth that I wanted the liquor which he had unlawfully brought aboard the vessel. Mackensworth told me at the time that the liquor was hidden aboard ship and that I couldn't find it if I searched for it, and so on and so forth.

 'I ordered him to surrender it to me then and he stated that he would not do so. I told him I would have to tell the master of the vessel, Capt. McPherson, of the incident, if he did not do so. He told me that if I was foolish enough to bring this to Capt. McPherson's attention that certain strange and mysterious occurrences might happen aboard the ship.

 'Q And what did he tell you, for example, what strange things he was talking about?

 'A He stated generally that we might find that our anchor chain would mysteriously break, that acid had been known to weaken anchor chain links before. Secondly, that the wiring aboard the ship, and more specifically the electronic wiring might suddenly have short circuits in it. And, as I recall, he also stated that the rope yarns might be found in the rose boxes in the bilges.

 'Q. What effect would that have?

 'A If a hold or an electronics area should flood we wouldn't be able to pump the water out of the hold or the electronics area, the rope yarns would plug up the piping system in that particular area.

 'Q When he made these statements to you what did you say to him?

 'A I warned him of the seriousness of the remarks, that they could be taken as an intent to sabotage the vessel, and the vessel was Government owned and on a classified mission, and it evidently had no effect on Mr. Mackensworth.'

 The Chief Mate then searched libellant's cabin for the bottles but was unable to find them. He told libellant to stay in his cabin until notified otherwise (p. 16 of Document No. 26). At 0800, libellant was brought to the Captain's cabin by order of the Captain. The Captain warned him of the seriousness of (a) the refusal to obey a lawful command, (b) the violation of the ship's rules, and (c) his statement regarding sabotaging the vessel. The Captain then ordered libellant to produce the bottles of liquor. Libellant answered 'No comment' to everything the Captain said. The Captain told libellant 'to think it over for an hour, to go below and to return at about nine o'clock' (p. 17 of Document No. 26). Libellant failed to return at nine o'clock and the Chief Mate had to go get him. At this time, the Chief Mate, whose testimony as quoted in these findings is accepted, testified that the following occurred (pp. 18-20 of Document No. 26): *fn2"

 'A Capt. McPherson warned him again about the seriousness of the charges that had been made against him, advised him to speak up in his own behalf, at least, and to produce the liquor which he had admitted bringing aboard the vessel, and if he did not obey a lawful command think of the consequences of his act.

 'Q Did he state what those consequences would be to Mackensworth?

 'A Yes, sir. He warned him that if he continued to disobey a lawful command it would result in being confined in irons at the master's option, on bread and water, and a full meal every fourth day, if this became necessary.

 'Q What, if anything, did Mackensworth say in answer to the captain's comments?

 'A He just kept on with his statements of, 'No comment,' or, 'I refuse to answer,' and would not give the captain any answers to any of his questions.

 'Q Did Mackensworth state at that time why he refused to answer?

 'A I believe he stated something to the effect that on the ground that it would tend to incriminate ...


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