Circuit Court of Appeals, Ninth Circuit.
S. T. Hogevoll, of San Francisco, Cal., for plaintiff in error.
Irving H. Frank and Nathan H. Frank, both of San Francisco, Cal., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
HUNT, Circuit Judge (after stating the facts as above).
Plaintiff in error contends that in suing for two days' pay for each day's delay in payment of wages claimed to be due to him as an able seaman (section 4529, Rev. St. [Comp. St. § 8320]) his action is for a penalty, and therefore governed by section 1047, Revised Statutes (Comp. St. § 1712), which provides that no suit for any penalty accruing under the laws of the United States shall be maintained except where otherwise specially provided, unless the same is commenced within five years from the time when the penalty accrued.
*546 Section 4529 of the Revised Statutes provides: "* * * 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 nature of that statute (section 4529), whether it is remedial or penal, has been considered by this and other courts, which have held that sums recoverable under its provisions are treated as wages compensation to seamen, rather than punishment of the master. Gerber v. Spencer (C. C. A.) 278 F. 886; Cox v. Lykes Brothers, 237 N.Y. 376, 143 N.E. 226.
Plaintiff, having availed himself of the right given by the Admiralty Act to bring his action in the law court, is bound to conform to the statutes which by the lex fori regulate the means to enforce the right. Michigan Ins. Bank v. Eldred, 130 U.S. 693, 9 S. Ct. 690, 32 L. Ed. 1080; Bonam v. Southern Menhaden Corporation (D. C.) 284 F. 360; McGrath v. Panama R. Co. (C. C. A.) 298 F. 303.
It is said that plaintiff below was shipped in violation of sections 8300, Compiled Statutes (R. S. § 4511, as amended by Act of March 3, 1897), and 8306 (R. S. § 4516, as amended by Act of December 21, 1898, and Act of March 4, 1915). Section 8300 requires a master, before proceeding on a voyage, to make an agreement in writing or print with every seaman whom he carries as one of the crew, which shall contain, among other things, number and description of the crew, specifying their respective employments, the capacity in which each seaman is to serve, and the amount of wages each seaman is to receive. Section 8306 provides that in case of desertion or casualty resulting in the loss of seamen, the master must ship, if obtainable, a number equal to the number of those of whose services he has been deprived, who must be of the same or higher grade or rating with those whose places they fill. But as the plaintiff Buckley was employed as a steward's helper, by section 8392 of the Compiled Statutes he is deemed and taken to be a seaman, and therefore he shows by his own pleading that the statutes cited (sections 8300 and 8306) were complied with when, on May 29, 1921, he signed the shipping articles. We see no reason and find no authority for holding that when his position was changed from that of seaman to an able seaman, it was required that he sign again.
Inasmuch as the claim for the two days' pay under section 4529, supra, is for extra wages as incidental to the wages proper, it stands upon no different basis than does the claim for wages proper. The letter of the first officer can only be regarded as a recommendation of plaintiff as a seaman. By no possibility can it be held to be an acknowledgment of the debt in writing.
We are constrained to decide that the remedy plaintiff seeks is barred by the statute of limitations.
The judgment is affirmed.
