Sandberg v. McDonald/Dissent McKenna

Mr. Justice McKENNA, with whom concur Mr. Justice HOLMES, Mr. Justice BRANDEIS, and Mr. Justice CLARKE, dissenting.

This is a libel in admiralty under the Seamen's Act of 1915 (38 Stat. 1165-1168), especially involving section 11 (Comp. St. 1916, § 8392a).

The libel was filed by petitioners here and others. It was dismissed as to the latter and they have acquiesced in the judgment. The facts are set out in the opinion of the court.

With this case were submitted others that present the act of Congress in different aspects. Among these was No. 361. Dillon v. Strathearn S. S.C.o., 248 U.S. 182, 39 Sup. Ct. 83, 63 L. Ed. 199. It was a libel by a seaman who had shipped on a British vessel and was based on a demand for wages not due at the time of the demand under the terms of the shipping articles signed by him. Section 4 (section 8322) of the act, infra, was especially involved in consideration and its constitutionality was attacked by the ship. The Circuit Court of Appeals for the Fifth Circuit, to which the case had gone, presented the question to this court in two aspects, first generally, and, second, more particularly that provision which makes the section 'apply to seamen on foreign vessels while in the harbors of the United States.'

In the present case the ship is also British and the libelants and petitioners citizens or subjects of nations other than the United States, and the controversy is as to the right of the master to deduct from the wages, of which the law authorizes the demand, advances made to the seamen in Liverpool, England. To make such advances was a practice usual and customary and not forbidden by English law. It would seem, therefore, that the constitutional question is as much involved in one case as in the other. But under the court's construction of the act that question can be pretermitted. Under our construction it would seem to be not only of ultimate but of first insistence. The court, however, is of opinion that the question of the constitutionality of the act was not certified in such manner as to be subject to its consideration. From that conclusion we are not disposed to dissent and shall assume, as the court does, that the legislation is valid and pass to its consideration.

The instant case, the facts not being in dispute, is brought to the question of the right of the master to deduct the Liverpool advances, the ship asserting the right and the libelants denying it. The solution of the question necessarily depends upon the construction of the act, or, more precisely, its application. It is conceded, yielding to the authority of Patterson v. The Bark Eudora, 190 U.S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002, that the act applies to American seamen shipping in an American port upon foreign vessels, but it is contended from that case and other cases that it ought 'to seem plain on principle and authotity that the advancement on principle and authority that the advancement made to seamen within the territorial jurisdiction of the United States.' And, indeed, it is insisted that Congress 'ex industria in terms confined the application to the waters of the United States.' The conclusions are deduced from the cases which are reviewed and the language of the act is quoted. We give the quotation as it amplifies the contentions:

'That this section shall apply as well to foreign vessels     while in waters of the United States [counsels' emphasis],      as to vessels of the United States, and any master, owner,      consignee, or agent of any foreign vessel who has violated      its provisions shall be liable to the same penalty that the      master, owner, or agent of a vessel of the United States      would be for similar violation.

'The master, owner, consignee, or agent of any vessel of the     United States, or of any foreign vessel seeking clearance      from a port of the United States, shall present his shipping      articles at the office of clearance, and no clearance shall      be granted any such vessel unless the provisions of this      section have been complied with.'

The quotation is but a part of section 11. It is preceded by the explicit declaration that it is 'unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same or to pay such advance wages.' There is no limitation of place or circumstances and the universality of the declaration is given emphasis and any implication of exception is precluded with tautological care by the provision that 'the payment of such advance wages or allotment shall in no case except as herein provided absolve the vessel or the master or the owner thereof from the full payment of wages after the same shall have been actually earned, and shall be no defense to a libel suit or action for the recovery of such wages.' To qualify these provisions or not to take them for what they say, would, in our opinion, ascribe to the act an unusual improvidence of expression. And section 4 should be considered in connection. It is hence important that we give it in full. And it may be said that it is an amendment to section 4530, R. S. (Comp. St. 1916, § 8322). It is as follows:

'Sec. 4530. Every seaman on a vessel of the United States     shall be entitled to receive on demand from the master of the      vessel to which he belongs one-half part of the wages which      he shall have then earned at every port where such vessel,      after the voyage has been commenced, shall load or deliver      cargo before the voyage is ended and all stipulations in the      contract to the contrary shall be void: Provided, such a      demand shall not be made before the expiration of, nor      oftener than once in five days. Any failure on the part of     the master to comply with this demand shall release the      seaman from his contract and he shall be entitled to full payment of wages earned. And     when the voyage is ended every such seaman shall be entitled      to the remainder of the wages which shall then be due him, as      provided in section forty-five hundred and twenty-nine of the      Revised Statutes: *  *  * And provided further, that this      section shall apply to seamen on foreign vessels while in      harbors of the United States, and the courts of the United      States shall be open to such seamen for its enforcement.'

This section and the others we have quoted express something more than particular relations of ship and seaman, they express the policy of the United States which no private conventions, no matter where their locality of execution, can be adduced to contravence. The Kensington, 183 U.S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; United States v. Chavez, 228 U.S. 525, 33 Sup. Ct. 595, 57 L. Ed. 950; United States v. Freeman, 239 U.S. 117, 36 Sup. Ct. 32, 60 L. Ed. 172. Nor are we called upon to assign the genesis of the policy or trace the evolution of its remedy to the act in controversy; and besides it has been done elsewhere. It is enough to say that the act itself demonstrates that it is intended as a means in the development of the merchant marine and it hardly needs to be added, to quote counsel for the government, 'that the welfare of the seaman is remarkably interrelated with that of the merchant marine.' This certainly was the conception of Congress and answers the contentions based on contrary opinion and deductions. It is manifest also from the title of the act, which declares its purpose to be 'to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion, and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea.' Its efficacy as a means or the policy of the means is not submitted to our judgment. Ours is the simple service of interpretation, and there is no reason to hesitate in its exercise because of supposed consequences. The policy of the act was so insistent that Congress did not hesitate to abrogate opposing treaties. Certainly, therefore, we cannot give a controlling force to the suggestion that to construe the act as the ship construes it and others, supporting the ship, construe it, is to 'impose our conception of the rights of seamen upon the whole world in violation of the comity of nations.' The reply is immediate: It was for Congress to estimate this and other results and to consider how far they were counterpoised or overcome by other considerations. If the section was ambiguous the asserted results might be invoked to resolve its meaning; but we do not think it is ambiguous.

It must be conceded, indeed, it is conceded, that the words of the sections are grammatically broad enough to include all seamen, foreign as well as American, and advances and contracts, wherever made, and to the contention that Congress had in mind and was only solicitous for American seamen, the answer is again immediate: The contention would take us from the certainty of language to the uncertainties of construction dependent upon the conjecture of consequences; take us from the deck to the sea, if we may use a metaphor suggested by our subject. Language is the safer guide, for it may be defined; consequences brought forward to modify its meaning may be in fact and effect disputed-foreseen, it may be, and accepted as necessary to the achievement of the purpose of the law. And the purpose is resolute, has been maintained for many years with increasing care, and the ship, being in the waters of the United States, not the nationality of the seamen, selected as its test. And lest there might be impediment in treaties, they are declared, so far as they impede, to be abrogated.

But authority may be adduced against the contentions. In Patterson v. Bark Eudora, supra, the Seamen's Act came under consideration, and it was contended, as it is contended now, that the title determined against the body of the act and that therefore the act did not apply to foreign vessels notwithstanding its explicit words. The contention was declared untenable and the reasoning of the court exhausts discussion on that and the other contentions as to the purpose and power of Congress. Of the first it was said that it was to protect sailors against certain wrongs practiced upon them, one of the most common being the advancement of wages; of the second it was said, quoting Chief Justice Marshall:

'The jurisdiction of the nation within its own territory is     necessarily exclusive and absolute; it is susceptible of no      limitation not imposed by itself.' The Exchange, 7 Cranch,      116, 3 L. Ed. 287.

The nationality of the seamen does not appear, but the vessel was foreign, and the application of the statute to the latter constituted the ground of controversy.

Of course, the language of an act, though universal, may find limitation in the jurisdiction of the Legislature; but certainly a ship within the harbors of the United States is within the jurisdiction of the United States, and making its exercise 'apply to seamen on foreign vessels,' and 'the courts of the United States * *  * open to such seamen for its enforcement' was the judgment of Congress of the way to promote its purpose.

These considerations, we think, answer as well other contentions; that is, that the act 'should be construed as applicable only to seamen shipping in an American port on vessels which remain for a time in or afterwards return to an American port to load or deliver cargo' or 'to seamen of American nationality upon foreign or domestic vessels, irrespective of the port of shipment.'

It is enough to say of the contentions, in addition to what has been said, that they impose on the statute qualifications and limitations precluded by its words and the purpose they express. There is a great deal said, and ably said, upon these contentions and the more pretentious one that the act would violate the Constitution of the United States unless so 'construed as not to apply to foreign seamen shipped on a foreign vessel in a foreign port, under a contract, valid where made. * *  * '

We cannot concede the qualification nor doubt the power of Congress to impose conditions upon foreign vessels entering or remaining in the harbors of the United States. And we think that the case of The Eudora declares the grounds of decision. Its principle is broader than its instance and makes the vessel and its locality in the waters of the United States the test of the application of the act and not the nationality of the seamen nor their place of shipment, nor contravening conventions, and precludes deductions of advances.

Nor is there obstacle in the penal provisions of the act. They may be distributively applied and such application has many examples in legislation. It is justified by the rule of reddendo singula singulis. By it words and provisions are referred to their appropriate objects, resolving confusion and accomplishing the intent of the law against, it may be, a strict grammatical construction. United States v. Simms, 1 Cranch, 252, 2 L. Ed. 98; Comm. v. Barber, 143 Mass. 560, 10 N. E. 330; Quinn v. Lowell Electric Light Co., 140 Mass. 106, 3 N. E. 200. The Seamen's Act especially invokes the application of the rule. The act applies to foreign vessels as explicitly and a circumstantially as it does to domestic vessels. Let the foreign vessel be in the waters of the United States and every provision of the act applies to it as far as it can apply. In other words, it gives the right to a seaman on a foreign vessel to demand from the master one-half part of the wages which he shall have earned at every port and makes void all stipulations to the contrary. And the remedy of the seaman in such case is made explicit. If his demand be refused ('failure on the part of the master to comply' are the words of the act) the seaman is released from his contract and he is entitled to the full payment of wages earned. And he is given a remedy in the courts of the United States. The defense of an advance payment is precluded and clearance of the foreign vessel is forbidden. And thus the act has completeness of right and remedy and, we think, precludes judicial limitation of either. Its provisions are simple and direct, there is no confusion in their command, no difficulty in their obedience. Of course, a 'master, owner, consignee or agent of' any foreign vessel, to quote the words of the act again, cannot violate any provision of it if he be not in the United States. If there be provisions that cannot reach him, that with which this case is concerned can reach him.

We are, therefore, of opinion that the District Court was right in refusing to allow the Liverpool advances and the Circuit Court of Appeals was wrong in reversing the ruling.