
    Petition of MURPHY.
    District Court, S. D. New York.
    Feb. 18. 1947.
    Benjamin B. Sterling, of New York City, for petitioner.
    John F. X. McGohey, U. S. Atty., Southern Dist. of New York, of New York City (Anthony Blasi, of New York City, of counsel), for respondents.
   HULBERT, District Judge.

This is an application by a former member of the crew of the S.S. Henry V. Alvarado, a merchant vessel of the United States, for an order directing Julius Dietz, Master of said vessel and the Attorney General of the United States, as a representative of the Destitute Seaman’s Fund, to show cause why the sum of $425.56 representing wages earned by the petitioner while employed on board said vessel and heretofore deposited into the registry of this Court, should not be paid to the petitioner.

When the matter came on to be heard the Court determined that a hearing should be had, and testimony was taken on February 7, 1947.

Murphy testified that he shipped on the S.S. Henry V. Alvarado from the port of New York early in November, 1945 and that said vessel docked at Odessa, Russia on or about Jan. 30, 1946 at which time it is not disputed there was due him $425.56 for wages.

On Feb. 24, 1946, Murphy was given shore leave until 12 o’clock midnight. He never returned to the vessel but, as he freely admitted, became intoxicated, and when he was again in possession of his normal faculties, he claims he found himself aboard the S.S. Fort Pitt, a vessel of British Registry, then at sea, but which, when he left the S.S. Henry V. Alvarado, was berthed at the dock, astern thereof. He was familiar with the Russian customs with respect to boarding ship, including passes containing a number corresponding to that of seaman’s papers, and showing same to, and being checked by the Russian Police on guard duty at the dock.

Murphy could offer no explanation as to how he gained access to the spare crew’s quarters on the Fort Pitt which were not being used by anybody else. He did not make known his whereabouts until he was discovered by the Captain of the Fort Pitt, whom he knew had sent a radio through the Alunza, an agency of the Russian Government, to the Master of the S.S. Henry V. Alvarado, who received it on March 22nd, where he had put in to take fuel after having left Russia two days before. The Fort Pitt had stopped at Istanbul, where Murphy could have gotten off. Her next port of call was Bone, North Africa, but he did not go ashore there, although he had developed a rash, in the meantime, which he thought was a contagious infection, and for which he procured “some pills and stuff” from a crew member of another ship, but continued on the vessel until it arrived at Aden, Arabia, where he reported to the American Consul and was hospitalized for about a month and ultimately provided with passage on the S.S. City of Auckland and arrived in New York in June, 1946.

Meanwhile, the Master of the S.S. Henry V. Alvarado had logged Murphy “for failure to join” but by reason of the suspicious attitude of the Russian authorities who endeavored to maintain a strict surveillance over all seamen alien to that country, Master Dietz having suspected Murphy had shipped on the Fort Pitt, induced the Russian authorities to communicate with the Master of that vessel, as aforesaid.

There is a presumption in favor of the petitioner which arises (a) from the fact that he left his vessel without undertaking to collect the back wages due him, and the recovery of which he now seeks, and (b) from the fact that he left his clothing and other personal effects aboard the vessel. But, the circumstances under which he went aboard the Fort Pitt, and the unexplainable mystery of how he obtained sustenance until discovered by the Captain, although he was able to get “medication” from a seaman of another vessel, and the further fact that he did not report to an American Consul until his arrival in Aden, although he could have done so at Istanbul or Constanza, and even made arrangements to join his ship at either place, leads to what the court believes is an inevitable conclusion that if he was incapable of formulating a mental attitude of desertion at the time he boarded the Fort Pitt, he wilfully did so thereafter, and the petition must be denied.  