The Kentigern

99 F. 443, 1900 U.S. Dist. LEXIS 348

• Court: District Court, E.D. New York
• Decided: January 20, 1900
• Status: Published

Opinion

THOMAS, District Judge.

Four foreign seamen filed the libel herein for services rendered the British ship Kentigern under a contract made in December, 1898, which required such services for the entire term of two years. While the ship was at the port of New York, these libelants applied to the British consul for release from the service on account of the alleged brutality of the officers of the vessel; but that officer, after investigation, denied the application, directed the libelants to return to the ship, and requested this court to decline jurisdiction of the matter. Each libelant has testified fully to occasions when he was subject' to an unmerited assault or assaults on the part of the captain or other officer of the ship. These instances, save one, preceded the arrival of the ship at Philadelphia, where she loaded, whence she sailed to New York and went on the dry dock. She reached the last-named port on July 20, 1899, and sailed therefrom August 9th, after seizure on August 8th. Hone of the libelants announced a severance of the stipulated relation at Philadelphia, nor even at New York, until the ship had been some days in port; and none of them left the ship, as the evidence is understood, until after the 1st of August.

It is considered that a seaman who conceives that his contract for service is abrogated by the tortious act of the master or other officer of a ship should act on such conception of his rights at the earliest reasonable opportunity, and, if he suffer á suitable occasion to lapse, he should be deemed to have condoned the wrongful act, so far as the same affected the continuance of the contract. In other words, his conduct is inconsistent with the assertion of a breach. This doctrine may be subject to- the modification that a seaman, may continue aboard until the ship reaches the home port, or a port of the jurisdiction to which the ship belongs. But if a British ship touches at a foreign port where there is a British consul, to whom protest of the officers’ behavior may be made, the seaman should declare at that port his option to avoid the contract. He may not hold in abeyance the exercise of this right until at a later time a port shall be reached which he prefers, as a more convenient port for the purpose of severing his connection with the ship. WTiy did not the libelants accuse the officers at the port of Philadelphia? Why did they not. seek release at that port? Why did they not leave the ship at that port? The wrongs, save in a single instance, had been done. The contract had been vitiated, at their election. Their continuance on the ship, after full opportunity to leave it, was an election to regard the contract as unbroken. Even after arrival at New York they enjoyed the leisure incident to the dry-docking of the ship, and were unmindful of past wrongs for some days. Such conduct does not accord with the promptitude that should be required of a person who would annul a contract for personal services on account of physical harm tortionsly received from the master in the course of the service.

The libelant Von Diesen states that the master assaulted Mm in the port of Yew York. This was within the police limits of the United States and the jurisdiction of this court. If the present action were for the purpose of recovering damages for such assault, it would be entertained justly, and an action for services based upon a contract broken by the same wrongful act may be entertained with propriety, notwithstanding the protest of the British consul. The alleged violation of the police laws would give the offended seaman full right to leave the ship, and demand enforcement of Ms rights in the local tribunal. It is true that he waited in the port some days before availing himself of the right to avoid the contract. But the evidence on this point is meager. Hence the question whether such delay condoned the alleged assault is left for determination after trial on the merits.