302 OFFICERS NOT TO BE CAPRICIOUSLY REMOVED.

Among the more important of these duties, may be enumerated a due vigilance, care, and attention to preserve the cargo from robbery; but a chief mate is not responsible for any embezzlement that may occur, not arising from any neglect of duty on his part.

As wrongful dismission and compulsory desertion constitute no bar to a recovery of wages; so no tortious removal, displacing, disrating, or degrading of an officer is permitted to operate to the prejudice of the party injured. However plausible may seem to be the master's pretext, the real motive, cause, or occasion is usually traceable to some sudden ebullition of passion or outbreak of personal prejudice.

Beside the cases already referred to, and especially those in Gilp. 83; 4 Mason, 541; 1 Sum. 151; 1 Pet. Adm. 244; and 4 Wash. 338; one or two other unreported cases will be cited for the purpose of exhibiting with what condign severity the intolerance and petty tyranny of masters in disrating officers may and have been rebuked by judges and jurors in Massachusetts, both in the State and the United States courts. They may be useful, not only to students, but to practioners.

The first, William C. Fauvel v. Horace H. and George W. Jenks, master and owner of the ship Rome of Salem, was heard by the late Judge Davis of the United States District Court in 1836. The following is a brief statement of the facts, as will be seen by examining the allegations in the libel, vol. 20, Book of Records, pp. 491 et seq. to 500.

The libellant shipped as second mate of the ship Rome, then bound on a pepper voyage to Sumatra, in September, 1834. Nothing occurred to mar the har

CASES OF UNJUST DISRATING.

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mony of the voyage until the year following, 1835, when the libellant was arbitrarily removed from his station as second officer; ordered forward, badly beaten, and imprisoned in a hastily constructed box or closet, between decks of a pepper ship, fully laden, with but little light and no air. His money, adventure, books, opium, and other goods were taken from him; the libellant himself hurried ashore to prison, at Singapore; and there left behind after the Rome sailed for her home port.

The confinement on board and ashore and other abuse, covered a space of about one hundred and sev enty days. R. Choate and D. Roberts for the libellant; L. Saltonstall and J. H. Ward, for respondents.

There was a full hearing at the trial; many deposi-tions were read, counsel heard on both sides, and the case defended with the utmost ability and persistency by the counsel who represented the respondents.

On the 5th of August, 1836, Judge Davis, after a full hearing of the case, upon the facts proved and the arguments of counsel, and mature deliberation thereon had, did adjudge and decree that the libellant recover of the said master and owner, the balance of wages due, the value of the articles detained, estimated at two hundred and thirty-two dollars, with costs, and damages awarded for the imprisonment, assault and other personal injuries, to the amount of two hundred dollars; making, for wages, property, damages, and taxable costs, the whole amount to exceed the sum of one thousand dollars; about $1,050.

The $200 damages for personal wrongs, was said, at the time, to have exceeded largely any amount of damages ever before awarded by this eminent judge.

304

WRONGFUL DISRATINGS

Another case occurred in a Boston brig, the Robert Wing, Captain Skinner being master and Mr. Bartlett owner. It was similar in some of its features to the preceding case; it was not, however, settled exclusively by the Admiralty Court of the district, but was partly tried there, and partly in the State court.

Francis M. Ashton shipped as chief mate of the Robert Wing, October 15, 1861, and in that capacity sailed for Africa from Boston, October 25, on a trading voyage. While on the coast, he was causelessly removed, without previous notice, admonition or any assigned reason, as was alleged, on the 11th day of February, 1862. He was, afterward, or at the time, ordered forward, and kept there with a crew of blacks forty days, compelled to live on unwholesome food, and in violation of his contract, as he said.

For the recovery of his wages, a libel was brought in the District Court against the owner, and the brig was arrested. In this suit, a decree was entered by Judge Sprague for some $52 or more, with costs.

But for the wrongful removal and other personal wrongs, the mate elected to bring his suit against the master for damages and to appeal to a jury in the State court. In this tribunal, where the case was fully examined and argued, the jury returned a verdict for $500 as damages. A motion was made for a new trial upon the ground of excessive damages; which was argued by the counsel for the defendant, before C. J. Allen; who, however, declined to hear the other side in reply, and refused the motion.

Although the experiment of going before two tribunals, in Ashton's case, was not a failure, but as a chief mate wrongfully disrated, he was amply vindicated; yet

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the better way, ordinarily, is to submit all causes of grievance, in one suit, to the decision of the Admiralty Court. The experiment of appealing to a jury may be warranted in some special cases of unmitigated wrong and outrage, as there is a concurrent jurisdiction in the State and United States courts in this respect.

If the jury reasonably remunerated Ashton, the chief mate, for his injury, certainly Judge Davis did ample justice in the Admiralty Court to Fauvell, the injured second mate.

In removing or disrating an officer, the act of removal should never originate from prejudice, or be prompted by passion, personal pique, caprice, or whim of any description; but should be dictated solely from a sense of duty on the part of the master. The master, though he may have the power, should never exercise it in an arbitrary and oppressive manner, to the personal annoyance and mortification of a person who has been deemed by the owners, and accepted also by himself as suitable and competent to fill the station of an officer.

This right of removal, which is vested in the master, as a disciplinarian, is not to be abused; but so delicate and dangerous a power should be wielded with caution and circumspection, on grave occasions only, but never for trivial or frivolous pretenses. Should a master be guilty of such abuse of this right and power, he then becomes a mere petty despot; a discredit to his profession; an unprofitable servant to his employers, and manifestly unfit to be charged with the responsible duty of the command of a ship.

Instances of the display of this insolence of office ought to cease. No man, at his own pleasure, can

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MASTER NOT TO ABUSE HIS POWER

legally or justly break up a mutual contract. It is not only right and proper, that some substantial reason should be assigned for a summary dissolution of a mariner's contract, but it is, by the law, rendered imperative that such reason should be seasonably assigned and made known by a master in advance. The inferior is, at least, entitled to notice or admonition from his superior. And if an offending master should not vouchsafe that much to his mate, or other unoffending officer, then the ill-advised and precipitate conduct of the master will become a subject of the severest scrutiny and the most rigid and unsparing criticism by a court of admiralty. Neither owner nor master should be exposed to imposition by false representations or by fraudulent professions. Mariners must manifest a capacity and skill equal to the station, which, by the shipping articles, they undertake to fill. The Duchess of Kent, supra.

In the Orizimbo (1 Pet. Adm. 250), the court said: "The true ground of all such inquiries is, whether or not there has been fraud and imposition practiced? If this fact be made out, the contract is not binding on the party deceived. This is a principle, both in the common and maritime laws. If one ships as an officer or mariner, and, either expressly or impliedly, professes himself a mariner capable of thoroughly executing the contract, and it turns out otherwise, this court is in the constant habit of denying wages entirely, or allowing a quantum meruit according to circumstances. The proof of such false professions must be made, and the fraudulent conduct designated in some satisfactory way.

"However desirable it may be, that an officer shall have gone through every grade of the occupation to