solely from his own wilful misconduct, W. L. Steed, 33 F.Supp. 353, 1940 Am.Mar.Cas. 406 (E.D.Pa.1940), even under the more favorable (to the seaman) test of 'wilful misconduct' which is applied in maintenance and cure cases. See The Quaker City, 1 F.Supp. 840 (E.D.Pa.1931); Bentley, supra, 203 F.2d pp. 273-274.
Under Liberian law, therefore, libelant would not have been entitled to recover maintenance and cure.
CLAIM FOR WAGES AND PENALTIES
There is no dispute that libelant was paid an advance of $ 40 against wages to be earned, and that that amount was deducted when he signed off the vessel on May 16, 1958. Libelant seeks to recover that amount plus interest from the date of the withholding and, in addition, he seeks to recover penalties at the rate of two days' pay for each day the amount was withheld.
The claim for the portion of the wages withheld, and for the penalties, are made, respectively, under the provisions of 46 U.S.C.A. § 599 and § 596 which provide, so far as relevant here, as follows:
'599(a) It shall be unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same * * *. The payment of such advance wages or allotment, whether made within or without the United States or territory subject to the jurisdiction thereof, shall in no case except as herein provided absolve the vessel or the master or the owner thereof from the full payment of wages after the same shall have been actually earned, and shall be no defense to a libel suit or action for the recovery of such wages. * * *' '596 The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sumequal to one-third part of the balance due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court * * *.'
The prohibition against advances and the withholding of wages is applicable to foreign vessels while in waters of the United States and 'only such deductions and set-offs for derelictions in the performance of * * * duties shall be allowed against * * * wages as are recognized in the statutes.' Isbrandtsen Co. v. Johnson, 343 U.S. 779, 787, 72 S. Ct. 1011, 1017, 96 L. Ed. 1294 (1952). The advance here made, even though at the request of the seaman and for his benefit, is not one of the permissible deductions and he is entitled to recover the amount withheld. Korthinos v. Niarchos, 175 F.2d 730 (4th Cir. 1949); Mavromatis v. United Greek Shipowners Corp., 179 F.2d 310 (1st Cir. 1949); Gonzales v. Isthmian S.S. Co., 1958 Am.Mar.Cas. 97 (E.D.Pa.1957).
The withholding here was to recoup the amount of the advance. This is not 'sufficient cause' within the meaning of the statute, Collie v. Fergusson, 281 U.S. 52, 50 S. Ct. 189, 74 L. Ed. 696 (1930); Korthinos v. Niarchos, supra, and subjects the shipowner to the imposition of the penalties prescribed in § 596. Mavromatis v. United Greek Shipowners Corp., supra; Gonzales v. Isthmian S.S. Co., supra.
Although the penalty is applicable, its duration seems to be committed to the discretion of the trial judge to tailor to the equities of the particular case. Here the advance was made at the request of libelant to enable him to get by until he signed aboard the vessel. The amount of it, in relation to his wages, was relatively small and, therefore, created no great likelihood of contravening the policy underlying the statute, i.e. to prevent the seaman from placing himself in bondage to the shipowner for long periods of time. When he was discharged from the vessel in May 1958, libelant made no request for the payment of the amount so withheld and, indeed, in the original libel filed in this court on July 24, 1959, he made no claim for the amount. A motion to amend the libel to include such wage claim was filed March 31, 1960. I do not mean to imply that demand and refusal is a requisite to the imposition of the penalty, but under these circumstances, the absence of demand is a factor I will consider in mitigation. I will, therefore, assess the penalty commencing with the date of the filing of the motion to amend the libel to claim the withheld wages. Were it not for the congestion of our court calendar and were it not for an interlocutory appeal, suggested, in part at least, by the late revered Circuit Judge Goodrich, sitting specially as a judge of the District Court, this matter should have been resolved in approximately 1 1/2 years. I will, therefore, limit the period of the penalty to 550 days at the double daily wage rate of $ 8 or a total of $ 4,400. This is a heavy penalty for withholding $ 40 but it is one which might well have been avoided by a tender of the withheld amount to libelant or by a payment into court (see Korthinos v. Niarchos, supra.) No such tender or payment was ever made and, consequently, no reason appears to lessen the impact of the apparently harsh result.
And now, this 23rd day of December, 1964, it is ordered and decreed that judgment be entered in favor of libelant, Theodoros Kontos, against respondents, SS SOPHIE C., Excelsior Shipping Co., Ltd. and Southern Star Shipping Co., Inc., in the sum of Forty ($ 40) Dollars, plus interest from May 16, 1958, and in the further sum of Four Thousand Four Hundred ($ 4,400) Dollars as penalty.
It is further ordered and decreed that judgment be entered in favor of the respondents on libelant's claim for damages and for maintenance and cure.