Heino v. Libby, McNeill & Libby, 116 Wash. 148, (1921).

148 HEINO v. LIBBY, McNEILL & LIBBY.
Syllabus. 116 Wash.

               [No. 16094. En Banc. June 21, 1921.]
      H. HEINO et al., Respondents, v. LIBBY, McNEILL &
                     LIBBY, Appellant. «1»

SEAMEN (2) - SHIPPING ARTICLES - CONTRACTS - "MERCHANT SHIPS" -
WHAT LAW GOVERNS. A vessel engaged in domestic commerce
between ports of one state and noncontiguous territory is a
merchantman subject to the operation of maritime law, and the
shipping regulations promulgated by the United States statutes,

SAME (2) - ARTICLES - PERFORMANCE OF CONTRACT - SURVEY -
ABANDONMENT OF SHIP - SEAWORTHINESS - EVIDENCE - SUFFICIENCY.
Where shipping articles are signed by men employed as seamen,
fishermen, beachmen and trapmen, under a contract to sail a vessel
from Seattle to a port in Alaska, work during the fishing season
as fishermen, beachmen or trapmen, and at the close of such season
sail the vessel back to Seattle, the contract as a whole is of a
maritime character, notwithstanding the extra provisions covering
fishery services.

SAME - WAGES - FORFEITURE. Seamen employed under shipping
articles to sail a vessel on the return voyage from an Alaskan
port to Seattle, have no justification for abandoning their
contract on the ground of the unseaworthiness of the vessel, where
a survey of the vessel was made by three disinterested master
mariners, and also by a board of survey consisting of the
commander of a U. S. coast guard cutter and three other officers
of his ship, the surveyors in both instances finding the vessel
seaworthy and fit to make the voyage from Alaska to Seattle; and
their refusal to serve as seamen, without making any demand for a
survey, constituted them deserters under the statutes of the
United States.

SAME - WAGES - FORFEITURE - DESERTION. A deserting seaman
not only forfeits his wages or emoluments which he has earned, but
also forfeits the right to recover upon a quantum recruit for
services rendered in part performance of his contract.

SAME - WAGES - ISSUANCE OF CERTIFICATES - EFFECT. Labor
certificates issued to a crew of seamen and fishermen, stating the
amounts that would become due them on fulfillment of their
contract would not estop the employer to deny the right of
recovery, where the certificates were secured by coercion after
the crew had become deserters under their shipping contract.
FULLERTON, J., dissents.

«1» Not yet reported in Pacific Reporter.

HEINO v. LIBBY, McNEILL & LIBBY. 149
June 1921 Opinion Per HOLCOMB, J.

Appeal from a judgment of the superior court for
King county, Smith, J., entered April 27, 1920, upon
the verdict of a jury rendered in favor of the plaintiffs,
in consolidated actions to recover seamen's wages,
after a trial on the merits. Reversed.

Kerr & McCord and Stephen V. Carey, for appellant.

H. E. Foster, for respondents.

HOLCOMB

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 Coburn"
from Seattle to Libbyville, Alaska, and to work
as 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

150 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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
_

HEINO v. LIBBY, McNEILL & LIBBY. 151
June 1921 Opinion Per HOLCOMB, J.

contract to perform the labor and were divided into
three groups, namely: (1) seamen, fishermen, beachmen
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 merchant 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.

152 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 storm, 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

HEINO v. LIBBY, McNEILL & LIBBY. 153
June 1921 Opinion Per HOLCOMB, J.

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 be overhauled
and fitted for the return voyage, and, among other
things, caused the leaking butts to be 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 be 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
turn trip the butts which had leaked on the up trip
were above water. The master then ordered the crew
aboard for the return voyage, but 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 Libbyville, and took charge of the

154 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

situation. 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 Coburn
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

HEIN0 v. LIBBY, McNEILL & LIBBY. 155
June 1921 Opinion Per HOLCOMB, J.

aboard his own vessel, the "Unalga," and towed the
Coburn 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.

While 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

156 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

and beachmen from Libbyville to Unalaska, and from
Unalaska to Seattle on a seaworthy vessel, excluding
the "Abner Coburn", 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 fishermen,
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,

HEINO v. LIBBY, McNEILL & LIBBY. 157
June 1921 Opinion Per HOLCOMB, J.

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.

158 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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. 554, 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."

HEINO v. LIBBY, McNEILL & LIBBY. 159
June 1921 Opinion Per HOLCOMB, J.

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.), SS 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 SS 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

160 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 States, 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:

HEINO v. LIBBY, McNEILL & LIBBY. 161
June 1921 Opinion Per HOLCOMB, J.

"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 labor to
interfere with its proper harmony and uniformity in its
international and interstate relations. To preserve
adequate harmony 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

162 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 SS 12 of the supplemental contract between the
men and appellant.

Subdivision "f" of SS 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 SS 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

HEINO v. LIBBY, McNEILL & LIBBY. 163

June 1921 Opinion Per HOLCOMB, J.
ship and its enterprise before the voyage is completed.
They signed up for the voyage from Seattle to
Libbyville, 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
l64 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 maiming 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 uncondradicted
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, wile refused to be bound
by them.

HEINO v. LIBBY, McNEILL & LIBBY. 165
June 1921 Opinion Per HOLCOMB, J.

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 his 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 SS 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

166 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 him two or more of the crew who shall have made
such request, and providing a penalty for failure to
comply with such demand; and SS 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
Libbyville 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:

HEINO v. LIBBY, McNEILL & LIBBY. 167
June 1921 Opinion Per HOLCOMB, J.

"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 H. Clifford,
165 Fed. 59. And by general maritime 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 seaman is not even entitled to recover
upon a quantum recruit 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

168 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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 to 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

HEINO v. LIBBY, McNEILL & LIBBY. 169
June 1921 Opinion Per HOLCOMB, J.

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

170 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

officers and agents by the conduct of the men in
Alaska. This contention is undoubtedly borne out by
the testimony of the 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
libelants 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

HEINO v. LIBBY, McNEILL & LIBBY. 171
June 1921 Opinion Per HOLCOMB, J.

valid cause, absolutely refused to continue the 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

172 HEINO v. LIBBY, McNEILL & LIBBY.
Opinion Per HOLCOMB, J. 116 Wash.

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.

PARKER, C.J., TOLMAN, MAIN, MACKINTOSH, BRIDGES,
and MITCHELL, JJ., concur.

HEINO v. LIBBY, McNEILL & LIBBY. 173
June 1921 Dissenting Opinion Per FULLERTON, J.

FULLERTON, J. (dissenting) - This is an action
brought by the respondents, who were plaintiffs below,
to recover upon a written contract for services performed.
The cause was tried in the court of its origin
by a jury, who found that the plaintiffs and their
assignors had earned under the contract sums aggregating
$25,613.76, and judgment was entered in their
favor for these sums. This court, in the foregoing
opinion, does not question the finding of the jury as to
the amount earned by the plaintiffs under the contract,
but finds, contrary to the finding of the jury, that there
was a breach of the contract, and as matter of law
concludes that because of the breach there has been a
forfeiture of the sums earned, and directs that there be no
recovery. The sum stated represents practically a
year's earnings of nearly one hundred men, and the
effect of the holding is to take from them this
considerable sum and vest it in the defendant, their employer.
I can but believe the result is due to the application of
erroneous principles of law, and I feel justified, because
of the importance of the case to the plaintiffs,
in stating, although somewhat at length, the grounds
for my belief.

In the first place, I think the majority have placed
a construction upon the contract that it cannot legally
bear. It is held that the contract is one and entire,
that it is in its effect the same contract that a seaman
enters into when he binds himself to a. vessel to serve
as a seaman thereon for a stated period, or for a given
voyage, and that the same rigorous rules are applicable
thereto that are applicable to the ordinary seaman's
contract. With this I cannot agree. As shown by the
opinion, the contract consisted of two parts, the one
entirely separable and distinct from the other. The
first part consisted of ordinary shipping articles by

174 HEINO v. LIBBY, McNEILL & LIBBY.
Dissenting Opinion Per FULLERTON, J. 116 Wash.

which the plaintiffs agreed to act as seamen in sailing
the vessel, "Abner Coburn," from the port of Seattle in
the state of Washington to the defendant's cannery, on
Behring Sea, in the territory of Alaska, and to act as
seamen in sailing the vessel on its return voyage at a
later period. In the second part of the contract, they
agreed to catch salmon for the defendant in the waters
adjacent to the cannery during the period of the salmon
run. For the performance of the first part of the contract,
they were each to receive certain stated and
definite sums, measured by the capacity in which they
acted; and for the performance of the second part,
they were to be paid a price for the number of fish
caught and delivered, the price varying according to
the variety of the fish.

The first part of the agreement may be essentially
maritime in its nature, and it may be that the ordinary
shipping articles were necessary to be entered into
before its performance was entered upon. But it is
clear to my mind that the second part of the agreement
was in no sense maritime as that term is understood in
admiralty. No shipping articles were necessary to be
entered into by any one as a condition precedent to its
performance. In fact, the present record shows that a
number of persons engaged in fishing along with the
plaintiffs who did not and who were not asked to sign
the shipping articles. But more than this, the business
from its nature cannot be maritime. In a maritime
contract the person agrees to serve as a seaman
on a vessel engaged in commerce as a common carrier
for a given period of time or for a given voyage. In the
other, the work is not performed on a common carrier.
The fishing is done in small boats operated by the
fishermen themselves; the boat engages in no form of
trade, and the work involves no element of public interest,
but is purely of a private nature. It seems to

HEINO v. LIBBY, McNEILL & LIBBY. 175
June 192 l Dissenting Opinion Per FULLERTON, J.

me to follow conclusively from these differences that
the breach of one part of the contract cannot be a
breach of the other, and if the majority are correct in
holding that there was a breach of the contract to
navigate the vessel, and that because of the breach the
plaintiffs have forfeited their right to the
compensation agreed to be paid for that service, they are in
error in holding that the breach operates as a
forfeiture of their earnings under the second part of the
contract.

The cases cited by the majority, as I read them, do
not sustain the contrary conclusion. In none of them
was the particular question raised or discussed. The
cases are, for the most part, all instances where the
plaintiffs, suing on the contracts, brought their suits in
the admiralty courts, and where objection was made to
the jurisdiction of the court because the contracts were
not maritime in character. The jurisdiction was sustained
on the theory that a contract, maritime in part,
carries its incidentals with it, and the latter though
non-maritime will be heard and decided. It was not,
however, decided in any of the cases that the rules
applicable to the maritime part of the contract will be
applied in determining the issues not maritime, much
less was it decided that a breach of the maritime part
of the contract, although sufficient to work a forfeiture
of wages earned thereunder, would work a forfeiture
of the earnings under that part of the contract essentially
non-maritime.

In the next place, I think the majority have given an
unwarranted effect to the so-called surveys made of the
vessel while it was at anchor at the cannery in Behring
Sea. It is true that the Federal statute provides for a
survey of a vessel when a majority of the crew may
deem it unseaworthy for any cause, and further provides
that if upon such a survey the vessel is

176 HEINO v. LIBBY, McNEILL & LIBBY.
Dissenting Opinion Per FULLERTON, J. 116 Wash.

pronounced seaworthy any seaman who refuses to proceed
on the voyage shall forfeit all wages that may be due
him. But the statute also provides the manner of
selecting the surveyors, and enough appears in the
majority opinion to show that the statute was not in
this respect even substantially pursued. The survey
therefore had no official sanction. Legally, the findings
of the surveyors were nothing more than the expressed
opinions of private individuals. I am aware that the
majority say that these surveys "were undoubtedly
disinterested and competent, fairly made and procured
in good faith by the" defendant; but, conceding that
the evidence justified the statement, I am unable to
understand just what it signifies. The defendant is
claiming the right in virtue of a statute to forfeit to
itself a large sum of money which belongs to the
plaintiffs, and certainly it is no hardship to say that, before
it is permitted to do so, it show a strict compliance with
the statute. Forfeitures are never favored. It is only
where the inflexible rules of law will permit of no other
course that they will be granted. Here, I may repeat,
there was no compliance nor attempted compliance
with the statute. Since the right of forfeiture, in so
far as tiffs branch of the case is involved, depends upon
the statute, I can but think the majority in error in
holding that the surveys justify an adjudication of
forfeiture.

And here I may properly notice the further holding
that seamen are not authorized to determine for
themselves the question of the seaworthiness of their ship.
This is not an absolute rule. Its application depends
upon circumstances. If the vessel is in a port where
the ordinary processes of government are functioning,
seamen who believe the vessel in which they are required
to sail is unseaworthy, are by statute required
to demand a survey, and if the survey is made in

HEINO v. LIBBY, McNEILL & LIBBY. 177
June 1921 Dissenting Opinion Per FULLERTON, J,

accordance with the terms of the statute, the seamen are
concluded by it. But the rule has no application to
conditions such as were here shown. The vessel was
on a bleak, uninhabited coast, hundreds of miles from
any place where organized form of government existed.
Contrary to the statement in the majority opinion, the
record does show that there was no judge of the United
States district court, or justice of the peace residing at
Libbyville to whom application for a survey could be
made. One of the defendant's own witnesses expressly
testifies that there were no others at the cannery except
the cannery people. By the terms of the statute, the
officers named are the only persons authorized to appoint
surveyors. To apply for a survey would have
been a useless procedure on the part of the seamen, and
seamen, no more than any other class of persons, are
required to do useless things in order to preserve their
rights. Their rights, therefore, to determine the seaworthiness
of the vessel stood as they did stand prior
to the enactment of the statute, and what these rights
were is stated by Judge Curtis in United States v. Nye,
Fed. Cas. No. 15,906, in the following language:

"I think the correct rule is, that after the men have
rendered themselves on board, pursuant to their contract,
and before the voyage is begun, they may lawfully
refuse to go to sea in the vessel, if they have
reasonable cause to believe and do believe the vessel to
be unseaworthy. But the presumption is that the
vessel was seaworthy; and the seamen must prove that
they acted in good faith and upon reasonable grounds
of belief that the ship was not in a fit condition to go
to sea by reason of unseaworthiness. If they prove
this, they are justified in their refusal."

Again, I am unable to agree with the majority in the
assumption that the facts of the case are before us for
decision. These facts are important. For example, it
is found on conflicting testimony that the agreement

178 HEINO v. LIBBY, McNEILL & LIBBY.
Dissenting Opinion Per FULLERTON, J. 116 Wash.

made at the cannery after the close of the work to
transport the crew from the cannery to Unalaska, and
from Unalaska to Seattle on a seaworthy vessel at the
expense of the defendant, was not authorized by the
defendant or any of its authorized agents; it is found
on conflicting testimony that the seamen wrongfully
conspired together for the purpose of bringing about
an abandomnent of the ship, or the enterprise on which
the ship was engaged; it is found on conflicting
testimony that the ship, by the repairs made upon it by the
carpenter while at the cannery placed the vessel in a
seaworthy condition; it is found on conflicting testimony
that the labor certificates, showing the amount of
the earnings, were issued under coercion; and finally
it is found that the plaintiffs deserted and abandoned
the ship at a remote point where other men could not
be obtained, and that because of these and other facts,
the men became deserters.

In my opinion these were facts which this court is
without power to determine on conflicting testimony;
that they were questions for the jury in the court below,
and that their findings on them are conclusive upon
this court. As stated in the majority opinion, the
United States judicial code does not give exclusive
jurisdiction to the admiralty courts in maritime causes.
The act saves "to suitors in all cases the right of a
common law remedy where the common law is competent
to give it." There is no question here that the
common law can give the remedy. If this were not true
this court should dismiss the action for want of
jurisdiction, not reverse it and direct a judgment for the
defendant. Since the act saves to suitors the common
law remedy, it saves to them the remedy as it is usually
administered at common law. One of the oldest of
these remedies is to have the facts of the controversy
determined by a jury, and I can conceive of no reason,

HEINO v. LIBBY, McNEILL & LIBBY. 179
June 1921 Dissenting Opinion Per FULLERTON, J.

certainly none is stated by the majority, why the
plaintiffs did not have the same right in this cause as they
would have in any other cause triable in a common law
court, to have the facts of the cause determined by a
jury. The conclusion reached by the majority on the
question is, moreover, contrary to our holdings in the
cases of Larson v. Alaska Steamship Co., 96 Wash. 665,
165 Pac. 880, L. R. A. 1917F 671, and Sandanger v.
Carlisle Packing Co., 112 Wash. 480, 192 Pac. 1005.
These were actions for personal injuries suffered by
seamen, due to defects in the equipment of the vessels
on which they were sailing. One of the questions submitted
in each of the cases was whether the remedy of
admiralty or the remedy of the common law should be
applied. The court held in each case, "that the common
law courts of a state have jurisdiction concurrent
with the Federal courts when proceeding in personam,
and that the state court will grant the relief that a
common law court would have granted had the case
been originally triable in such court," and applied the
remedy of the common law, although the remedy differed
from that afforded in admiralty. The majority
do not notice these cases, but I can see no way in
which they can be reconciled with the rule now announced,
namely, that the saving clause in the statute
confers only "an alternative right to sue in common
law actions in the state courts," and "that the reciprocal
rights, duties and obligations of the parties are
governed by the rules and principles of admiralty
law."

As I have before indicated, the ultimate question for
the determination of the jury was whether or not the
plaintiffs had reasonable cause to believe that the
vessel was unseaworthy at the time they refused to return
upon her. This issue they found in favor of the plaintiffs,

180 HEINO v. LIBBY, McNEILL & LIBBY.
Dissenting Opinion Per FULLERTON, J. 116 Wash.

and in my opinion, there was abundant evidence
in the record to justify the finding. The vessel was
old, having been built in the year 1882. She was acquired
by the defendant in 1913. Prior to that time
she was commissioned as a merchant vessel, although
for a year previous she had lain inactive in the harbor
of San Francisco. After the defendant acquired her,
she was not used in the merchant service, but was used
solely for carrying supplies and fishermen to the
different canneries operated by the defendant, making but a
single trip each year. In 1917, while being sailed to a
cannery, she sprang a leak in the first gale encountered,
and was brought back, temporarily repaired, and taken
to the cannery in tow. In 1918, she encountered ice on
her trip, and the evidence of the carpenter is that on
this occasion she received severe strains. On the trip
here concerned she also sprang a leak at the first gale
encountered. This leak was, to my mind, much more
serious than the majority seem to consider it. Water
poured into the hold of the vessel in sufficient
quantities to cause it to rise therein at the rate of ten inches
an hour. The vessel was over three hundred feet in
length, with a beam of thirty-eight feet, and it requires
no very intricate mathematical calculation to show that
the quantity was considerable. It was sufficient at any
rate to thoroughly frighten the crew. Many of these
were men who, in their earlier years, had followed the
sea, and men who would know a dangerous leak in a
vessel as well as would any other person. No ordinary
leak would cause them concern, and the fact that they
were alarmed is in itself evidence that the leak was
unusual and dangerous.