(dissenting).
46 U.S.C.A. § 565, enacted in 1872, provides that the articles “shall be signed * * * in the presence of a shipping commissioner” whose duty it is to see that the seaman is “made acquainted with the conditions thereof, and understood the same.”1 A statute along those lines had been proposed twelve years earlier in Dooley v. The Neptune’s Car, 1860, Fed.Cas.No.3,997, to prevent the not uncommon practice of signing up seamen.who were illiterate, or “unable to read the articles,” and to whom they were not explained. The statute was patently intended to do away with that evil. Obviously, the statutory obligation of the Commissioner was not intended to provide an idle ceremony.
In the instant case, the plaintiff was unable to read English with any facility. He did not read the articles. The Shipping Commissioner, so the trial judge found, “told him that he would receive a one-hundred dollars bonus until he returned to New York.” The articles did not so provide. In those circumstances, I think the authorities require us to hold that the ar-*611tides did not bind the appellant, that as a result, no contract resulted from his signing them, and that he is entitled to recover in quantum meruit.
Long ago, it was held that one who signs a document, which he is unable to read, relying without negligence upon the innocent, non-fraudulent misinterpretation of it by a third person, is not bound by it. See Thoroughgood’s Case, 2 Coke 9a (1852), 76 Eng. Rep. 408. That case has often been cited with approval.2 We recently applied that doctrine in Ricketts v. Pennsylvania, 153 F.2d 757, 759, 164 A.L.R. 387,3 where, as in Thoroughgood’s Case, there was non-negligent reliance upon the non-fraudulent advice of a third person.
The authorities I have cited did not relate to seamen. A fortiori, should the doctrine apply to a seaman, a “ward of admiralty,”4 especially where, as here, he had a statutory right to rely upon the words of the Commissioner. Even aside from a statute, the courts have held a seaman not bound where he signed articles without full knowledge of their contents.5 Proof of fraud (or “imposition”) is not required,6 particularly where there was a “failure to read [the articles] to the seaman pursuant to law.”7 That the union of which plaintiff was a member agreed to terms to be in-eluded in seamen’s contracts is not here material, I think. For each contract with each seaman is several, Oliver v. Alexander, 6 Pet. 143, 8 L.Ed. 349; and the general understanding with the union could not, I think, over-ride the statutory right of plaintiff to be specifically informed by the Commissioner about the contract provisions.
In such circumstances, plaintiff should recover in quantum meruit.8 The measure of recovery is, I think, indicated in 46 U.S. C.A. § 575, i. e., “the highest * * * wages * * * given * * * for a similar voyage, within three months next before the time of * * * shipping.”
My colleagues seem to suggest that his quantum meruit claim is barred because he did not seek relief on that ground. But his complaint alleged no contract; it said merely that “he was in the employ of the defendant aboard said vessel, as a merchant seaman.”9 Nor is he barred because he received some part of what is due him.
If I am correct (i. e., if there was no contract), appellant has no claim to a contractual bonus ;10 nor, on the other hand, is he bound by the provisions, incorporated by reference in the writing, relating to his presumptive death. On the facts, there should be no penalty. Glandzis v. Callinicos, 2 Cir., 140 F.2d 111, 114-115; Usatorre v. The Victoria, 2 Cir., 172 F.2d 434, 444.
See also §§ 542 and 545.
See, e. g., Williston, Contracts, Rev. Ed., § 95A (p. 306); Wigmore, Evidence, 3d Ed., § 2405 (p. 15); Smith v. Ryan, 191 N.Y. 452, 457-458, 84 N.E. 402, 9 L.R.A.,N.S., 461, 123 Am.St.Rep. 609, 14 Ann.Cas. 505; Pimpinello v. Swift & Co., 253 N.Y. 159, 164, 170 N.E. 530.
I refer to the opinion of Judge Learned Hand.
Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 91, 66 S.Ct. 872, 90 L.Ed. 1099; Hume v. Moore-McCormack Lines, 2 Cir., 121 F.2d 336.
Johnson v. The Frank S. Hall, D.C., 38 F. 258; The Samuel Ober, D.C., 15 F. 621, 622; Brown v. Lull, Fed.Cas.No. 2,018; Matern v. Gibbs, Fed.Cas.No.9,273; Sweeney v. Cloutman, Fed Cas.No. 13,685; Dooley v. The Neptune’s Car, Fed.Cas.No.3,997; Slocum v. Swift, Fed. Cas.No.12,954; Willard v. Dorr, Fed. Cas.No.17,680; The Lola, Fed.Cas.No. 8,468.
See cases cited in note 5.
Foreman v. J. M Benas & Co., D.C. S.D.N.Y., 247 F. 133, 134, per A. N. Hand, J.
Johnson v. The Frank S. Hall, D.C., 38 F. 258.
See Federal Rules of Civil Procedure, rules 8, 54(c), 28 U.S.C.A.; Esso Standard Oil Co. v. U. S., 2 Cir., 174 F.2d 182; and eases cited in the dissenting opinion in Ira S. Bushey & Sons v. W. E. Hedger Transp. Corp., 2 Cir., 167 F. 2d 9, at 32 note 28.
He may be entitled to a bonus as part of the quantum meruit relief according to 46 U.S.C.A. § 575.