Heino v. Libby, McNeill & Libby

Holcomb, J.

These actions, ten in number, were brought by ten of a crew of seamen and fishermen, suing for themselves and as assignee for collection of eighty-four others, to recover wages claimed to have been earned by them under a contract of employment. The ten cases were consolidated for trial under the title of Heino v. Libby, McNeill & Libby. From six to twelve cases are included in each suit. In each suit the plaintiff alleges his employment and that of his assignors and that he was given certificates showing stated amounts which appellant refused to pay.

Appellant answered in each case, the answer in the Heino case being typical of all, denying that the several amounts claimed by the plaintiffs were earned, alleging that certain lesser sums were earned, which would be owing by appellant were it not for matters affirmatively alleged. Appellant then affirmatively alleged that, on April 8, 1919, respondents and their assignors entered into a contract with appellant in the form of shipping articles, and a certain supplementary agreement, whereby respondents and their assignors engaged themselves as seamen and fishermen for the season of 1919, and, as such, agreed to sail the ship “Abner Co-burn” from Seattle to Libbyville, Alaska, and to work a.s fishermen during the fishing season, and on the conclusion thereof to sail the “Abner Coburn” back to Seattle. It is further alleged that, upon the arrival of the ship at Libbyville, the crew conspired together to violate their contract by refusing to navigate the ship back to Seattle; that, in furtherance of the conspiracy, the crew pretended that the vessel was in a leaky condition and unseaworthy, and thereupon the appellant had the vessel surveyed by three master mariners, and by the officers of the United States coast guard cutter “Unalga”; but that, notwithstanding such surveys and the demand of the master that the crew fulfill their contract, they refused to do so, and deserted the ship. Appellant then alleged that, on account of the refusal of the crew to perform their contract, appellant was subjected to expenses aggregating something over $36,000, and by reason of the provisions of the contract, appellant, became entitled to recover from each member of the crew $5 for each day they severally refused to work. ■

Respondents replied, putting in issue the matters alleged in appellant’s affirmative answer.

The total amount claimed by the several respondents upon their own and the assigned claims was $26,029.22. Upon a trial to the court and a jury, the» jury returned a verdict for $25,613.76.

Appellant operates a number of salmon canneries in Alaska on Bristol Bay, and one of the.canneries is located at Libbyville, Alaska. The usual method of operating these canneries is to fit out an expedition, which leaves Seattle in the spring in time to reach the cannery by the time the fish begin to run. The canneries are operated during the run of the fish, and when that is over the expedition returns to Seattle. During the season of 1919, the sailing ship “Abner Coburn”, owned by appellant, was assigned to the expedition to Libbyville. She left Seattle on April 10, 1919, having on board a cargo of cannery and fishery supplies and about 325 or 330 men. The men on board were under contract to perform the labor and were divided into three groups, namely: (1) seamen, fishermen, beach-men and trapmen; (2) monthly men; (3) China crew.

The first group (seamen, fishermen, beachmen and trapmen) was composed of about one hundred men who, before leaving Seattle, signed shipping articles in the office of the United States shipping commissioner, by which they engaged themselves to sail the “Abner Coburn” to Alaska, work during the fishing season as fishermen, beachmen or trapmen, and at the close of the fishing season to sail the vessel back to Seattle. These men were all members of the Alaska fishermen’s union. Their contract of employment consisted of the usual form of shipping articles prescribed by title LIII,- Revised Statutes of the United States, to be executed with respect to vessels or jnerchant ships, together with a supplemental agreement known as a “fisherman’s contract”, which provides in detail-as to the duties and compensation of these men. The two documents, namely, the shipping articles and the fishermen’s agreement, were executed together and constituted one contract. The form of the. fishermen’s agreement is agreed to each year by representatives of the salmon packers operating in Alaska, and the officials of the Alaska fishermen’s union, and the form so agreed to becomes the uniform contract applicable to all canneries in Alaska.

Under the agreement, the seamen and fishermen were entitled to certain fixed sums known as “run money”, as compensation for sailing the ship to and from Alaska, together with further allowances depending upon the number and kind of fish caught during the season.

These cases concern only wages claimed to be due seamen and fishermen, the monthly men and China crew not being involved.

When the vessel left Seattle with its cargo of cannery supplies, it was loaded down to the 24 foot draught. When about seven hundred miles outside of Cape Flattery, nearly one-half of the distance to Unimak Pass, the ship encountered a squall which lasted about twenty-four hours, on about April 18, 1919, and began to take water, and took water to the extent of nine or ten inches per hour. Some of the crew then became alarmed and demanded of the master that he return to Seattle. A petition was circulated aboard ship and signed by many members of the crew, and monthly men, and presented to the master, making this demand, but he declined to turn back, being of the opinion that he could as safely go forward to Unimak Pass as to put back an equal distance to-Seattle; for, on reaching Unimak Pass he could, if necessary, put into Dutch Harbor. After this squall, the vessel proceeded to Bristol Bay, not finding it necessary to stop at Dutch Harbor. Upon the master’s refusal to put back, the crew became insubordinate, and for a time refused to set sail as ordered. .The ship arrived at Bristol Bay about May 8, 1919, and proceeded to discharge her cargo. Although the vessel had leaked considerably on the voyage, the cargo was not damaged by water. From the time she started to leak, about April 18, until she arrived in Bristol Bay, she continued to take in more or less water, but the power pumps were always adequate to take care of the water and it was never necessary to operate the hand pumps.

When the vessel was partly unloaded, the leak was discovered at about the 19-foot draught line, and it was found that several butts had opened up, probably caused by the stor.m, and thus caused the vessel to leak. A “butt” is a joint between the ends of two planks on the side of the ship. The planks are about eight inches wide, and the space between the ends of the two planks, about a quarter of an inch wide, is called a “butt” and is filled with oakum to make it water tight. The oakum had worked out of several of the butts. The unloading of the vessel' had caused her to come up out of the water so that the leaking butts were exposed. "When the vessel had been completely unloaded, appellant caused her to he overhauled and fitted for the return voyage, and, among other things, caused the leaking butts to he repaired.

"When the crew arrived at Libbyville, they held a meeting and agreed among themselves that under no circumstances would they sail the ship on the return voyage, and so notified the superintendent of appellant’s cannery. This determination was made by the crew before the vessel was unloaded and before it was known why she had leaked on the trip to Alaska.

After the vessel was repaired, appellant, on about July 8, caused her to he surveyed by three disinterested master mariners from other ships then in Bristol Bay, and as a result of their examination they pronounced the ship seaworthy and in all respects fit to make the return trip to Seattle.

On August 12, the ship was loaded and ready to make the return trip. The vessel did not have a full cargo for the return voyage, and as loaded for the return trip the butts which had leaked on the up trip were above water. The master then ordered the crew aboard for the return voyage, hut because of the previous agreement among themselves, they refused to go aboard. The men were then assembled on shore, the master read to them the certificate made by the three master mariners, the roll of the crew was called, and each man individually asked to go aboard, and each individually refused to do so. In the meantime the general superintendent, Svenssen, of appellant, had arrived at Lihhyville, and took charge of the sit-nation. He had various consultations with the members of the crew endeavoring to get them to fulfill their contract, but without success. As a last resort he took steps to have the United States coast guard cutter “Unalga” sent to the scene of the trouble. Captain Dodge, commander of the “Unalga” was ordered by his superiors at Washington to go to Libbyville where he arrived with his vessel September 6. He immediately appointed a board of survey consisting of himself and three other officers of the ship. This board proceeded to survey the Coburn and, after a complete examination, pronounced her seaworthy and fit to make the voyage to Seattle. He then assembled the crew in a bunk house and informed them of the conclusions reached by himself and his officers, and endeavored to persuade them to make the return voyage, without success, the crew still persisting in their refusal to go aboard the vessel. On August.26, the fishermen’s union headquarters at Seattle telegraphed to Selenius, “delegate” or representative of the crew, advising that the crew sail the vessel home because it had been certified to be seaworthy.

To induce them to go aboard Captain Dodge made various proposals to them. He offered to tow the Co-burn to Unimak Pass and then convoy her the remainder of the way to Seattle, but the men refused to go aboard under these conditions. He offered to tow the Coburn all the way to Seattle if a sufficient number of her crew would go aboard to steer her on the trip down, which proposal was also refused. The men were at no time violent but simply stubbornly determined. That condition of affairs continued from September 6 to September 16, and by that time bad weather was approaching and it was necessary to do something to get the men out of the country. Finally Captain Dodge made an arrangement whereby he took the crew aboard Ms own vessel, the “Unalga,” and towed the Cobnrn with the monthly men to Dutch Harbor, where he arrived on September 17. The Coburn made the voyage from Libbyville where she left on September 15, to Unalaska, Dutch Harbor, without any difficulty whatever.

The seamen and fishermen were quartered on shore at Dutch Harbor until October 12, when they were put aboard a steamer, together with the China crew, and sent to Seattle, appellant advancing the transportation charges.

Shortly after the departure of the steamer with these men aboard, the “Unalga” sailed from Dutch Harbor leaving the Coburn there. Appellant failing in its efforts to procure a crew to sail the Coburn, was compelled to have her towed by steamer “Cordova” to Seattle, where she arrived on November 12. The master and monthly men made the trip on the Coburn from Libbyville to Dutch Harbor, and thence to Seattle and the vessel leaked but an inconsequential amount on the trip down, and discharged her cargo at Seattle without any damage. The proof shows that a wooden vessel will leak more when being towed than when being sailed.

During the trip from Libbyville to Dutch Harbor, when the Coburn was towed by the “Unalga,” a distance of four hundred fifty miles, Lieutenant Anderson, a subordinate of Captain Dodge of the “Unalga” was put aboard the Coburn to keep Captain Dodge informed of the conditions aboard the Coburn, and no leaking or other trouble was reported to Captain Dodge.

WMle at Libbyville and on September 12, Captain Dodge made an agreement with the representatives of the fishermen and beachmen whereby it was agreed that safe transportation should be- furnished the fishermen and beachmen from Libbyville to Unalaska, and from Unalaska to Seattle on a seaworthy vessel, excluding the “Abner Cobum”, and that all expenses were to be paid by Libby, McNeill & Libby from the time the men left Libbyville until they arrived at Seattle. This agreement the men who represented the fisherpien, beachmen and others, testified was authorized by Captain Svenssen, the general superintendent of appellant, and also declared by him to have been by and with his authority, representing appellant. Captain Dodge and Captain Svenssen, however, both testified that the agreement was not authorized nor ratified by Captain Svenssen, or the appellant. Captain Dodge testified that it was made under the stress of the circumstances existing at the time, because it was absolutely necessary that the men be gotten out of Libbyville and that region at once or they could not be gotten out at all during the winter, and would suffer great hardships and privations. On the arrival of the Coburn in Seattle, this agreement was repudiated by appellant whose officers insisted that the crew had violated their agreement and that appellant would stand strictly upon the contract between it and the men.

Prior to the sailing of the ship from Seattle, she was surveyed by a representative of the San Francisco board of marine underwriters, who was a master mariner of over thirty years experience, and who found her fit for the voyage, and issued a certificate to that effect. After her return to Seattle from this voyage she was again surveyed by the same representative of the underwriters, and found practically tight and seaworthy and the cargo came out in good condition.

It is not necessary to set forth the contract between appellant and the men in full, for it is exactly such a contract as was held by this court in Danielson v. Libby, McNeill & Libby, 114 Wash. 240, 195 Pac. 37, to come within the designation of “Seaman’s Contract” and governed by maritime law.

Respondents assert that the “Abner Coburn” was not a merchant ship and therefore not governed by the laws applicable to merchant ships. They argue that “appellant has not advised the court whether it is claiming under the ‘Harter Act’ (Federal Statutes) or claiming simply for reasons that are historic. This expedition was not launched under any provisions of the laws of the United States. It was simply a private enterprise for private pursuits.”

The “Harter Act” alluded to by respondents in no way applies,, to this matter. That act was an act of Congress of February 13, 1893; 27 Stat. L. 445. It provides that agreements added to bills of lading relieving the owner, etc., of a vessel sailing between the United States and foreign ports from liability for negligence in proper loading, stowage, custody, care or proper delivery of merchandise, are void. That no bill of lading shall contain any agreement whereby the obligations of the owner to exercise proper diligence, properly equip, man, provision, and outfit such vessel and to make such vessel seaworthy and capable of making the intended voyage, or to relieve the master, etc., of the vessel from carefully handling and stowing her cargo, and properly to care for and deliver the same; nor shall the vessel, her owner or owners, charterers or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God or public enemies, or the inherent defect, quality, or vice of the thing carried, or for insufficiency of package or seizure under legal process, or for any loss resulting from any act or omission of the shipper or owner of the goods.

It will thus be seen that the act applies only to liabilities and immunities of carriers to shippers of merchandise.

The “Abner Coburn” was not a ship of war, nor a police patrol vessel, nor a private pleasure yacht, but was engaged in domestic commerce between ports of the state of Washington, and noncontiguous territory and was therefore a merchantman.

“A ship or vessel employed in foreign or domestic commerce and in the merchant service is a merchantman.” Black’s Law Dictionary, 773.

The owner and master of the ship would have been subjected to penalties had they not complied with the shipping regulations provided by the United States statutes, title LIII, and the men were protected in their rights by those same statutes.

Moreover, it has become indisputably established that such a contract as the one before us is of a maritime character. In Domenico v. Alaska Packers ’ Assn., 112 Fed. 551, a similar contract by men “to act as seamen on a voyage to and from the salmon fishing grounds in Alaska, to work as fishermen during the season, assist in canning the fish on shore, and loading them on board for transportation,” is one maritime in its nature. The court there observed:

“It will be noticed that the principal subject of the contract upon the part of the libelants was for the rendition of services as fishermen at Pyramid Harbor, and included work in the cannery on shore, in preserving the fish caught by them, and also the labor of placing the fish on board the Two Brothers for transportation to San Francisco. The contract is, however, maritime in its nature. The fact that, while engaged in fishing at Pyramid Harbor, the libelants slept on shore and mended their nets and cared for the fish on shore, and that this was contemplated by the contract, does not make it any the less a maritime contract which a court of admiralty has jurisdiction to enforce. ’ ’

This case was affirmed by the circuit court of appeals for the ninth circuit, in 117 Fed. 99. And the same kind of a contract in North Alaska Salmon Company v. Larson, 220 Fed. 93, 135 C. C. A. 661, was held to be a maritime contract. Benedict’s Admiralty (4th ed.), § 143 was quoted to the effect that, “if a contract is maritime in itself it carries all its incidentals with it, and the latter, though nonmaritime in themselves will be heard and decided.” The same rule was declared in Union Fish Co. v. Erickson, by the circuit court of appeals, ninth circuit, 235 Fed. 385, which was affirmed by the United States supreme court in the same case on certiorari, 248 U. S. 308, in which the principle was declared that, “those who pursue commerce and put to sea are subject to the maritime law.”

The contract being maritime, these respondents and their assignors had a right, if they desired, to bring their suits in admiralty in a United States district court. But they had the alternative right to sue at common law in a common law court by virtue of the third subd. of § 24, of the United States judicial code, which provides that district courts of the United States shall have jurisdiction of admiralty or maritime actions, “saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.” But it is well established that although the respondents had the right to sue in admiralty, and had an alternative right to sue in common law actions in the state courts, their reciprocal rights, duties and obligations are governed by the rules and principles of admiralty law. The Osceola, 189 U. S. 158; Chelentis v. Luckenbach S. S. Co., 243 Fed. 536. In the last case, in the opinion of the circuit court of appeals, it was declared:

“The contract of a seaman is maritime and has written into it those peculiar features of the maritime law that were considered in the case of The Osceola, supra; and although because of these peculiarities such contracts are almost invariably litigated in admiralty courts, still the contract must be the same in every court, maritime or common law.”

In reviewing the decision of the circuit court of appeals in the above case, the opinion of the supreme court of the United State’s, 247 U. S. at p. 384, stated:

‘ ‘ The distinction between the rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. Bouvier’s Law Dictionary. Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant’s liability shall be measured by common law standards rather than those of the maritime law. Under the circumstances here presented, without regard to the court where he might ask relief, petitioner’s rights were those recognized by the law of the sea. ’ ’

In Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, the supreme court of the United States cites and quotes the above cited cases, and others, quoting the Erickson case in 248 U. S. 308, to the effect that,

“In entering into this contract the parties contemplated no service in California. They were making an engagement for the services of the master of the vessel, the duties to be performed in the waters of Alaska, mainly upon the sea. The maritime law controlled in this respect, and was not subject to limitation because the particular engagement happened to be made in California.. The parties must be presumed to have had in contemplation the system of maritime law under which it was made.”

And in the case last cited, the supreme court further said:

“As the plain result of these recent opinions and the earlier cases upon which they are based, we accept the following doctrine: The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law, and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law; or to interfere with its proper harmony and uniformity in its international and interstate relations. To preserve adequate harpnony and appropriate uniform rules relating to maritime matters and bring them within control of the federal government was the fundamental purpose; and to such definite end Congress was empowered to legislate within that sphere.”

Appellant, upon those terms, contends that, as a matter of law, the crew had no right to set up their judgment as against the judgment of the master confirmed as it was by disinterested independent surveys. That the contentions of the crew were purely obstinate, unreasonable and not in good faith, to the effect that the ship was not seaworthy for the return voyage, and that, agitated by their constituted agent or agents, they entered into the ill-advised agreement, not, under any circumstances, to return on the “Abner Coburn” regardless of its real condition, regardless of any surveys and certificates as to the seaworthiness of the vessel, and stubbornly adhered to it as a body, and therefore became deserters.

On the other hand, respondents contend that the seaworthiness of the vessel was a fact to be determined by the jury as any other fact, and that the evidence justifies the verdict of the jury that the vessel was not seaworthy, and therefore justified the men in discharging themselves at Libbyville, Alaska, and refusing to return on her, and that furthermore, under their contract'the men had a perfect right to quit the employ of the company at any time, referring to subdivision “f” of §12 of the supplemental contract between the men and appellant.

Subdivision “f” of § 12 of the supplemental contract is as follows:

“(f) A fisherman refusing to go fishing or work otherwise shall be considered as having quit the employment of the company, and shall be paid in accordance with § 18, and the company released from all further obligations to him.”

Section 18 is as follows, so far as here material:

“(b) Any man who is discharged, or who quits shall be paid only half run money and all his other earnings, including for the day of discharge or quitting. If no substitutes are hired to take the place of a quitting or discharged man, the run money so deducted shall be equally divided among all the men of the cannery signing this contract.

“(c) Men discharged shall be given free transportation to home port, including maintenance, but this obligation shall not apply to men quitting. ’ ’

We cannot perceive how the above quoted portions of the contract in any way justify the men. They had, under this contract, no right to quit as a body by colluding and combining together in order to bring about the abandonment of the ship or the enterprise on which the ship was engaged, and if they quit singly, and without cause, they had no right to more than one-half the “run-money” or remaining compensation, nor to transportation back to Seattle, under the provisions of the contract.

Being governed by maritime law, as before seen, the men have no right to conspire together to abandon the ship and its enterprise before the voyage is completed. They signed np for the voyage from Seattle to Libby-ville, and any other ports in Alaska which the master might see fit to touch, and for the salmon fishing season of 1919, and to return by the same ship, and man the ship from Libbyville to Seattle, at the end of the season. Thus, the duration of the voyage was fixed by the contract. When the ship landed at Libbyville, the voyage was not complete. Shore duties were then required of some of the crew, and when the fishing season was completed, sea duties were again required of them to return the ship to Seattle. Although the ship may have appeared to them to be in a dangerous condition on the first half of the voyage, that from Seattle to Libbyville, its safe arrival at Libbyville proved that the fears of the crew were unfounded. It is almost indisputably established that the ship was put in a seaworthy condition for the return trip, if it had ever been in an unseaworthy condition, and the master and the monthly men risked their lives upon the ship for the return trip to Seattle, although under tow because of not having a crew to handle it (which method of handling would have made it leak more than if sailed by the crew), and arrived in Seattle, with the cargo, safely. '

In the C. F. Sargent, 95 Fed. 179, the crew had shipped as seamen for a voyage from Tacoma to Honolulu and thence to San Francisco, before their final discharge, either direct or by way of one or more ports on the Pacific Coast. Proceeding from Tacoma to Honolulu, where the cargo was discharged, the vessel returned in ballast from Honolulu to Seattle where a cargo was taken on for San Francisco. After the cargo was loaded at Seattle the crew left the vessel, claiming that she leaked and was unseaworthy. They then libeled the ship for their wages. The evidence showed that the vessel was in a leaky condition on the trip from Tacoma to Honolulu, and that it was necessary for the crew to perform considerable labor in manning the pumps, but she reached Honolulu in safety, and on the return voyage to Seattle, when light, she took in but little water. At Seattle the leak was located and repaired and a certificate of seaworthiness was given by the agent of the underwriters. The United States district court, sitting in admiralty, said:

“Under the circumstances shown by the uncontradicted evidence, the seamen were not authorized to determine the question as to the seaworthiness of the ship, and they cannot be relieved from their obligations to perform their contract under the shipping articles which they have signed, on the ground of unseaworthiness. If they in good faith believed that it was unsafe for the ship to go to sea, they might have demanded a survey, which, if fairly made by competent persons, would be treated by the court as conclusive for the purpose of determining whether the men should or should not be discharged before completion of the voyage.”

It will be observed that the above case holds that, on the question of the seaworthiness of the ship, the men should not be relieved from their obligations to perform their contract on the ground of unseaworthiness unless they demanded a survey, and that if the survey was fairly made, by competent persons, it would be treated by the court as conclusive for the purpose of determining whether the men should or should not be discharged before the completion of the voyage. In this case the men did not demand a survey; but two surveys, which appear to be fair, and made by entirely disinterested and competent persons, were made, as to the seaworthiness of the Coburn, and the results thereof made known to the men, who refused to be bound by them.

In The Condor, 196 Fed. 71, the district court said:

“A judge should, of course, be careful not so to construe the law as to force the crew to- risk their lives on an unseaworthy ship; but, on the other hand, if they may finally choose, without subsequent question, to regard any injury to the ship as absolving them from further service, the condition of their master will be quite helpless. Here they probably knew the actual fact that no crew could be got nearer than Valparaiso. The situation was not, so far as I can see, that of a crew harshly held to a bargain now become dangerous, but of one, not sincerely afraid, but attempting to exploit the necessities of their master. If so, it is surely a very dangerous practice to encourage, and one which directly promotes insubordination and mutiny. Discipline on the sea is not like that on the land in ordinary industrial employments. The relations between master and man requires an authority which is not necessary when both parties have immediate recourse to constituted authority. No doubt countless misery and brutality has arisen from the exercise of master’s authority; but the substance of that authority still remains in civilized countries, and must remain if men are to put to sea for weeks, out of reach of the usual methods of keeping order.

“So long as a master does what he can to obtain impartial outside opinion, acts within reasonable bounds of a fair judgment, and trusts bis life upon the venture equally with his men’s, his decision must control as to whether the voyage shall break up, and the whole ship’s company is bound by it. To hold otherwise is to imperil his authority and the whole safety of ships and those upon them.”

Under § 8345 (title LIII) United States Compiled Statutes, 1918, it is provided that first and second officers under the master, or a majority of the crew of any vessel bound on any voyage shall, before the vessel shall have left the harbor, if it is discovered that the vessel has a leak or is otherwise unfit in her crew, body, tackle, apparel, furnishings, provisions or stores, to proceed on the intended voyage, require such unfitness to be inquired into, the master, upon request of the first and second officer under the master, or such majority of the crew, forthwith apply to the judge of the district court of that judicial district, if he shall there reside, or, if not, of some justice of the peace of the city, town or place, for the appointment of surveyors, taking with hi,m two or more of the crew who shall have made such request, and providing a penalty for failure to comply with such demand; and § 8346 supra, provides that the judge or justice in the domestic port shall upon such application of the master or commander, issue a precept directed to three persons in the neighborhood, the most experienced and skillful in maritime affairs that can be procured, to make a survey of the matters complained of. Section 8347, supra, provides that if, “after judgment that such vessel is fit to proceed on her intended voyage, . . . the seamen, or either of them, shall refuse to proceed on the voyage he shall forfeit all wages that may be due him.”

It is not in the record whether or not there was any judge of the United States district court or any justice of the peace of a city, town or place, residing at Libby-ville where the ship was in harbor. At any rate, a majority of the crew, as provided by statute, never demanded any survey by competent and disinterested persons in that harbor. The surveys procured by appellant were undoubtedly disinterested and competent, fairly made, and procured in good faith by appellant, from humanitarian as well as legal motives. Such being the case, when the men in a body refused to return to the ship and actually abandoned and deserted her, they must either be held to a strict performance of the contract, or they are amenable to the statute applying in such cases which makes them deserters, reading as follows:

“Whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offenses he shall be punished as follows:

“First: for desertion by forfeiture of all or any part of his earnings, board and clothes, and of all or any part of the wages, or emoluments which he has then earned. ’ ’

Desertion by a seaman in law consists in quitting the ship and her service without leave and without justifiable cause, and with intent not to return to his duty. The Mary C. Conery, 9 Fed. 222; The William E. Clifford, 165 Fed. 59. And by general martime law as well as by statutes desertion is followed by forfeiture of all wages earned. The Mary C. Conery, supra; the C. F. Sargent, 95 Fed. 179.

“And a deserting sea,man is not even entitled to recover upon a quantum meruit for services rendered in part performance of his contract.” The Liederhorn, 99 Fed. 1001 (syllabus).

Upon the above stated facts and the foregoing principles of maritime law, appellant requested that the verdict of the jury be directed in favor of appellant, which was refused.

Upon the submission of the case to the jury, the trial court instructed the jury as follows:

“If seamen find that the vessel is unseaworthy and they have reason to believe that she is so unseaworthy as to endanger their lives at sea, and they in good faith do so believe, they may lawfully refuse to go to- sea on her. Both law and reason require that a vessel shall be seaworthy before seamen are bound to go aboard her, and navigate her at sea. If you believe from a preponderance of the evidence that when the Coburn was prepared for the return trip to Seattle she was in such condition that ordinarily prudent seamen had reason to apprehend imminent danger; that she could not be navigated upon the sea without danger to the lives of the men, and that the seamen did so believe in good faith, and had reasonable grounds for their belief, then they would be justified in refusing to sail the vessel to Seattle, and they would be entitled to receive the compensation to which they were entitled upon their certificates when adjusted and settled.”

The above instruction entirely disregards the uncontradicted evidence, that while the vessel had leaked on the voyage up she had been repaired, and had been surveyed by disinterested and competent master mariners, and found to be seaworthy for the return trip, and was obviously not in the same condition as she was in on the trip up after the storm of April 18, and that the seamen had not complied with the law of the sea that they should demand a competent survey of the vessel as to seaworthiness, and that they had obdurately, in the face of all the facts as to the seaworthiness of the ship for her return trip, refused to return in her, thereby evidencing not good faith, but bad faith and unreasonableness. On the contrary, under the laws of the sea, or maritime law, the jury should have been instructed, if the case was submitted to the jury at all, as requested by appellant:

“Seamen are not authorized to determine for themselves the question of the seaworthiness of their ship. If they in good faith, believe the ship is unfit to1 go to sea, they may, before leaving the harbor, demand a survey and if that survey is fairly made, by competent persons, such survey must be treated as conclusive for the purpose of determining whether the seamen should or should not proceed on the voyage. ’ ’

And the jury should further have been instructed, if the case were submitted to it, that,

“If the crew, notwithstanding the opinion of the master that the ship was in fact seaworthy, had reasonable grounds to believe the contrary, the master was not compelled to do more than to do what he could under the circumstances to obtain an impartial survey by other competent persons, and if, when the dispute arose between the master of the ‘Abner Coburn’ and her crew as to- the seaworthiness of the vessel, the master did do what he could to obtain an impartial survey by other competent masters, and that such other competent masters pronounced the ship seaworthy, such survey became binding and conclusive upon the crew, and if the crew then persisted in refusing to go aboard the ship in obedience to the master’s orders, they became deserters and subjected themselves to the forfeitures provided by law for cases of desertion.”

But we are convinced, under the law and the facts governing this case, that the crew of the Coburn wilfully and unreasonably acted upon their own opinion as to the seaworthiness of the vessel to make the return trip to Seattle; refused to be governed by the disinterested and -independent surveys made by competent master mariners; refused to go aboard the ship in response to the master’s order; demanded no survey by impartial persons competent to make such survey, and wilfully refused to make the return voyage to Seattle without just cause or reason; and under such circumstances they became deserters. Such being the case they forfeited their wages and all emoluments then earned.

Respondents contend, however, that appellants are bound by the fact that they issued to the men labor certificates in Alaska, before the men returned, for the amount of the wages which would become due them for the voyage, and having sued on these certificates, the company is estopped to deny their right of recovery. These labor certificates were issued by the company’s officers and agents in Alaska, stating the amounts which would become due the men if the contract were fulfilled, and that they were issued under protest as having been coerced from the company’s officers and agents by tbe conduct of tbe men in Alaska. This contention is undoubtedly borne out by tbe testimony of tbe company’s officers and agents, and Captain Dodge of the United States coast guard cutter “Unalga,” and all the circumstances surrounding the transaction. A somewhat similar situation existed in Domenico v. Alaska Packers Ass’n., 112 Fed. 554, cited in this opinion, upon other matters, wherein the libel-ants undertook to show that certain apparatus provided by the respondent were defective, and on that account they demanded increased wages. Sustaining the contention of the libelants the court held that:

“Where a person who has bound himself by contract to render services refuses to do so unless paid more than the contract price, the parties may enter into a new contract by which an increase in compensation is to be paid for the same service, and in such case the subsequent performance of the contract by the promisee is sufficient consideration for the new agreement, and where persons who have contracted to render services refuse without lawful excuse to perform the same unless paid a greater compensation, the employer has his election to sue for damages for breach of the contract, or to enter into a new and substituted contract for the payment of the compensation demanded; and the fact that the former remedy is worthless because the employees are not able to respond in damages, and the employer is induced thereby, and to save himself from greater loss, to yield to the demands of the employees and agree to pay a higher compensation for the same service does not constitute duress which will render the new contract invalid.”

But on appeal to the circuit court of appeals for the ninth circuit, that court, in 117 Fed. 99, disagreed with the district court, saying:

“After having entered upon, the discharge of their contract- and at a time when it was impossible to secure other men in- their places, the libelants, without any valid cause, absolutely refused to continue tbe services they were under contract to perform, unless the appellant would consent to pay them more money. Consent to such demand under such circumstances, if given, was, in our opinion, without consideration, for the reason that it was based solely upon the libelants’ agreement to render the exact services and none other, that they were already under contract to render (italics ours). The case shows that they willfully and arbitrarily broke that obligation. As a , matter of course they are liable to the appellant in damages, and it is quite probable, as suggested by the court below in its opinion, that they may have- been unable to respond in damages.....Certainly it cannot be justly held upon the record in this case that there was any voluntary waiver on the part of the appellant of the breach of the original contract. ’ ’

King v. Railway Co., 61 Minn. 482, 63 N.W. 1105, is cited and quoted as follows:

“No astute reasoning can change the plain fact that the party who refuses to perform, and thereby coerces a promise from the other party to the contract to pay him an increased compensation for doing that which he is legally bound to do, takes an unjustifiable advantage of the necessities of the other party. Surely it would be a travesty on justice to hold that the party so making the promise for extra pay was estopped from asserting that the promise was without consideration. A party cannot lay the foundation of an estoppel by his own wrong, where the promise is simply a repetition of a subsisting legal promise. There can be no consideration for the promise of the other party, and there is no warrant for inferring that the parties have voluntarily rescinded or modified their contract. The promise cannot be legally enforced, although the other party has completed his contract in reliance upon it. ’ ’

The opinion also cites and quotes from Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578, 23 Am. St. 900, to the same effect, and distinguishes and rejects a number of cases cited counter thereto and cites a number of cases to sustain the holding of the circuit court of appeals in the case quoted.

We are of the opinion that the reasoning and decision in the above case by the circuit court of appeals are controlling in this analogous situation. ■

Here, the men deserted and abandoned the ship and its enterprise in a body, at a remote point where other men could not be obtained to continue the enterprise and voyage, and where, from humanitarian motives alone,' it was absolutely impossible to evade the duty of returning the men from that region to the initial port; and because they unanimously abandoned and deserted the ship and refused all efforts to persuade them to perform their duty and fulfill their contract, they compelled the appellant to give them certificates of labor performed while in Alaska or on the voyage thereto, and to furnish them maintenance and transportation out of that region; all-of which constituted duress of the most forceable kind, and gives no validity to the labor certificates issued in Alaska, or to recovery upon the original contract wilfully forfeited and abandoned by the men themselves.

Therefore, although mindful that we “should be careful not to so construe the law as to force a crew to risk their lives on an unseaworthy ship,” we are convinced by the record in this case, and the law applying, that appellant did everything in its power to humanely care for these men, and paid out a great deal of money in excess of their contract pay, on account of their unreasonable, obstinate and arbitrary conduct, and that the men forfeited and are not entitled to recover their wages. The jury should have been instructed to render a verdict for appellant.

The judgments are reversed and the cases dismissed.

Pabkeb, C. J., Tolman, Main, Mackintosh, Bbidges, and Mitchell, JJ., concur.