On April 27, 1959, libellant wilfully disobeyed the lawful commands of the third mate when he came aboard, of the Chief Mate a few minutes later, and of the Captain (the Master) at 0800 and succeeding occasions in refusing to turn over these bottles or, at the least, L-4. His threats of sabotage to the vessel, which were never withdrawn or recanted also constituted 'wilful disobedience to lawful command.' As stated in The T. F. Oakes, 36 F. 442, 445-446 (C.C.D.Oregon 1888), which is cited by libellant at page 14 of his brief (Document No. 34):
'By the general maritime law a master is authorized to discharge a seaman at either a foreign or domestic port for continued disobedience or insubordination, and such discharge terminates the relation of such seaman to the vessel. * * *
'* * * a deliberate and continued attitude of insolence and defiance to his superiors, * * * is in effect disobedience and insubordination * * *.'
B. The Vice Consul was justified in approving the discharge under 48 U.S.C.A. § 682.
The Vice Consul was clearly authorized to approve and consent to the discharge of the libellant by the Captain on the information before him on May 2, 1959. See 46 U.S.C.A. § 682. The libellant was present and given an opportunity to offer evidence and testify on his own behalf. The Vice Consul complied with the applicable regulations governing such inquiries. See 22 C.F.R. 82.16; Vol. 2, § 526.2 of U.S.Foreign Service Manual (see Exhibit R-3).
In The Golden Sun, 30 F.Supp. 354, 357 (S.D.Cal.1939), the court used this language with reference to a Consul's functions under 46 U.S.C.A. § 682:
'Ordinary rules of evidence or procedure do not apply to those who exercise executive or administrative functions or functions akin to them. And when the duty to determine a fact is placed in the hands of an administrative functionary, there is no requirement that the usual incidences attending upon a judicial or quasi-judicial hearing be present. It is enough that the functionary has before him facts upon which to act. Were it otherwise, the beneficient informality of administration would be turned into formal judicature and the aim of speedy, non-technical determination of facts, which is behind all administrative law, would be subverted. (Citing authorities.)
'The statute does not require the consul to hold a hearing. Nor does the consul discharge the seaman. He merely consents to his discharge by the master 'if it appears' to him that grounds exist.
'Of course, it is assumed that the consul will not grant his consent and relieve the master of the possible penalty for wrongful discharge, unless satisfied, from the facts, that grounds exist. See: The W. F. Babcock, 2 Cir.1898, 85 F. 978, 982. If he hears witnesses and examines the entries in the ship's official log -- as the consul did in this case -- he has performed his duty. If we were to impose upon him the duty of confronting witnesses with each other and subject all to cross examination, we would turn his office into a court.
'And if this were done, no reason could be suggested for not going to the extreme of allowing the seaman complained against the right to counsel.
'The nature of the consul's intervention and the entire history of administration speak against such interpretation.'
On October 5, 1959 the deposition of the Captain (Kenneth S. McPherson) was taken de bene esse for use at trial at Mobile, Alabama (Document No. 25). During the deposition, counsel for libellant requested, for purposes of cross-examination, copies of (1) a statement made by the Master to the shipowner (Exhibit R-2B), (2) a statement he made to the Coast Guard (Exhibit L-1D), and (3) the transcript of the conference between the Captain and the libellant on April 27, 1959 (Exhibit L-1E). Copies of these documents had been previously sought (September 30, 1959) by libellant in a Motion To Produce (Document No. 13), which had not been ruled on at the time of the deposition. After the deposition was taken, counsel for libellant filed a Motion To Suppress (Document No. 16) the deposition, relying on Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957), and this Motion was denied by this court (Document No. 18). The Motion To Suppress was renewed at the start of the trial (N.T. 2-10) and respondent resisted it on the ground, among others (N.T. 11-14), that the testimony of the Captain in the deposition was completely consistent with the documents requested. See Rosenberg v. United States, 360 U.S. 367, 79 S. Ct. 1231, 3 L. Ed. 2d 1304 (1959). It was understood at the trial that the trial judge reserved ruling on the admissibility of this deposition, which was offered by respondent, as well as on the Motion to Suppress the deposition (N.T. 473 and 481).
At the time of filing its Requests for Findings of Fact and Conclusions of Law, counsel for respondent stated, at page 1 of his brief (Document No. 35) and in the letter of November 29, which has been stapled to the backer on that brief, that he was content not to have the deposition considered by the court and withdrew his offer of the deposition. Counsel for libellant, in his letter of December 1, 1961, which has been attached to the backer of his brief (Document No. 34), now states:
'Since the right of cross-examination is such a fundamental one, I do not see how the respondent can, on the one hand, deny the libellant's access to the documents which would have been used to cross-examine the Master, and on the other hand, say that the entire testimony of the Master is moot because it did not choose to rely on it in forming its Findings of Fact and Conclusions of Law.'
It is noted that during the trial libellant emphasized that he wished that 'the entire deposition' be suppressed (N.T. 8). Under these circumstances, the libellant is not entitled to a new trial or supplemental trial to offer part of the deposition which he did not offer at the trial. The deposition will not be received in evidence and has not been considered by the trial judge in making the Findings and Conclusions in this opinion. It is not necessary to consider what ruling would have been made if the respondent had not withdrawn its offer of the deposition.
Also, the trial judge has not considered the cross-examination of libellant on the last day of the trial (N.T. 432-451) in view of the second paragraph on page 1 of respondent's brief (Document No. 35) and of the objection to this testimony by libellant at the trial.
Counsel for libellant has informed the trial judge by phone on December 26, 1961, that his letter of December 1 was intended to request oral argument on the entire case and that he is not interested in presenting oral argument on the evidence questions covered by the preceding three paragraphs. It is not the custom of the trial judge to hear oral argument on requested Findings of Fact and Conclusions of Law, together with briefs, unless provision for this is made at the time of the trial. In this case, counsel for libellant made no request for such oral argument until after all such requests and briefs had been filed (N.T. 498-502a). Since both counsel will be given an opportunity to present motions for amendment of the Findings, Conclusions and Order entered with this opinion (cf. F.R.Civ.P. rule 59, 28 U.S.C.A.), and ample opportunity will be given them to present argument on such motions, the trial judge does not believe that the request for oral argument on the entire case, as made by phone on December 26, is timely.
The Conclusions of Law requested by respondent (Document No. 33) are adopted by the trial judge in addition to the Conclusions of Law in this opinion. Paragraph 1 of libellant's requested Conclusions of Law (Document No. 32) is affirmed, paragraphs 2, 4 and 5 are denied, and paragraph 3 is denied insofar as it is inconsistent with this opinion.
Respondent is entitled to the entry of judgment in its favor.