Boston v. Ocean Steamship Co.

83 N.E. 1116, 197 Mass. 561, 1908 Mass. LEXIS 766

Opinion

Braley, J.

The defendant’s requests for rulings were properly refused. By the shipping articles the plaintiff engaged to perform the voyage from port to port and return, and his wages were not payable until the expiration of his term of service, unless he was wrongfully discharged before the completion of the agreement. Taber v. Nye, 12 Pick. 105. The William Jarvis, 1 Sprague, 485. O’Neil v. Armstrong, [1895] 2 Q. B. 70. But while he served as “ mess boy ” on the outward passage, he returned on the vessel as a passenger, and under either count of the declaration his right of recovery rests upon the ground, that having been ready and willing to perform the contract, performance became impossible because the master, who was the defendant’s agent, unjustifiably discharged him before the voyage ended. Croucher v. Oakman, 3 Allen, 185. Baxter v. Doe, 142 Mass. 558, 561. Hoyt v. Wildfire, 3 Johns. 518. The master deposed that the plaintiff received his discharge for violation of the shipping articles in being absent from the ship without permission. Upon this question the evidence was conflicting. The plaintiff, while admitting his absence, gave evidence that during the passage out he had been assaulted by the ship’s firemen, and applied to the mate for permission to go ashore, not only for the purpose of receiving medical treatment, but to make a complaint to the commissioner for the assault. This officer, whose authority was not questioned, issued the usual certificate for sick or disabled seamen, under which he had the right to be temporarily absent, but while the issuance of the certificate was admitted,- the mate in his deposition asserted that the plaintiff made no reference to his desire to consult the commissioner. If, however, the jury believed the plaintiff, the permission included both, and he had not been guilty, either of a disobedience of orders, or of a violation of his contract. But, if the privilege had been limited, the master’s right to discharge him before the termination of the voyage, depended upon whether he had become disqualified for further service, or his conduct had been such as to constitute a serious breach of the ship’s discipline. 3 Kent Com. (14th ed.) 183. The El Dorado, 1 Lowell, 289. The Nimrod, 1 Ware, 9. Smith v. Treat, 2 Ware, 270, 294. It was accordingly a question of fact, whether under the circumstances he had been guilty of such misconduct as to justify the defendant in terminating his contract. Atkyns v. Burrows, 1 Pet. Adm. 244.

It is insisted that the plaintiff consented, but his consent could have been found conditional upon receiving a full month’s wages, which were not paid, and this defence fails. See Rosenberg v. Doe, 146 Mass. 191, 193. If the contract remained in force, the order,

Footnotes

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* which never has been collected or negotiated, and althoügh tendered to the defendant at the trial was refused, did not constitute a release, as it was unsealed, nor an accord and satisfaction of the principal debt; unless accepted by the plaintiff. Tuttle v. Tuttle, 12 Met. 551. Upon variant evidence, it was a question of fact whether the plaintiff, who was illiterate, without money, and away from home, after having been unlawfully denied further recognition as a member of the ship’s company, agreed to receive a week’s wages in full satisfaction of his claim. Tompkins v. Hill, 145 Mass. 379. Fee v. Orient Fertilizing Co. 36 Fed. Rep. 509; S. C. 44 Fed. Rep. 430.

Nor can it be said, either under the general maritime law or at common law, that the verdict was in excess of the measure of liability, because the plaintiff was permitted to recover the amount paid for his return passage. The damages suffered by a wrongful discharge, ordinarily, are the loss of time until in the exercise of reasonable diligence further employment can be obtained. But, in the present ease, the plaintiff, having been deprived of the benefit of the contract under which the defend ant was bound to transport him to the port of shipment, the expenses incurred in returning formed a part of the indemnity to which he was entitled for the wrong suffered. Croucher v. Oakman, ubi supra. Calvin v. Huntley, 178 Mass. 29. Thompson v. The Sam Brown, 45 Fed. Rep. 508.

Exceptions overruled.

This was an order signed by the master, directing the treasurer of the defendant to pay to the plaintiff $2.50 for services as mess boy on the steamship City of Augusta “ during the month of February 6 to 10,1906, five days at $15 per month.”