I do not dwell on that as of much importance, because I think it is quite immaterial in this case what kind of a strike it was, whether it was a bona fide strike or an outright strike or what it was.

Rees and Lampkin returned about 8:35 and notified the chief officer that the crew still refused to work. The chief officer himself wert back and saw the crew gathered together and gave them instructions to go to work. All the crew was there-that is, the full complement of unlicensed officers. I think the testimony

is there were twenty-two members of the crew present which I believe was practically all of the crew of the ship excluding the officers and one or two, possibly in the steward's department.

Rees and Lampkin had told the chief officer that the crew had voted to shut the steam off and stop the stevedores from working. Mr. Bianchi, the agent of the ship, also explained to Rees and Lampkin about the strike conditions ashore to the effect that the strike was not a real strike of union stevedores but rather a personal quarrel.

When the chief officer found that the crew was apparently determined to persist in their attitude, he requested Rees and Lampkin to at least leave steam on long enough so that the hatches could be covered up to protect the cargo that was already in the vessel.

Rees and Lampkin subsequently reported to him that the men agreed to this. You will note, gentlemen, if you find those facts to be true that here is the case where the officers of the ship are asking the crew how the ship may be run; and the crew stating that they would permit the hatches to be closed.

The hatches were, in fact, covered. The American Consul was then sent for and he came aboard the vessel about 9:25, at which time all work had ceased, The chief officer reported the situation to the capitan, who was sick in bed. The Vice-Consul, Mr. Adam, went to see the crew without any of the officers, and explained the situation to them and informed them that they were acting without authority of law and advised them to go back to work. He talked to the crew for possibly half an hour or more and told them that they were liable to be arrested and confined in jail.

After he withdrew the crew took another vote and Rees and Lampkin reported to the chief officer that the men still refused to work, the vote being eleven men to keep the steam off, seven to keep it on, and four men not voting. After that the captain of the ship, the Line's agent, Mr. Bianchi, and the American Consul went ashore.

Shortly afterwards it became necessary to shift the anchorage, which could not instantly be done by reason of lack of steam on deck, as the steam there had been turned off. The chief officer requested the first assistant engineer to put on the steam again as the ship was said to be in a dangerous position. The steam had been turned off about nine o'clock, but the chief officer did not know by whom.

After the necessary delay in getting the steam turned on, and it was turned on by one of the engineers, Mr. Olafsen, who went down and said he turned on the main valve, or one of the main valves in the engine room where it had been turned off, after the necessary delay in getting the steam turned on, the anchorage was shifted. The delay was about ten to fifteen minutes.

About five o'clock, the captain and the American Consul returned. The captain assembled the crew in the recreation room with the officers and the Consul and the crew were told the captain could not deal with them collectively, but individually.

I think the testimony shows that the captain of this ship in the harbor of Montevideo, thousands of miles from Washington, the site of our Government, had the unusual experience of going ashore and telephoning to Washington to know what he could do in order to have work go on on his ship. There may be other instances of record of that occurrence in maritime history. None has ever come to my attention in reading, but you gentlemen can consult your own experience about that. It may not be an uncustomary thing, but I never heard of such a thing happening before. Indeed, the laws of the United States, gentlemen, as I shall explain to you a little more fully presently, give quite full authority to the captain of a ship to deal with the situation on board his ship himself, and when this captain came back and assembled these men and told them that he intended to exercise his authority, they at once complied.

The case may give rise to the thought that it would have been far wiser for the captain to have asserted his definite authority earlier in the day. He has explained his reasons for not having done so. In the first place, he was not a well man, he had an attack of the Flu, and he had a fever; and, in the second place,

he indicates to you that the reason that he did not immediately order the steam turned on again, when he found that it had been turned off, was that he feared if he had done so there would have been an outright collision with the members of the crew, which he desired to avoid. Now, whether there would have been or not, perhaps, is a question of fact for you to determine. That is his explanation of why he did not act with more firmness and rigidity of discipline earlier in the day.

At all events, when he came back at five o'clock, after telephoning to Washington and getting some advice and instructions from his superior employer, the Maritime Commission, and putting the matter definitely and distinctly to the sailors, they realized that firmness was then being insisted on, and they receded from the position that they had previously taken, and individually agreed to obey the lawful orders of the commander thereafter, and the next day the cargo was loaded by these same stevedores without any further incident and she sailed away on her home voyage in a few days thereafter.

Now, in brief effect, the testimony advanced by the Government was that the crew of the ship, including all fourteen of the defendants, held a meeting during the time when, according to the customary orders and routine of the ship, many of them at least were assigned to a particular duty, and they determined by unanimous vote that they would not work with the stevedores or while the stevedores were on the boat, and that they would not furnish the steam for the necessary operation of the loading of the cargo by the stevedores, and if necessary, the steam would be shut off. The steam was in fact shortly thereafter shut off, and the stevedores had to quit work and the ship could not load the cargo that day. After the first meeting the crew was advised by the chief officer, acting under authority from the captain, and also by the American Consul, that they were acting improperly and should go back to work, but nevertheless they refused to do so, and did practically no work that day.

In short, the Government asks you to find from the testimony offered by it, that for the major part of that whole day, the command of the ship with respect to the loading of the cargo was effectively taken out of the hands of the captain and officers of the ship, and the actions of the crew resulted in the ship lying idle for the rest of the day.

Now, gentlemen, I instruct you, as a matter of law, that if you find those facts, then that does constitute the crime which is charged in this indictment against these men; it is wholly, however, for you to determine whether you find those facts, and the facts as I have summarized them up to the present time are those based on testimony offered by the Government. Of course, before you reach any conclusion in the case, you have to consider all the testimony, no matter by whom offered, whether by the Government or by the defendants.

Now, we must turn to the defendants' testimony and see how that fits in with or denies or explains or refutes the testimony of the Government.

Now, the position of the defendants in this case, by very able counsel with views very earnestly pressed, is two-fold: It is partly a justification, and it is partly a denial. The justification is that seamen who belong to a union when on a voyage are justified in striking, that is to say, quitting work, for certain reasons or if certain labor conditions arise.

Now, I don't know whether I have fully stated that, but briefly, perhaps, and succinctly, perhaps, that is the position known as justification. Or, to put that a little more exactly with reference to the defendants' position on justification, as I understand it, it is this: That in this case the striking seamen were justified“ in striking because the ship was using strike-breaking stevedores to load the ship. Or, in other words, it is said that there is a right on the part of seamen to strike and quit work if labor conditions do not suit them. Now, have I overstated your position?

Mr. MCQUAID. I believe so, your Honor. Our position does not go so far. It is simply that the right, as contended by us, exists if the ship is in a safe port. The COURT. I see. Well, otherwise, it is correctly stated, is it?

Mr. MCQUAID. Yes, sir.

The COURT. Now, gentlemen, I have to take the responsibility of deciding what is the law. So far as that defense position goes to justification, I must tell you that it is no justification and has no place in the law. There is no right to strike against the laws of the United States by anybody, at any place, at any time, for any reason, if the laws are constitutional and valid laws; and the conduct of these men on that boat during the voyage for which they had shipped and signed shipping articles, is governed by the laws of the United States, and not by the laws of any association, voluntary or otherwise, whether labor or otherwise,

to which they may belong. Their duty on this ship, on this voyage, is governed by the laws of the United States, and by those only.

Now, the laws of the United States in that respect are contained in the statutes of the United States, and one of them is that the seamen, the crew, must obey every lawful command of the captain, and the contention of the Government here is that they did not obey lawful commands of the captain.

Now, let me make this plain to you, though, because so often when questions affecting labor come into court there seems to be a misunderstanding as to the attitude of the law. The right of seamen to join a labor organization is in no way involved in this case. They do have that right fully, just as members of the legal profession have a right to form a bar association, just as doctors have a right to form an association, just as retail merchants or manufacturers or real estate agents have that right. And they have a perfect right to govern themselves as a union, as they please, subject only to the laws of the country. Furthermore, the right to strike, as such, by laborers, either collectively or as individuals, is not involved in this case, so far as it applies to conditions on land. The right of laborers, whether under contract or not, to strike on land is not questioned. It is freely exercised, and it is not involved in any way in this case. In that respect there is a very grave difference, between the law of the land and the law of the sea, and a moment's reflection will show you how and why that is, and must be, so.

From time immemorial the perils of the sea have made it absolutely essential that there be some one person in command of a ship, because the lives and the safety of everyone on board, including the value of the cargo of the ship which, in these days, sometimes runs into the value of millions of dollars, is dependent upon the wise exercise of judgment and discretion. Just as there must be a general of an army on the field of battle in absolute control whose final word must be taken, so, at sea, there must be a captain in charge of a ship, and the captain's word is taken and it must be acted on, not only by the crew, but by passengers, by stewards, by stevedores, by anybody and everybody, even though the captain makes a mistake. There are a few conditions, in which the commands of the captain of a ship may lawfully and justifiably be disobeyed. One of them is that the crew does not have to go to sea, even after they have signed shipping articles, if there is real good ground to believe that the ship is not seaworthy. Another justification for the crew in refusing to obey a command of the captain or his officers under his authority would be where the captain is doing something that is obviously unlawful, or doing something which the sailors have a just reason in good faith to believe was unlawful, as, for instance, there was the case cited here by, I believe, Mr. McQuaid of counsel for the defendants, where the captain ordered the men to work on Sunday under conditions where there was really no emergency or necessity for Sunday work, and the sailors honestly believed that they did not have to work on Sunday. Then, again, if the captain is inhumane and brutal in his conduct, and undertakes to impose excessive punishment on an individual member of the crew without justification, there may be a justifiable interference and resistance, not only by the individual member of the crew but by others who see the inhumane conduct about to be perpetrated. But, we are not dealing with a situation of that kind in this case.

Therefore, for the law in this case, it is clearly true that the lawful orders and commands of the captain must be obeyed, and that one who refuses to obey them, wilfully and deliberately, has violated a law of the United States binding on him, and he has no justification whatever in saying that his conduct is consistent with some other set of rules that he may think justify him in his action. Now, there is another reason why this law of the sea which has been carried into the laws of the United States, differentiates necessarily between the rights of employees on land and at sea: If the law gave sanction to the right of the crew to determine questions of policy and management of the ship, you would find very few underwriters, I expect, who would be willing to insure a ship, or a shipping line where it was known that that discipline, or lack of discipline, prevailed. You would find few passengers of discrimination and care who would be willing to sail on the lines where that kind of discipline prevailed. And the age long immemorial customs of the sea have been to the contrary, and the laws of the United States in giving them express written form do nothing more than has been proved by the experience of men for at least a thousand years.

So, I say to you, gentlemen, without any hesitation and without any doubt on my part or any uncertainty whatever as to the law, there being the fullest opportunity to appeal from that view of the law, if it becomes necessary, that there is no right on the part of seamen to strike against the lawful commands of the master of a ship.

Now, it has been earnestly pressed upon me by counsel for the defense that this law is a hundred years old, and that in the last few years we have learned a great deal more than we had ever known before, and many people are changing their views about the differences in positions of employer and employee. I find no necessity for making any comment with regard to the accuracy of that statement or in any way to challenge it, excepting insofar as it relates to this case. We are dealing here with a case at sea and not with one on land, and there is a vital difference between the two, so far as the right to strike is concerned.

Now, however, from the legal standpoint, the defendants offer another defense, which is, if you find the facts as they contend, that is a perfectly sound defense as a matter of law. That is to say, that they did not refuse to obey any lawful command of the captain of the ship. Now, it would be for you, in the first place, to say whether the two positions which they take, first of justification for what they did, and, secondly, of denial that they did what they are charged with doing, are entirely consistent. However, people in court have a right to offer inconsistent defenses, and if either one of them is of itself legal and is established by the testimony, they are entitled to the benefit of that position. The mere fact that they seem legally inconsistent is no reason for throwing them out of the window. You have to fairly consider them.

Now, what is the substance of the testimony on behalf of the defendants in this case? Each of the fourteen defendants has testified with regard to the occurrence at Montevideo. Their testimony, in effect, is that the crew, on their own initiative, held only one meeting during the working hours of the majority, at least, for possibly twenty minutes and that subsequent meetings of the crew which were addressed by Mr. Bianchi, the ship's agent, and by the American Consul and by the captain, were called not on the crew's initiative, but in response to requests from the others mentioned.

The defendants admit that the unanimous vote at the first meeting was that they would not work while the stevedores were on board, or with the stevedores, and would not furnish steam for work by the stevedores, and there is some testimony from some of the defendants, perhaps by cross-examination, that it was their understanding that the steam was to be shut off. However, I want you to carefully search the testimony on that point because most of the defendants, I think, deny that it was their full understanding that the steam was certain to be shut off. The expression was, "to be shut off if necessary.' Just what that phrase "if necessary" means is a matter for you to determine. But, the defendants, or most of them, say there was no definite plan as to when or by whom the steam was in fact to be shut off, and none of them know who did actually shut off the steam.

They also state that their first communication by their representatives Rees and Lampkin to the chief officer was intended to be merely a protest against being required to work with the stevedores.

They say they had three objections to the stevedores: first, that by their actions as they observed them, they seemed to be inexperienced; secondly, that the stevedores were scab or non-striking stevedores or stevedores substituted in palce of striking stevedores, and, third, the crew feared that if they went ashore, their working with these stevedores would. cause them trouble on shore. They also say that they did not refuse any direct command from the captain or the officers, and that if such a direct command had been given to them they would have obeyed it. They deny that the boatswain delivered the orders of the chief officer for them to go back to work, and they deny that they ever received any direct order to go back to work from any officer. It is admitted that the only statement that they made to any of the officers, or the noly complaint with regard to the stevedores was that they were scab stevedores. They made no complaint of the inefficiency of the stevedores.

You have heard all the testimony with regard to the question of whether the stevedores were efficient or inefficient, or whether that was a real reason for the action of the men, or just a pretended reason. That is a question entirely for you to determine. You may think that the evidence after all is very slight that there was any real complaint on the part of the men as to the inexpertness of the stevedores, or that that was any real cause for the basis of their action. Certain it is that they did not make any such complaint to the officers at any time. In considering and weighing the testimony of the several defendants to the effect just stated, you will also have to consider the other features of the testimony to the effect that the steam was, in fact, turned off, and by whom it was turned off, as you find the fact to be, by inference or circumstantial evidence. The officers have severally testified that they did not turn the steam off and had no order from any officer to turn the steam off, and the defendants testified they did not know

who turned the steam off, but the fact is the steam was turned off and the stevedores had to quit work, and this was the object of the defendants' meeting and vote, to keep the stevedores from working or not to have to work with them.

Now, on this question of fact, as to whether the defendants did refuse to obey the lawful commands of the officers of the ship, the position, as I understand it, taken by some of the defendants, and particularly by the defendant, Parsons, and, possibly by two or three others, was, in effect, that all the men intended to do was to put up a petition or request to the captain of the ship, and to ask him not to expect them to work with striking workmen, that they wanted to get his reaction to that; and the reason for what they did for the rest of the day, the explanation of what happened the rest of the day was that they, in substance, thought that the captain was really in sympathy with their position, and that if the steam was turned off, inferentially, the position seems to be that it must have been turned off by some officer of the ship in sympathy with the actions of the

crew.

Now, whether you find that to be the fact or not, gentlemen, is for you to determine from the testimony. I have no hesitation in instructing you in favor of the defendants, that if you believe that all the defendants did in this case was to request the captain of the ship, or the first officer, not to make them work with the stevedores, for the reason that they were striking stevedores, and if they honestly thought that they should be excused from doing that, and that the captain was sympathetic with them in that request, and that the actions of the captain and officers apparently to the contrary was a mere pretense to save their own faces, or something of that kind, then, undoubtedly these defendants had not refused to obey the lawful commands of the ship, or the captain of the ship. But it is a question of fact, of course, as to whether you believe that that was the position really taken by the defendants; in other words, whether they determined to keep these stevedores from loading the ship that day; and do their actions show that the crew was so determined, and, in fact, substituted their will for the will of the captain of the ship, or do you believe that the defendants merely invited the officers of the ship to cooperate with them in not allowing or having the stevedores work that day?

Now, there is the greates difference in the world between the criminality or noncriminality of those two situations. If the men went through actions and statements and behavior which, in substance, took the command of that ship, with regard to loading her that day, out of the hands of the captain, and substituted their will for the will of the captain, then I tell you that you should find them guilty in this case under this indictment. If, on the other hand, they had no intention of constraining the captain, either expressly or impliedly, and no intention of ever disobeying any order that he might give, and that they were merely making a request to try to draw him out, and that he really fell in with their plan, as some of them seemed to intimate, and never did give any order, and intentionally refrained from giving such order, then I instruct you with equal clarity that you ought to acquit them, that is, these defendants.

Now, it is for you gentlemen to determine what the facts are in that regard between those two factual situations. You, of course, will have to bear in mind all the testimony; you will have to bear in mind the testimony on what Mr. Bianchi did and said to the crew when they were assembled, as bearing on the attitude of the crew and the genuineness of their desire with regard to the management of the ship; you will have to bear in mind what the American consul said and did, and what he has testified to with regard to the conditions as he observed them; you will have to bear in mind, of course, the statements of the officers of the ship, as well as the statements of the defendants. But on that issue of the case as a ground of defense, if you believe that the defendants' position was as summarized by the witness, Parsons, one of the defendants, if you believe him and his testimony in regard to the attitude of the men and the apparent attitude of the officers of the ship, then I tell you to acquit these men. That would create a somewhat different situation, with which this Court has nothing to do.

Now, gentlemen, I have been asked by the defendants' counsel, in their thorough preparation of the case in the representation of their clients, to give you certain particular instructions. And to some extent I am able to comply with that as a matter of law; and to some extent I am not. I will run over some of these things, so that counsel can have my views as well as the jury.

The defendants first make this request, that if the jury should find that no emergency existed, the refusal of the defendants to expose themselves to unnecessary and obvious dangers, does not constitute deprivation of the master's authority.

32437-38-pt. 5—9