(dissenting).
I regret that I cannot concur with the majority of the court in affirming the finding of the trial court that the appellants are liable for penalties under Rev. St. § 4529, (46 USCA § 596).
I agree with the majority of the court that the trial judge did not err in assuming jurisdiction, and in not referring the appellees to the Danish Consul at Norfolk or Newport News for a determination of their rights. A1 ■ though all of these parties are foreign seamen, engaged in service upon a Danish vessel, and although the questions involved touch merely matters of discipline aboard that vessel and do not involve the peace and dignity of this country — matters which, generally speaking, may properly be left for settlement by the authorities of the nation to which the vessel belongs — the particular circumstances of the present ease clearly justify a different disposition of it. It is quite true that the shipping articles provided that the seamen were to bo subject to “Danish sea law” and were countersigned and stamped by the Danish Consul when the men signed on at New Orleans. It is equally true that there is no reason why seamen should not be held to the terms of their contracts just as other persons, if, as here, there is no evidence of mistake, fraud, or improper inducement. And this is true even though the given contract, when enforced by our admiralty courts, contemplates that such courts shall apply the law of the foreign country which the parties have written into their agreement. But these shipping articles do not present so simple a question, because if we assume that by the phrase “Danish sea law” the seamen intended that they should be governed, as asserted by appellants, exclusively by article 43 of the Seamen’s Act of Denmark, which provides that in any dispute over wages the decision made by the first available Consul before whom the matter shall be laid shall be binding until it can be brought before a court in the Kingdom of Denmark, the admiralty *730court would thereby be ousted in tote of its jurisdiction, and the law appears to be clear that whether such should take place is a matter resting in the sound discretion of the trial judge. If he elects to.assume jurisdiction, such election should not be disturbed in the absence of a showing that it was based upon wrong principles or, in other words, unless the rights of the parties are not thereby best promoted. The Belgenland, 114 U. S. 335, 5 S. Ct. 860, 29 L. Ed. 152; Elman v. Moller (C. C. A.) 11 F.(2d) 55; Heredia v. Davies (C. C. A.) 12 F.(2d) 500.
Here, to relegate the seamen to a determination of their rights in the first instance by the local Consul was not only what their agreement presumably called for, but as will hereinafter be noted more particularly, it is what they actually relied upon, at least to a large extent, in the controversy which ensued with the master of the vessel. But to say that they must abide by the Danish law to its full extent, -.without recourse to our admiralty courts, and thereby be subjected to the possibility if not the probability of indefinite delay until their rights might be finally determined in Denmark where presumably they would be required to appear in person, during all of which time the payment of their wages would be suspended, would clearly work an injustice, especially since the reference to the Danish law in the contract is not specific but general. For these reasons, therefore, the trial court was correct in assuming jurisdiction.
I also agree with the majority of the court, and with the trial judge, that the correct interpretation of the penalty provisions of Rev. St. § 4529 is that they are, in proper cases, applicable to seamen on foreign vessels while in harbors óf,the United States as well as to those on American vessels, because that section and Rev. St. § 4530 (46 USCA § 597) are to be read together, it being the evident purpose of Congress in enacting them to place domestic and foreign seamen on a parity. But I cannot reconcile the imposition of penalties in the present ease with the construction which the Supreme Court, and this court, have placed upon Rev. St. § 4529, nor with the principle, .which I believe to be self-evident, that it was never the intention of Congress in passing this statute that the admiralty courts should substitute their discretion for that of masters of vessels, where such discretion has been exercised in the performance of their duties, through an honest, reasonable belief that it was warranted, although as a matter of fact, such belief was erroneous.
Section 4529 requires payment of a seaman’s wages within two days after the termination of the agreement under which he has shipped or at such time as he is discharged, whichever first happens. Neglect to make such payment “without sufficient cause” imposes a penalty equal to the sum of two days' pay for each and every day during which payment is delayed beyond the respective period, and this sum shall be recoverable as wages, The phrase “without sufficient cause” has received a wealth of interpretation. Thfe Supreme Court in the most recent case, Collie v. Fergusson, 281 U. S. 52, pages 55, 56, 50 S. Ct. 189, 191, 74 L. Ed. 696, said:
“The phrase ‘without sufficient cause’ must be taken to embrace something more than valid defenses to the elaim for wages. Otherwise, it would have added nothing to the statute. In determining whati other causes are sufficient, the phrase is to be interpreted in the light of the evident purpose of the section to secure prompt payment of seamen’s wages (H. R. Rep. 1657, Committee on the Merchant Marine and Fisheries, 55th Cong., 2d Sess.), and thus to protect them from the harsh consequences of arbitrary and unscrupulous action of their employers, to which, as a class, they are peculiarly exposed.
“The words ‘refuses or neglect to make payment * * * without sufficient cause’ connote, either conduct which is in some sense arbitrary or willful, or at least a failure not attributable to impossibility of payment. We think the use of this language indicates a purpose to protect seamen from delayed payments of wages by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and to induce prompt payment when payment is possible. Hence we conclude that the liability is not imposed regardless of the fault of the master or owner, or his retention of any interest in the vessel from which payment could be made. * *. *
“That the liability is not incurred where the refusal 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.”
This court in one of its latest decisions on this point, The Velma L. Hamlin, 40 F.(2d) 852, quoted most of the aforegoing. After referring to the earlier decision of the Supreme Court, in Pacific Mail S. S. Co. v. Schmidt, 241 U. S. 245, 36 S. Ct. 581, 60 L. *731Ed. 982; to an earlier decision of its own, Mystic S. S. Co. v. Stromland 21 F.(2d) 607; and to a decision of the Court of Appeals for the Second Circuit, The Thomas Tracy, 24 F.(2d) 372, said [page 854, 855 of 40 F.(2d)]:
“And we agree with the following statement of the rule by Judge Ervin in The Cuba-dist (D. C.) 252 F. 658, 662:
“ ‘I do not think that the statute was intended to penalize any master or vessel for exercising sound judgment and discretion, or to require them to surrender such judgment under a penalty of double pay. I think the language used carries with it the idea that, where the court finds that the master’s refusal was willful and without justification or excuse, double pay should be given, but where the master was exercising a reasonable and proper discretion, and the question was doubtful, it reserves to the court the power to pass upon the question of the reasonableness or the sufficiency of the excuse of the master, and give or deny the double pay, accordingly as the court may find the contention of the master to be honest or a mere pretext.’ ”
See also The Corapeak, 46 F.(2d) 262, and M. Vidal v. American Scantic Lines, 47 F. (2d) 605, decided by this court during the present term.
If the refusal of the master in the present ease to pay without the deductions complained of was not “in some reasonable degree morally justified” by the unusual, critical situation, in no sense of his own creation, in which he found himself both in the harbors of Halifax and Newport News, if he did not at those places exercise “a reasonable and proper discretion,” in adopting the disciplinary measures that he did adopt, and if on the. whole the question was not a “doubtful” one as to just bow it should be solved, I am at a loss to know what elements are necessary to constitute moral justification or the exercise of reasonable and proper discretion within the meaning of this act.
In an extremely well-considered opinion in The Thomas Tracy, supra, in which cer-tiorari was denied (277 U. S. 599, 48 S. Ct. 530, 72 L. Ed. 1005), it was held that where a master refused to pay seamen their wages under an honest misconstruction of the meaning of terms in shipping articles, the penalties under section 4529 were not recoverable. There the doubt arose, from an ambiguity in the language employed, as to whether one or more than one voyage was intended — a situation very similar to the present one. The court said [page 374 of 24 F.(2d) ]:
“The statute does not mean that the refusal to pay wages must be based upon a legal defense to the wages. It paeans that, although it may ultimately be determined that there is no actual legal defense to the claim for wages, nevertheless, if the owner or master had sufficient cause to withhold the wages, when demanded, beyond the time mentioned in the statute, it relieves the vessel of the imposition of the penalties.
“Accepting the facts found below, of an honest misconstruction of the meaning of the terms thereof, there was sufficient cause to withhold it. O’Hara v. Luckenbach (C. C. A.) 16 F.(2d) 681; The Trader (D. C.) 17 F. (2d) 623. The master was honest in his belief that the appellees were deserters in refusing to put to sea as the ship prepared after the cargo was discharged, and the conduct of the appellees, as he testified, reasonably led him to believe that they would do so. Errors of judgment, made honestly, such as this, should not penalize the ship, as it would here, if this decree were affirmed.”
Similarly, in The St. Pañi (D. C.) 133 F. 1002, where a seaman was fined a portion of his wages for disobedience of orders but the master failed to make an entry of the offense in the ship’s log when committed, as required by section 4597 (46 USCA § 702), it was held that although the imposition of the fine was unavailable as a defense in an action for wages, the shipowner was nevertheless justified in contesting his liability, and was, therefore, not liable to imposition of penalties under Rev. St. § 4529, but merely for the amount of the wages withheld. This decision was cited with approval by this court in The Velma L. Hamlin, supra.
I am unable to distinguish, the conduct of the masters in the aforegoing eases from that of the master in the present case when tested by the rule of “sufficient cause” as there laid down. I admit that the phrase contemplates something more than good faith; that in addition to honesty, there must exist reasonable ground for withholding part of the wages. In the present case, with respect to the episode at Halifax, upon learning of the possibility of the vessel being ordered to a European port, the men refused to perform their duties because under their construction of the shipping articles service on such a voyage was not required of them. The Consul to whom they appealed at Halifax, such appeal presumably being contemplated by the terms of the shipping articles, disagreed with them.
*732They then requested that the Consul General at Montreal be communicated with, which was done, and their claim being again overruled, they refused to work, whereupon the master had the men arrested on the charge of mutiny, but not until after further consultation with the Consul and not until he had made further effort to induce them to return to work. After a hearing before the local authorities, the charge of desertion being substituted for that of mutiny, but before any disposition was made of their ease, the master received orders to return to Hampton Roads, whereupon the men readily agreed to return to the ship and resume their duties. It is significant that in the original proceedings a claim was made by them for alleged false imprisonment at Halifax but was dismissed. As a result of this episode at Halifax the master incurred, by way of expenses and lost time, the sum of $280. This amount he apportioned among the seven •claimants and deducted the share from the wages of each. This is covered by a proper entry in the ship’s log which also contains a statement of the reason why a further hearing was not given the men at Halifax, as follows: “The examination is put off according to the Maritime Law 8 63 and 64 on the advice of .the Danish Consul to avoid further trouble during the voyage and at Port Alfred, where there is no Consul, until ship arrives in U. S. A., where discharge is to take place in the Danish Consulate.” The trial judge therefore appears to have been in error when he said “that no proper reeord of this charge, either in the aggregate or individually, was entered in the ship’s log.” He found that there was no 'justification for the seaman’s conduct at Halifax and that therefore they were subject “to the forfeitures and penalties legally applicable under such circumstances, but no more.” The trial judge added: “The action of.the master of the ship in charging them with an arbitrary amount claimed to represent the loss sustained by their conduct in Halifax was, as I view the ease, as unjustified as the action of th.e men in refusing to work, and since there is added to this his failure to duly notify them and give them a hearing as required by both the American and the Danish law, it becomes apparent that his action in deducting this or any sum from their wages on their discharge at Newport News was unwarranted.” The penalties referred to as being “legally applicable” (46 USCA § 701) are admittedly less than the sums which were deducted in the present case, but since the assessment of these penalties was in conformity with the recommendation of the Consul, as was also the postponement of the hearing, it must follow that such action was not unwarranted in the sense that it was done willfully or arbitrarily, as the tidal court decided, but rather through an error of judgment, honestly and reasonably exercised.
Similarly, with respect to the failure to pay the wages for the two days while the vessel was detained by the immigration authorities at Newport News, due to the fact that the vessel’s crew list had not been stamped by the American Consul at the last Canadian port, the master’s conduct was in some “reasonable degree morally justified.” It was not his fault that there was no American official to certify his crew at Port Alfred, and he acted with reasonable diligence upon being notified by the authorities at Hampton Roads that his papers were defective. During the vessel’s detention the men were taken care of without expense to themselves and no services were required of them. Here the master, again relying upon the Danish law, which he thought controlled, was mistaken as- to his -right to withhold the wages, which continued until finally discharged, but because such withholding was due to an honest, although a mistaken, belief as to his justification for so doing, I cannot bring myself to admit that the statute intended the shipowner should be required to do more than remit the amount of the wages thus erroneously withheld. It is true that he did not actually tender the balances believed to be due to the men aboard the ship, but paid them to the Danish Consul at Newport News. He did this, however, because the vessel’s chief engineer, who was the officer in charge of the seamen, had told the master that they would not accept any payment if tendered. Clearly under such circumstances the master was not required to' do an act known to be futile. Furthermore, the seamen had already sued out an attachment for their wages in the state court and had served the master with process. It is also significant to note that the remainder of the vessel’s crew who had been detained in the same manner and offered the same wages have not, so far as the record discloses, -protested. The trial judge found that the action of the master was “without authority.”
It is to be noted that the statute does not use either the word “unwarranted” or the phrase “without authority.” It will be admitted that what the master did both at Halifax and at Newport News was unwarranted or without authority — taking these terms to be synonymous — if what is meant is that the *733statute did not permit the master to do what he did. But this is only a part of the test. The real question is whether the forbidden conduct was with or without reasonable justification under the circumstances. The trial judge himself admitted that the action of the seamen at Halifax was without justification and I find no evidence of arbitrary conduct on the part of the master in either ease. He had behind him the experience of thirty-eight years at sea. A court cannot visualize the exigencies which constantly arise upon a vessel and which require both prompt and firm action. Although there is some testimony on the part of the seamen that the master drank heavily, and that this affected his judgment, I find no support for this conclusion; nor apparently did the trial judge because the master’s conduct in this respect is not alluded to.
The statute is admittedly a harsh one, and whether or not it should be invoked is, o'f course, not to be determined by the amount of the penalties. But the shipowner, as well as the seamen, has rights which must be protected, and the very fact that the act is oppressive demands a very careful scrutiny of the facts in each case. The total amount of the wages withheld from the seven seamen, and to which I agree they are entitled, is approximately $400, whereas the penalties allowed by the lower court aggregate approximately $3,600 — a sum nine times as great. It seems unconscionable to interpret the statute as saying, or that its framers ever intended, that such virtual confiscation should be practiced under it in a case like the present one, where the master has throughout merely endeavored to discipline members of his crew, and to conform to the immigration laws in a matter dictated by his own honest and reasonable, although erroneous convictions.
I am not unmindful of the principle repeatedly reaffirmed by this court, that there is a strong presumption of the correctness of the findings of a trial judge in admiralty, upon questions of fact, where he has heard the witnesses. But here, the situation is somewhat different. The interpretation of a federal statute is involved, and I cannot bring myself to the view of the trial judge that the facts bring the ease within the penalty provisions of the statute.
With respect to the amounts deducted from wages to cover the cost of clothing supplied to the seamen at the inception of the voyage, I also find myself in disagreement with the majority of the court, and therefore in accord with the trial judge who found that such wafe not in violation of the statute forbidding the advance of wages (46 USCA § 599), although advances made for board and lodging were contrary to the statute. It appears that when the men came aboard at New Orleans, they were badly in need of clothing, and since the ship neither had, nor was it apparently required to have, a slop chest (see 46 USCA § 670), and since they requested this clothing, the master directed the Shipping Master to supply it to the men, he paid the Shipping Master- — just when is not entirely clear from the reeord — and the men were charged accordingly out of their wages as they fell due.
In Swanson v. Torry, 25 F.(2d) 835, this court recently decided that the statute was not violated where the master provided the seamen with various indispensable articles of clothing not found in the slop chest, and deducted the cost of same from their wages. I fail to find any legal distinction between the two situations. If the master may himself purchase necessary clothing for his crew, I see no reason why he may not do the same thing vicariously. The transaction partakes no more of an advance or allotment in the one case than in the other. In view of this conclusion, it becomes unnecessary to do more than allude to the suggestion that if these were unlawful advances, then, by virtue of Rev. St. § 4523 (46 USCA § 578), the contract for service in the present ease was rendered void and the seamen had the right to leave the service at any time. An advance payment of wages in violation of this section does not render the contract for service made by the shipping articles void, unless it appears that such advance formed part of the consideration or inducement for entering into the contract — a fact which does not appear in the present ease. The Bound Brook (D. C.) 146 F. 160.
With respect to the claim of libelant Nielsen for maintenance and cure, I agree that it is without merit and was therefore properly denied.