Opinion
No. 9781.
March 30, 1959.
Nicholas H. Zumas, Koerner, Young, McColloch Dezendorf, Portland, Or., for petitioner.
Victor E. Harr, Asst. U.S. Atty., Keith R. Ferguson, Sp. Asst. to Atty. Gen., for respondent.
This matter coming on regularly for hearing before the above-entitled Court, petitioner being present and represented by his proctor, and respondent United States of America being represented by its proctors; witnesses being heard, and documentary evidence being introduced, and the Court being fully advised in the premises, now makes the following
Findings of Fact I
That on or about January 30, 1957, petitioner William Gray signed valid and binding Articles to serve as an ordinary seaman (wiper) on the S.S. Occidental Victory, an American merchant ship, for a period described in said Articles, which voyage and Articles terminated on April 15, 1957, at Portland, Oregon.
II
That approximately two months after signing Articles and before termination of said Articles, the petitioner William Gray left the S.S. Occidental Victory at the Port of Calcutta, India, on March 22, 1957, taking his seaman's papers, certain clothes, and other effects with him, and remained away from said vessel and did not rejoin her during the remainder of her voyage, all without permission of the Master or any responsible person in charge.
III
That the Master of the S.S. Occidental Victory, on March 23, 1957, entered the desertion of the petitioner William Gray in the official log book of the vessel, and the wages then due the petitioner, in the amount of $297.35, were duly deposited in the registry of this Court.
IV
Petitioner William Gray has failed to present evidence proving the allegations of his petition or proving that the Master erroneously entered him as a deserter.
V
Petitioner left the S.S. Occidental Victory on March 22, 1957, without justification and with the intent not to return to the service of said vessel.
From the foregoing Findings of Fact, the Court makes the following
Conclusions of Law I
The petitioner William Gray during the trial of this cause had the burden of proving that the Master erroneously entered petitioner's desertion in the official log book of the S.S. Occidental Victory and has failed to sustain that burden of proof.
II
That said petitioner's abandonment of duty by quitting the said vessel before termination of his engagement without justification and with the intent not to return constituted desertion within the meaning of Title 46 U.S.C.A. § 701.
III
That the full sum of $297.35 on deposit in the registry of this Court is properly forfeited pursuant to said statute.
IV
That the respondent and claimant, United States of America, is entitled to an order forfeiting the said wages on deposit in the registry of this Court to the United States for the purposes provided by law.
Neither party shall recover costs against the other.
Respondent is requested to submit proposed order in conformity with the foregoing.