to pay is in some reasonable degree morally justified, or where the demand for wages cannot be satisfied either by the owner or his interest in the ship, has been the conclusion reached with practical unanimity by the lower federal courts.'
After an extended review of the cases, we agree with Chief Judge Kirkpatrick's conclusion in Johnson v. Isbrandtsen Co., 91 F.Supp. 872, 873 (E.D.Pa.1950): 'It may be that there was and is practical unanimity in the lower federal courts so far as the general principle is concerned but it is almost impossible to reconcile the way in which the courts have applied it to the various fact situations which the cases presented.'
Libellant's claim, as we understand it, is for a penalty period of 212 days at $ 19 per day, a total claim of $ 4028. Considering the amount withheld, and the circumstances attending the deduction, we think neither the terms of the statute nor the cause of justice require any such result. There is nothing before us to indicate that respondent's action was arbitrary or unscrupulous, or that it was inspired by any other consideration than an honest, albeit mistaken, belief that it was within its rights in making the deduction. On the other hand, libellant had contracted a dangerous and virulent disease, apparently -- although we do not so decide -- through his own misconduct. Proper regard for the health and safety of the ship's company, as well as of libellant himself, dictated prompt remedial measures. Respondent's expenditure undeniably enured to libellant's own benefit. To require respondent to bear this expense out of its own pocket, and, in addition, to penalize respondent because it reasonably, withal mistakenly, believed that, in the circumstances, libellant should pay his own medical expenses, seems unduly harsh and inequitable. Respondent nevertheless violated the statute, however innocently.
'The period during which the penalty accumulates is to be determined by the equities of the particular case.' Prindes v. S.S. African Pilgrim, 266 F.2d 125, 128 (4th Cir. 1959). The equities of the instant case, in our view, limit libellant's recovery to $ 570.
Now, March 1st, 1965, it is ordered that:
1. Libellant's motion for summary judgment be, and it is, granted.
2. Judgment be, and it is, entered in favor of libellant, James W. Swain, Jr., and against respondent, Isthmian Lines, Inc., in the sum of $ 570.
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