[248 U.S. 205, 206] Mr. Silas Blake Axtell, of New York City, for petitioners.
[248 U.S. 205, 207] Mr. Roscoe H. Hupper, of New York City, for respondents.
[248 U.S. 205, 210] Mr. Assistant Attorney General Brown, for the United States.
Mr. Justice DAY delivered the opinion of the court.
These cases were considered together in the courts below and may be disposed of in like manner here.
The facts are:
In the first case Paul Neilson and nine other seamen sue for the recovery of wages claimed to be due them from the bark Rhine. It appears that they shipped on the American bark Rhine at Buenos Ayres, October 7, 1916, for a voyage to New York, at the rate of $25 per month. It is stipulated that the shipping of seamen on sailing vessels at Buenos Ayres is controlled by certain shipping masters, to one of whom the libelants, in ac cordance [248 U.S. 205, 212] with the usual custom and as a means of securing employment, signed a receipt or advance note for one month's wages. These advance notes were presented to the American Vice-Consul at Buenos Ayres before the libelants signed the articles, were by him noted on the articles and, in the presence of the libelants, directed to be paid on account of the wages of the respective libelants. It was further stipulated that in directing the master of the Rhine to honor such advance notes, the Consul was acting in accordance with section 237 of the Consular Regulations of the United States. When the bark arrived at New York the libelants were paid the wages earned, less the $25 advanced. They now seek to recover the sum thus deducted, by virtue of the terms of section 10 (a), c. 121, Act June 26, 1884, 23 Stat. 55, as amended by Act March 4, 1915, c. 153, 11, 38 Stat. 1168 (Comp. St. 1916, 8323), entitled an 'Act to promote the welfare of American seamen in the merchant marine of the United States,' upon the theory that such advances are unlawful and of no effect.
The facts in relation to the case of the barkentine Windrush differ from the above only in respect of the fact that the advance notes are not in evidence, but are noted on the articles.
The District Court decided in favor of the libelants. 244 Fed. 833. The Circuit Court of Appeals reversed the decrees. 250 Fed. 180. The cases are here on writs of certiorari.
The section of the statute is the same as that involved in the case of The Talus (No. 392) 248 U.S. 185 , 39 Sup. Ct. 84, just decided. The difference is that the advances were made by the master of an American vessel in a South American port, whereas in The Talus the advancements were made to foreign seamen in a British port. The same general consideration as to the interpretation of the statute which controlled in the decision of the case of The Talus are applicable here and need not be repeated. $That American vessels might be controlled by con gressional [248 U.S. 205, 213] legislation as to contracts made in foreign ports may, for present purposes at least, be conceded. It appears that only by compliance with the local custom of obtaining seamen through agents can American vessels obtain seamen in South American ports. This is greatly to be deplored, and the custom is one which works much hardship to a worthy class. But we are unable to discover that in passing this statute Congress intended to place American shipping at the great disadvantage of this inability to obtain seamen when compared with the vessels of other nations which are manned by complying with local usage.
The statute itself denies clearance papers to vessels violating its terms. This provision could only apply to domestic ports and is another evidence of the intent of Congress to legislate as to advances made in our own ports.
Mr. Justice McKENNA, with whom concur Mr. Justice HOLMES, Mr. Justice BRANDEIS, and Mr. Justice CLARKE, dissenting.
These cases were submitted with Nos. 361 and 392 ( 248 U.S. 182, 185 , 39 S. Sup. Ct. 83, 84, 200), and, like them, are proceedings in admiralty under the Seamen's Act of 1915, 38 Stat. 1165-1168.
The facts are set out in the opinion of the court. In these cases, as in others, we are constrained to dissent. The principle of decision should be, we think, that declared in our dissent in The Talus, 248 U.S. 185 , 39 Sup. Ct. 84. The facts of these cases put more tension upon it, that is, an adhesion to the words of the statute as determinative of its purpose rather than some of its consequences. We have here the somewhat appealing force of a picture [248 U.S. 205, 214] of an American ship only able to escape practical internment in a foreign port by a violation of the law, if it be as we have declared it. And this under the sanction of the United States Consul acting under the following regulation of the Department of State:
It hence follows that we are of opinion the judgment of the Circuit Court of Appeals in each case should be reversed and that of the District Court affirmed.
[ Footnote 1 ] '236. No Advance Wages.-Except in case of whaling vessels, it is not lawful to pay any seaman wages before leaving the port at which such seaman may be engaged in advance of the time when he has actually earned the same, or to pay such advance wages to any other person, or to pay to any one except an officer authorized by Act of Congress to collect fees for such service, any remuneration for the shipment of a seaman. If any such advance wages or remuneration shall have been paid or contracted for the Consul, in making up the account of wages due the seaman upon his discharge, will disregard such advance payment or agreement and award to the seaman the amount to which he would be entitled if no such payment or agreement had been made. Nor should Consuls permit the statute to be evaded indirectly, as by part payment in advance and then stating rate of wages too small. R. S. Secs. 4532, 4533; 23 Stat. L. 55, Sec. 10; 24 Id. 80, Sec. 3; 27 Fed. Rep. 764.'