U.S. Supreme Court MCCREA v. U. S., 294 U.S. 23 (1935)

[Page 294 U.S. 23, 28]

some other vessel bound to the port from which he was originally shipped . ...'

As the government sought no review, either in the Court of Appeals or in this Court, of the determination of the District Court that petitioner was entitled to demand his discharge and payment of his earned wages because of the failure to make proper division of the crew into watches, there is no occasion for us to pass on that question. Nor do we decide the further one, which the petitioner raises, whether a seaman is entitled to claim the benefits of section 4583 by reason of a failure to provide equal watches as directed by section 2 of the Seamen's Act. Laying aside that question and possible doubts as to the correct construction of other parts of section 4583, it is plain that by its provisions the consul or consular agent is made the arbiter of the seaman's demand for the month's extra wages and for other relief which it affords, and that his favorable action upon the demand and his discharge of the seaman are prerequisite to any recovery under it. As in the present case, the consul refused to give petitioner his discharge and to certify that he was entitled to the relief demanded, his recovery under that section was rightly denied by the courts below.

2. The seaman's right to double wages for failure of the master to pay wages due is conferred by R.S. 4529, as amended. [Footnote 1]

[Page 294 U.S. 23, 32]

wages accrues, if at all, from the end of the period within which payment should have been made. It must be determined by the happening of an event within the period, failure to pay wages without sufficient cause. The statute affords a definite and reasonable procedure by which the seaman may establish his right to recover double pay where his wages are unreasonably withheld. But it affords no basis for recovery if, by his own conduct, he precludes compliance with it by the master or owner. He cannot afterward impose the liability by the mere expedient of bringing suit upon it.

3. Following the trial of the cause in the District Court, a decree was entered allowing recovery for loss of petitioner's clothing, for wages, and double wages. After the reargument, a second decree was entered which did not in terms vacate or modify the first one, but which granted recovery as in its first decree, except for double wages. After the appeal was taken to the Circuit Court of Appeals, the District Court amended the second decree by the addition of a direction that the first decree be vacated.

The application for rehearing was seasonably made and by granting it the District Court retained jurisdiction of the case. The decree entered on the rehearing thus became the final decree in the cause and superseded the earlier one, as the court below held. Barrell v. Tilton, 119 U.S. 637, 643, 7 S.Ct. 332; see Wolff Packing Co. v. Industrial Court, , 45 S.Ct. 441.

It is unnecessary to inquire whether, after the appeal was taken, the District Court retained jurisdiction to correct its own records by vacating the first decree, which had already become functus officio. See Hovey v. McDonald, 109 U.S. 150, 157, 158 S., 3 S.Ct. 136.

Affirmed. Footnotes

[Footnote *] Motion for reargument denied , 55 S.Ct. 443.

Footnote 1 Sec. 4529. 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 sum equal 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; but this section shall not apply to masters or owners of any vessel the seamen of which are entitled to share in the profits of the cruise or voyage. 46 U.S.C. 596 (46 USCA 596).