NEILSON ET AL.
v.
RHINE SHIPPING COMPANY, CLAIMANT OF THE SAILING SHIP "RHINE."
HARDY ET AL.
v.
SHEPARD & MORSE LUMBER COMPANY, CLAIMANT OF THE BARKENTINE "WINDRUSH."
Nos. 393, 394.
Supreme Court of United States.
Argued November 5, 1918. Decided December 23, 1918. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.*206 Mr. Silas B. Axtell, with whom Mr. Vernon S. Jones was on the brief, for petitioners.
Mr. Roscoe H. Hupper for respondents.
Mr. Assistant Attorney General Brown, with whom Mr. Robert Szold was on the brief, for the United States as amicus curiae:
*211 MR. JUSTICE DAY delivered the opinion of the court.
These cases were considered together in the courts below and may be disposed of in like manner here.
The facts are:
In the first case Paul Neilson and nine other seamen sue for the recovery of wages claimed to be due them from the bark "Rhine." It appears that they shipped on the American bark "Rhine" at Buenos Ayres, October 7, 1916, for a voyage to New York, at the rate of $25 per month. It is stipulated that the shipping of seamen on sailing vessels at Buenos Ayres is controlled by certain shipping masters, to one of whom the libelants, in accordance *212 with the usual custom and as a means of securing employment, signed a receipt or advance note for one month's wages. These advance notes were presented to the American Vice-Consul at Buenos Ayres before the libelants signed the articles, were by him noted on the articles and, in the presence of the libelants, directed to be paid on account of the wages of the respective libelants. It was further stipulated that in directing the master of the "Rhine" to honor such advance notes, the Consul was acting in accordance with § 237 of the Consular Regulations of the United States. When the bark arrived at New York the libelants were paid the wages earned, less the $25 advanced. They now seek to recover the sum thus deducted, by virtue of the terms of § 11 of the Act of March 4, 1915, entitled "An Act To promote the welfare of American seamen in the merchant marine of the United States," upon the theory that such advances are unlawful and of no effect.
The facts in relation to the case of the Barkentine "Windrush" differ from the above only in respect of the fact that the advance notes are not in evidence, but are noted on the articles.
The District Court decided in favor of the libelants. 244 Fed. Rep. 833. The Circuit Court of Appeals reversed the decrees. 250 Fed. Rep. 180. The cases are here on writs of certiorari.
The section of the statute is the same as that involved in the case of The Talus [Sandberg v. McDonald], No. 392, ante, 185. The difference is that the advances were made by the master of an American vessel in a South American port, whereas in The Talus the advancements were made to foreign seamen in a British port. The same general considerations as to the interpretation of the statute which controlled in the decision of the case of The Talus are applicable here and need not be repeated.
That American vessels might be controlled by congressional *213 legislation as to contracts made in foreign ports may, for present purposes at least, be conceded. It appears that only by compliance with the local custom of obtaining seamen through agents can American vessels obtain seamen in South American ports. This is greatly to be deplored, and the custom is one which works much hardship to a worthy class. But we are unable to discover that in passing this statute Congress intended to place American shipping at the great disadvantage of this inability to obtain seamen when compared with the vessels of other nations which are manned by complying with local usage.
The statute itself denies clearance papers to vessels violating its terms. This provision could only apply to domestic ports and is another evidence of the intent of Congress to legislate as to advances made in our own ports.
Affirmed.
MR. JUSTICE McKENNA, with whom concur MR. JUSTICE HOLMES, MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE, dissenting.
These cases were submitted with Nos. 361 [Dillon v. Strathearn S.S. Co., ante, 182,] and 392, [Sandberg v. McDonald, ante, 185,] and, like them, are proceedings in admiralty under the Seamen's Act of 1915, 38 Stat. 1164-1168.
The facts are set out in the opinion of the court. In these cases, as in others, we are constrained to dissent. The principle of decision should be, we think, that declared in our dissent in The Talus, ante, 185. The facts of these cases put more tension upon it, that is, an adhesion to the words of the statute as determinative of its purpose rather than some of its consequences. We have here the somewhat appealing force of a picture *214 of an American ship only able to escape practical internment in a foreign port by a violation of the law, if it be as we have declared it. And this under the sanction of the United States Consul acting under the following regulation of the Department of State:
"237. Advances to Seamen Shipped in Foreign Ports. The shipment of seamen in foreign ports cannot be considered as within the intention, and hence not within the proper construction, of the Act referred to in the next preceding paragraph [inserted in the margin].[1] The final clause of the Act, which declares that this section shall apply as well to foreign vessels as to those of the United States, and that in case of violation a clearance shall be refused them, is a clear indication that Congress did not in this section refer to the shipment of seamen in foreign ports, but had in view acts done in the United States alone. The provision of the statute as to payment of advance wages is not intended to apply to seamen shipped in foreign ports. In the settlement of wages due seamen in such cases, therefore, consular officers will take into account what has been paid in advance. 22 Fed. Rep. 734."
*215 We are unable to assent. We regard the act of Congress as clear and that the theatre of its injunction is the harbors of the United States. It is misleading to dwell upon the jurisdiction of other places, which is but another name for control. The jurisdiction, control, is in and by the United States and the command is that advances shall not be deducted from wages of seamen on vessels, American or foreign, while in the waters of the United States. Where they were made or under what circumstances made are not factors in judgment. They are the mere accidents of the situation and if they reach the importance and have the embarrassment depicted by counsel, the appeal must be to Congress, which no doubt will promptly correct the improvidence, if it be such, of its legislation. We have already expressed our view of the control of the language of the law and that it is a barrier against alarms and fault-finding.
It hence follows that we are of opinion the judgment of the Circuit Court of Appeals in each case should be reversed and that of the District Court affirmed.
NOTES
[1] "236. No Advance Wages. Except in case of whaling vessels, it is not lawful to pay any seaman wages before leaving the port at which such seaman may be engaged in advance of the time when he has actually earned the same, or to pay such advance wages to any other person, or to pay to any one except an officer authorized by Act of Congress to collect fees for such service, any remuneration for the shipment of a seaman. If any such advance wages or remuneration shall have been paid or contracted for, the Consul, in making up the account of wages due the seaman upon his discharge, will disregard such advance payment or agreement and award to the seaman the amount to which he would be entitled if no such payment or agreement had been made. Nor should Consuls permit the statute to be evaded indirectly, as by part payment in advance and then stating rate of wages too small. R.S., §§ 4532, 4533; 23 Stat. L. 55, § 10; 24 Id. 80, § 3; 27 Fed. Rep. 764."