Where a seaman went ashore at a port of call for hospital
treatment, and, being asked only to sign for his past wages without
mention of a discharge, executed with the master a mutual release
under Rev.Stats., § 4552, but was not given a certificate of
discharge as required by § 4551, and the purport of the overt
acts in the circumstances was not to release his claim for future
wages, maintenance, and cure during the remainder of the ship's
voyage,
held (considering also the power given by c. 153,
38 Stat. 1165, to set aside such releases and "take such action as
justice shall require") that the release was not a bar to the
assertion of such claim in a libel in admiralty. P.
258 U. S.
267.
264 F. 938 affirmed.
Certiorari to a decree of the circuit court of appeals affirming
a decree of the district court in admiralty awarding the libelant
the amounts he was compelled to pay for subsistence and medical
treatment at a port of call where he left the ship for hospital
treatment, and the amount of his wages from that time until the
ship completed her voyage.
Page 258 U. S. 267
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a libel brought by the respondent to recover $219 for
wages, subsistence and medical attendance, the libellant having
been left at Honolulu, ill, in the course of a voyage from San
Francisco to the Orient and return. The defense is that he was not
ill, that, ill or well, he should have remained upon the vessel,
and further that he was discharged, and signed the mutual release
required by Rev.Stats. § 4552, and by that section made a bar.
The circuit court of appeals confirmed the finding of the district
court that the libellant was not malingering, and, as we take it,
although it is argued otherwise, also in finding that the doctor
and master of the ship were willing that the libellant should go to
the Marine Hospital. The only question that we see reason for
considering is whether the two courts were right in holding that
the libellant was not concluded by the release.
Both courts have found that the respondent was only asked to
sign for his wages, that a discharge was not mentioned, and, to put
it in our own way, that the purport of the overt acts in the
circumstances was not to release the libellant's claim. The
petitioner cites the words of Rev.Stats. § 4552, and
Rosenberg v. Doe, 146 Mass.191, to show that such a
position is impossible. But the same case at a later stage, 148
Mass. 560, admitted a different result where the sailor knew too
little English to understand the nature of the document and there
was evidence that it was misstated to him. In the present case, we
have the further very important fact, which does not appear in the
report of
Rosenberg v. Doe, that the master did not give
the respondent a certificate of discharge, as he was required to
under a penalty of fifty dollars by Rev.Stats. § 4551, if the
respondent really was discharged. Moreover, by a statute later in
its present form than
Rosenberg v. Doe, it is provided
that, notwithstanding the statutory
Page 258 U. S. 268
release, "any court having jurisdiction may upon good cause
shown set aside such release and take such action as justice shall
require." Act of March 4, 1915, c. 153, § 4; 38 Stat. 1164,
1165. We are not prepared to say that the finding of the two courts
was wrong.
Decree affirmed.
