(dissenting)—This is an action brought by the respondents, who were plaintiffs below, to recover upon a written contract for services performed. The cause was tried in the court of its origin by a jury, who found that the plaintiffs and their assignors had earned under the contract sums aggregating $25,613.76, and judgment was entered in their favor for these sums. This court, in the foregoing opinion, does not question the finding of the jury as to the amount earned by the plaintiffs under the contract, but finds, contrary to the finding of the jury, that there was a breach of the contract, and as matter of law concludes that because of the breach there has been a forfeiture of the sums earned, and directs that there be no recovery. The sum stated represents practically a year’s earnings of nearly one hundred men, and the effect of the holding is to take from them this considerable sum and vest it in the defendant, their employer. I can but believe the result is due to the application of erroneous principles of law, and I feel justified, because of the importance of the case to the plaintiffs, in stating, although somewhat at length, the grounds for my belief.
In the first place, I think the majority have placed a construction upon the contract that it cannot legally bear. It is held that the contract is one and entire, that it is in its effect the same contract that a seaman enters into when he binds himself to a vessel to serve as a seaman thereon for a stated period, or for a given voyage, and that the same rigorous rules are applicable thereto that are applicable to the ordinary seaman’s contract. With this I cannot agree. As shown by the opinion, the contract consisted of two parts, the one entirely separable and distinct from the other. The first part consisted of ordinary shipping articles by *174which the plaintiffs agreed to act as seamen in sailing the vessel, “Abner Coburn, ” from the port of Seattle in the state of Washington to the defendant’s cannery, on Behring Sea, in the territory of Alaska, and to act as seamen in sailing the vessel on its return voyage at a later period. In the second part of the contract, they agreed to catch salmon for the defendant in the waters adjacent to the cannery during the period of the salmon run. For the performance of the first part of the contract, they were each to receive certain stated and definite sums, measured by the capacity in which they acted; and for the performance of the second part, they were to be paid a price for the number of fish caught and delivered, the price varying according to the variety of the fish.
The first part of the agreement may be essentially maritime in its nature, and it may be that the ordinary shipping articles were necessary to be entered into before its performance was entered upon. But it is clear to my mind that the second part of the agreement was in no sense maritime as that term is understood in admiralty. No shipping articles were necessary to be entered into by any one as a condition precedent to its performance. In fact, the present record shows that a number of persons engaged in fishing along with the plaintiffs who did not and who were not asked to sign the shipping articles. But more than this, the business from its nature cannot be maritime. In a maritime contract the person agrees to serve as a seaman on a vessel engaged in commerce as a common carrier for a given period of time or for a given voyage. In the other, the work is not performed on a common carrier. The fishing is done in small boats operated by the fishermen themselves; the boat engages in no form of trade, and the work involves no element of public interest, but is purely of a private nature. It seems to *175me to follow conclusively from these differences that the breach of one part of the contract cannot be a breach of the other, and if the majority are correct in holding that there was a breach of the contract to navigate the vessel, and that because of the breach the plaintiffs have forfeited their right to the compensation agreed to be paid for that service, they are in error in holding that the breach operates as a forfeiture of their earnings under the second part of the contract.
The cases cited by the majority, as I read them, do not sustain the contrary conclusion. In none of them was the particular question raised or discussed. The cases are, for the most part, all instances where the plaintiffs, suing on the contracts, brought their suits in the admiralty courts, and where objection was made to the jurisdiction of the court because the contracts were not maritime in character. The jurisdiction was sustained on the theory that a contract, maritime in part, carries its incidentals with it, and the latter though non-maritime will be heard and decided. It was not, however, decided in any of the cases that the rules applicable to the maritime part of the contract will be applied in determining the issues not maritime, much less was it decided that a breach of the maritime part of the contract, although sufficient to work a forfeiture of wages earned thereunder, would work a forfeiture of the earnings under that part of the contract essentially non-maritime.
In the next place, I think the majority have given an unwarranted effect to the so-called surveys made of the vessel while it was at anchor at the cannery in Behring Sea. It is true that the Federal statute provides for a survey of a vessel when a majority of the crew may deem it unseaworthy for any cause, and further provides that if upon such a survey the vessel is pro*176nounced seaworthy any seaman who refuses to proceed on the voyage shall forfeit all wages that may be due him. But the statute also provides the manner of selecting the surveyors, and enough appears in the majority opinion to show that the statute was not in this respect even substantially pursued. The survey therefore had no official sanction. Legally, the findings of the surveyors were nothing more than the expressed opinions of private individuals. I am aware that the majority say that these surveys “were undoubtedly disinterested and competent, fairly made and procured in good faith by the” defendant; but, conceding that the evidence justified the statement, I am unable to understand just what it signifies. The defendant is claiming the right in virtue of a statute to forfeit to itself a large sum of ¡money which belongs to the plaintiffs, and certainly it is no hardship to say that, before it is permitted to do so, it show a strict compliance with the statute. Forfeitures are never favored. It is only where the inflexible rules of law will permit of no other course that they will be granted. Here, I may repeat, there was no compliance nor attempted compliance with the statute. Since the right of forfeiture, in so far as this branch of the case is involved, depends upon the statute, I can but think the majority in error in holding that the surveys justify an adjudication of forfeiture.
And here I may properly notice the further holding that seamen are not authorized to determine for themselves the question of the seaworthiness of their ship. This is not an absolute rule. Its application depends upon circumstances. If the vessel is in a port where the ordinary processes of government are functioning, seamen who believe the vessel in which they are required to sail is unseaworthv, are by statute required to demand a survey, and if the survey is made in ac*177cordanee with the terms of the statute, the seamen are concluded by it. But the rule has no application to conditions such as were here shown. The vessel was on a bleak, uninhabited coast, hundreds of miles from any place where organized form of government existed. Contrary to the statement in the majority opinion, the record does show, that there was no judge of the United States district court, or justice of the peace residing at Libbyville to whom application for a survey could be made. One of the defendant’s own witnesses expressly testifies that there were no others at the cannery except the cannery people. By the terms of the statute, the officers named are the only persons authorized to appoint surveyors. To apply for a survey would have been a useless procedure on the part of the seamen, and seamen, no more than any other class of persons, are required to do useless things in order to preserve their rights. Their rights, therefore, to determine the seaworthiness of the vessel stood as they did stand prior to the enactment of the statute, and what these rights were is stated by Judge Curtis in United States v. Nye, Fed. Cas. No. 15,906, in the following language:
“I think the correct rule is, that after the men have rendered themselves on board, pursuant to their contract, and before the voyage is begun, they may lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe and do believe the vessel to be unseaworthy. But the presumption is that the vessel was seaworthy; and the seamen must prove that they acted in good faith and upon reasonable grounds of belief that the ship was not in a fit condition to go to sea by reason of unseaworthiness. If they prove this, they are justified in their refusal. ’ ’
•Again, I am unable to agree with the majority in the assumption that the facts of the case are before us for decision. These facts are important. For example, it is found on conflicting testimony that the agreement *178made at the cannery after the close of the work to transport the crew from the cannery to Unalaska, and from Unalaska to Seattle on a seaworthy vessel at the expense of the defendant, was not authorized by the defendant or any of its authorized agents; it is found on conflicting testimony that the seamen wrongfully conspired together for the purpose o.f bringing about an abandonment of the ship, or the enterprise on which the ship was engaged; it is found on conflicting testimony that the ship, by the repairs made upon it by the carpenter while at the cannery placed the vessel in a seaworthy condition; it is found on conflicting testimony that the labor certificates, showing the amount of the earnings, were issued under coercion; and finally it is found that the plaintiffs deserted and abandoned the ship at a remote point where other men could not be obtained, and that because of these and other facts, the men became deserters.
In my opinion these were facts which this court is without power to determine on conflicting testimony; that they were questions for the jury in the court below, and that their findings on them are conclusive upon this court. As stated in the majority opinion, the United States judicial code does not give exclusive jurisdiction to the admiralty courts in maritime causes. The act saves “to suitors in all cases the right of a common law remedy where the common law is competent to give it.” There is no question here that the common law can give the remedy. If this.were not true this court should dispiiss the action for want of jurisdiction, not reverse it and direct a judgment for the defendant. Since the act saves to suitors the common law remedy, it saves to them the remedy as it is usually administered at common law. One of the oldest of these remedies is to have the facts of the controversy determined by a jury, and I can conceive of no reason, *179certainly none is stated by the majority, why the plaintiffs did not have the same right in this cause as they would have in any other cause triable in a common law court, to have the facts of the cause determined by a jury. The conclusion reached by the majority on the question is, moreover, contrary to our holdings in the cases of Larson v. Alaska Steamship Co., 96 Wash. 665, 165 Pac. 880, L. R. A. 1917F 671, and Sandanger v. Carlisle Packing Co., 112 Wash. 480, 192 Pac. 1005. These were actions for personal injuries suffered by seamen, due to defects in the equipment of the vessels on which they were sailing. One of the questions submitted in each of the cases was whether the remedy of admiralty or the remedy of the common law should be applied. The court held in each case, “that the common law courts of a state have jurisdiction concurrent with the Federal courts when proceeding in personam, and that the state court will grant the relief that a common law court would have granted had the case been originally triable in such court,” and applied the remedy of the common law, although the remedy differed from that afforded in admiralty. The majority do not notice these cases, but I can see no way in which they can be reconciled with the rule now announced, namely, that the saving clause in the statute confers only “an alternative right to sue in common law actions in the state courts,” and “that the reciprocal rights, dirties and obligations of the parties are governed by the rules and principles of admiralty law. ’ ’
As I have before indicated, the ultimate question for the determination of the jury was whether or not the plaintiffs had reasonable cause to believe that the vessel was unseaworthy at the time they refused to return upon her. This issue they found in favor of the plain*180tiffs, and in my opinion, there was abundant evidence in the record to justify the finding. The vessel was old, having been built in the year 1882. She was acquired by the defendant in 1913. Prior to that time she was commissioned as a merchant vessel, although for a year previous she had lain inactive in the harbor of San Francisco. After the defendant acquired her, she was not used in the merchant service, but was used solely for carrying supplies and fishermen to the different canneries operated by the defendant, making but a single trip each year. In 1917, while being sailed to a cannery, she sprang a leak in the first gale encountered, and was brought back, temporarily repaired, and taken to the cannery in tow. In 1918, she encountered ice on her trip, and the evidence of the carpenter is that on this occasion she received severe strains. On the trip here concerned she also sprang a leak at the first gale encountered. This leak was, to my mind, much more serious than the majority seem to consider it. Water poured into the hold of the vessel in sufficient quantities to cause it to rise therein at the rate of ten inches an hour. The vessel was over three hundred feet in length, with a beam of thirty-eight feet, and it requires no very intricate mathematical calculation to show that the quantity was considerable. It was sufficient at any rate to thoroughly frighten the crew. Many of these were men who, in their earlier years, had followed the sea, and men who would know a dangerous leak in a vessel as well as would any other person. No ordinary leak would cause them concern, and the fact that they were alarmed is in itself evidence that the leak was unusual and dangerous.
I think, too, that the evidence fairly shows that the leak was sufficiently alarming to cause the master of the vessel concern, despite his subsequent contrary assertions. In his radiograms sent to the owners at *181the time, he mentioned not only the fact that the vessel was leaking, bnt the rate per hour of the leak, and asked for instructions. Manifestly, if he had regarded it as nothing but the usual and expected, it would not have occurred to him to mention the fact. It is true that the pumps took care of the water during the remainder of the voyage, but to do this they were kept in operation continuously. Moreover, the journey was made in fair weather. What would have happened had another gale been encountered can only be conjectured. I am aware that it is said in the majority opinion, as an argument that the leak was not dangerous, that “the power pumps were always adequate to take care of the water and it was never necessary to use the hand pumps.” But I can find nothing in the evidence that indicates that the vessel had hand pumps, except as these pumps might be so called. The captain’s testimony, concerning the pumps was that the vessel had no pumps other than the power pumps, but that these were so arranged that they could be used as hand pumps, if the power failed.
I cannot but feel, also, that the majority have minimized the condition the vessel was found to be in after she had reached her destination and was unloaded. The carpenter testifies that he found two open butts on the port side of the vessel, and an open seam and an open butt on the starboard side. These he remedied by recaulking. But he testifies that the most troublesome condition of the vessel arose from an injury to the parts surrounding the rudder post. His description of the affected parts is given in terms too nautical to convey to my mind any very definite idea as to what the parts were, but it can be gathered from his testimony that on some such part the fastenings had given way leaving the rudder post loose; that the loosened parts would open as strain was put upon the rudder, *182letting water enter into the hold of the vessel. These defects he conld remedy only partially. The loosed parts of the vessel he could not refasten; the best he could do was to fill the openings with oakum and hold it in place by tacking over it sheet lead, which would only partially stop the leak.
When the vessel returned to Seattle, even Lloyds surveyor became alarmed at her condition and insisted that she be overhauled. In this work it was found that some of the heavy timbers forming the keelson had become so far decayed that an ordinary chisel could be driven by hand through pieces 14 by 14 inches in size. In making the repairs it was found necessary to remove these decayed pieces and install new timbers in their place and to further strengthen the keelson by fastening thereto additional heavy timbers running for the full length of the vessel. The vessel was further strengthened by the insertion of two new deck beams with knees, and by the insertion of “two big iron rods”, with turn buckles, running from stem to stem directly beneath the main deck.
What was learned as to the condition of the vessel when she was overhauled could not, of course, be known to the men at the time they refused to return on the vessel. The boat’s behavior, however, was such as to indicate with unerring certainty its real defect. It was shown that the rigging of the vessel stood staunch and tight before loading and immediately thereafter became slack. This was explained to mean that the load had caused the keel to bend downward at the middle of. the vessel which resulted in the cupping of the top of the vessel, and thus a shortening of the distance between the fastenings of the stay lines of the rigging. The converse of the proposition would also be true. A bending in the other direction, which could well happen when the vessel was riding a storm, *183would cause the vessel to spread at the top, which would account for the parting of the butts and the opening of the seams on the planking of the vessel’s sides. Clearly, these conditions rendered the boat unsafe for these turbulent northern seas, where gales and storms are the rule rather than the exception at the season of the year the boat was required to return. • But it is said the boat returned in safety. So it did. But it was loaded with cargo only to its sixteen foot draft line. Had it carried these three hundred and more men in addition to its cargo it would have been subjected to different tests. It came down in tow, and it is noticeable that the course of the tow followed the coast line on its journey, although a direct course would have been several hundred miles shorter. The vessel also gave evidence of its inherent weakness on its return journey, even’with its light load. At one point it encountered the “tail end” of a storm, and immediately began to leak, taking’ some eight inches of water in twenty-four hours ’ time.
I can but feel, also, that the majority have unduly censured the conduct of the men. In spite of the seeming inference to the contrary in the majority opinion, there was no unseemly behavior among them at any time. The captain of the boat is witness to this, and both the agent of the defendant and the. chief officer of the revenue cutter testify that there was no disorder while the men were on shore at the cannery. Stress is laid on the fact that the men held a meeting immediately after landing at the cannery and announced that they would not return on the vessel before the cause of the leak was discovered. But the men then knew the history of the vessel, knew that it developed a weakness whenever it encountered a storm, and the fact that they gave the notice thus early is to my mind evidence of good conduct and good faith on their part rather *184than an indication of concert and design to injure the defendant wilfully; it gave the defendant notice in ample time to meet the emergency. The defendant, it is true, gave no heed to the notice, possibly under the belief that the exigency of the situation at the close of the fishing season would cause the men to return in the vessel despite their belief of its unseaworthiness. And it was because it gave no heed to the notice that it was later obliged to call to its aid the revenue cutter. But even the officer of that vessel, as I have said, testifies to the good behavior of the men, and testifies, though perhaps unwittingly, to facts which show their good faith. After he had completed his sorcalled survey and had determined to his own satisfaction that the vessel was seaworthy, he called on the men to sail her home in accordance with their agreement. They refused. He then caused certain sections of the United States Revised Statutes to be read to them, and informed them that they were in danger of losing their earnings if they did not obey. They answered that danger of loss of earnings was nothing when compared to danger of loss of life. He then informed them that it was within his power to arrest them as vagrants and to cause their conviction as such in the Alaska courts. They answered that breaking rocks on Alaska roads was preferable to a watery grave. It is in evidence also that certain of the men, believing that there was no other alternative than a return on the vessel, traveled on foot for many miles on that barren coast to a point where they could take passage home on another vessel.
It seems to me that there was here sufficient evidence to warrant even the court in finding that the vessel was in fact unseaworthy, that the men acted in good faith and within their just rights in refusing to return on the vessel, and that they were in no sense deserters. But if I am wrong in this conclusion, I think the judg*185ment directed by tbe majority erroneous for another reason. If it be a fact that the vessel was seaworthy, and the men were wrong in their belief that it was not, they should be held to be constructive rather than wilful deserters, and under such a holding no principle of law or justice requires that their entire earnings be forfeited. At most they should be held to- make good only the actual and necessary loss their mistake caused the defendant.
The defendant’s actual outlay in towing the vessel on its return voyage and transporting the men home, as set forth in its answer, is less than $17,500. It alleged in its answer that its total damage was $66,204.41. This was made up in part by charging the men for the extra wages paid and the extra supplies furnished to the China crew and the shore men for the time of the delay caused in completing the arrangements for their transportation after the close of the fishing season. But the defendant was given notice that the men would not return on the vessel immediately on its arrival at the cannery before the commencement of the fishing season, and in ample time to enable the defendant to make other arrangements for their return transportation at the close of that season. It did not heed the notice, and made the arrangements only after it failed to coerce-the men to return on the vessel after such close. The delay was thus the result of the defendant’s own fault and neglect, and I know of no principle of law which will permit a person to enhance his damages by Ms own fault and neglect. The balance of the item is made up by charging the men five dollars for each day the. crew was detained while arrangements were being made for returning them home. As I read the contract the clause therein supposed to authorize this charge applies only to a refusal to work on the fisMng grounds at the work of *186fishing, not for any refusal to sail the vessel. But if it can be said that the refusal to sail the vessel was a refusal to work within the meaning of the contract, the delay for which the charge is made was not, as I have shown, the fault of the men. Not being so, they should not be charged with it, and the utmost sum that should be deducted from the wages earned is the actual and necessary expenditure caused by the men, namely, the actual cost paid in towing the vessel, plus the actual cost paid as transportation for the crew.
There are trial errors urged by the appellant which I have not noticed and which might possibly require a new trial, but upon the grounds discussed .in the majority opinion, I can find no sufficient reason for a reversal.