412 F2d 1187 Cabales v. United States

412 F.2d 1187

Frisco M. CABALES, Appellant, and the United States of
America ex rel. Frisco M. Cabales, Petitioner,
v.
The UNITED STATES of America, as Owner, Bulk Transport,
Inc., General Agent and Frank W. Lawrence, Master,
of the SS ALBION VICTORY, Appellees.

No. 621, Docket 33223.

United States Court of Appeals Second Circuit.

Argued June 6, 1969.
Decided June 11, 1969.

William E. Fuller, New York City (Fuller, Hopkins, Lawton & Taussig, New York City, on the brief), for appellant.

Peter Martin Klein, New York City (William D. Ruckelshaus, Asst. Atty. Gen., Robert M. Morgenthau, U.S. Atty., Louis E. Greco, Attorney in Charge, New York Office, Admiralty and Shipping Section, Department of Justice, on the brief), for appellees.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

PER CURIAM:

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1

Frisco M. Cabales was not on board his ship, the SS Albion Victory, when it departed from Bataan, the Philippines, on November 8, 1967. Accordingly, the master of the vessel, Frank W. Lawrence, logged him as a deserter. Cabales thereafter brought suit against the United States, the owner of the SS Albion Victory, Bulk Transport, Inc., the general agent operating the vessel, and Lawrence, its master (who was not served with process), claiming wages due, statutory penalties, and other relief for the allegedly improper action by the master. Bulk moved for summary judgment and the Government moved for partial summary judgment. Judge Sylvester J. Ryan, sitting in the Southern District of New York, granted both motions, 300 F.Supp. 1323. We affirm.

2

This case presents the same question decided today in Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir. 1969). Accordingly, we affirm the district court's order for summary judgment in Bulk's favor for the reasons stated in that opinion.

3

As to the penalty wage claim and the other relief sought by Cabales, we affirm on the basis of Judge Ryan's opinion.