The petitioner's own testimony supports the finding of the
District Court as to the time when he abandoned the vessel on which
he had been serving as a seaman, and his departure from the vessel,
then or later, without informing the master whether he persisted in
his demand for wages, precludes the inference that, in the
circumstances described in this Court's opinion,
ante p.
294 U. S. 23, the
failure to pay wages was "without sufficient cause."
Rehearing denied.
This was a motion for a reargument of the cause reported
ante, p.
294 U. S. 23.
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioner has moved for reargument of the question whether the
failure to pay his wages was "without sufficient cause," on the
ground that this Court "misapprehended the facts shown by the
record" in accepting the finding of the District Court, 3 F. Supp.
184, that petitioner "departed the ship without seeing the captain"
on the second day after her arrival at the port of London.
In support of this contention, petitioner, for the first time,
invites our attention to an excerpt from the vessel's log, an
exhibit in the case, which states that he was "aboard ship from
3:20 PM Feb. 29th to 9:00 AM March 1st, 1928," and that he was
"last . . . seen aboard ship at 9:00 AM March 1st, 1928." It is
conceded that the vessel arrived in port on Sunday, February 26,
1928, and sailed the following Friday, March 2d. As the year was a
leap year, petitioner argues that he is thus shown to have been on
board on the morning of the fourth calendar day after arrival;
that, as the vessel sailed the
Page 294 U. S. 383
following day, it may be inferred that he did not leave until
the cargo was discharged, and that the failure to pay wages before
his departure on March 1st was therefore without sufficient
cause.
The details of petitioner's leaving the vessel were not
considered by the Circuit Court of Appeals, presumably because its
decision was placed on other grounds. 70 F.2d 632. But, in this
Court, respondent properly sought to sustain the decision below on
the ground that the failure to pay wages was not without sufficient
cause. In its brief, it specifically relied on the finding of the
District Court that petitioner had abandoned the vessel two days
after arrival, and cited the record in support of the finding.
Petitioner in this Court neither challenged the finding of the
District Court nor assailed the sufficiency of the evidence to
support it, and we are now asked, for the first time, by a motion
for reargument, to weigh the evidence.
The petitioner, in his testimony in his own behalf, both on
direct and cross-examination, testified at four different points in
the record that he abandoned the vessel on February 28th, which was
on Tuesday, two days after arrival. He identified the day of
abandonment by its date, as being on Tuesday, and as being the day
after his visit to the Consul's office, which was on Monday,
February 27th. He was equally specific in his testimony that, when
he left the vessel, he did not intend to return and did not in fact
return. We accept his testimony as correct and as abundantly
supporting the finding of the District Court.
We also think, as the opinion indicates, that petitioner's
departure from the vessel, whenever it occurred, without informing
the master whether he persisted in his demand, precludes the
inference that, in the circumstances, the failure to pay wages was
"without sufficient cause."
The motion is
Denied.