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fence. And misconduct on the part of an officer of a vessel is a much more serious offence than if committed by a seaman, and is punished with more severity by the courts. It has been held that neither error of seamanship in a master, nor neglect to communicate to a Lloyd's agent the stranding of the vessel, nor neglect to sign a bottomry bond, works a forfeiture of the master's wages. If, during the voyage, either the master or a seaman smuggle goods, he either forfeits all his wages, or the damage actually sustained by the owners of the vessel may be charged upon his wages. Embezzlement by the master or crew also works a forfeiture.5 In England it seems that the court have only power to

The Olive Chamberlain, 1 Sprague, 9.

The Olive Chamberlain, 1 Sprague, 9. In the Florence, U. S. D. C. New York, Benedict, J., 13 Law Times, N. s. 613, the mate of a ship, having a dispute about his wages. left the vessel, and took the ship's chronometer with him. The master was obliged to apply to the police to get it back. Seventy-five dollars was due the mate, and the court allowed twenty-five, holding that he had forfeited the rest by his misconduct. It was also held that the fact that the owners had not sustained any loss did not make his offence less the subject of a forfeiture. The Camilla, Swabey, Adm. 312.

Willard v. Dorr, 3 Mason, 161; Freeman v. Walker, 6 Greenl. 68; Scott v Russell, Abbott, Adm. 258.

5 This is a well-settled principle of maritime law; Alexander v. Galloway, Abbott, Adm. 261. But the question how far a seaman is liable, where an embezzlement is proved to have taken place, but the actors in it are not known, is one of a difficult nature, and the decisions respecting it are conflicting, though we consider the matter as virtually at rest at the present time. In Crammer v. The Ship Fair American, 1 Pet. Adm. 242, Judge Peters held that in case of an embezzlement, all the crew, including the captain and officers, were bound to contribute for the damage sustained, although one of the crew was on shore, and confined in prison at the time of the embezzlement, the learned judge remarking: "The innocence of an individual is not the question; it turns on the joint obligation of all, to make retribution; it is part of the conditions upon which they engage in their occupation." In Mariners v. Ship Kensington, 1 Pet. Adm. 239, where the defence was that certain laborers, who assisted in stowing the vessel, embezzled the goods, the court held that the burden was on the seamen to prove this fact, and there being no direct evidence who committed it, the seamen were held liable. The severity of the rule laid down in these decisions was somewhat modified in Sullivan v. Ingraham, Bee, Adm. 182, where proof that some of the crew could not have committed the offence was admitted. And in Knap v. Brig Eliza & Sarah, 1 Pet. Adm. 200, where the mate and two seamen were sent ashore in a boat, and one of the men was sent off on the business of the ship, after which the mate and the other seaman left, and the boat was stolen, it was

decree the whole wages forfeited or none.1 But in this country, a part may be forfeited according to the nature of the offence.2 Only those wages earned before the act of misconduct, are forfeited. So if the mate is promoted during the voyage, and, while master, commits an offence, it cannot be set up as working a forfeiture of the wages earned as mate. If the seaman repents and offers to return to duty, the master should receive him, and, if he does so, this acts as a condonation of the offence.5 But permitting held that only the two latter were liable. And in Lewis v. Davis, 3 Johns, 17, Kent, C. J., held that where part of the crew were on shore by permission of the mate, the master not being on board, and goods were stolen in their absence, they were not liable. In Spurr v. Pearson, 1 Mason, 104, Mr. Justice Story, after an elaborate review of the authorities, stated, as his opinion: "That where the embezzlement has arisen from the fault, fraud, connivance, or negligence of any of the crew, they are bound to contribute to it in proportion to their wages; that where the embezzlement is fixed on an individual, he is solely responsible; that where the embezzlement is clearly shown to have been made by the crew, but the particular offenders are unknown, and from the circumstances of the case strong presumptions of guilt apply to the whole crew, all must contribute; but that where no fault, fraud, connivance, or negligence is proved against the crew, and no reasonable presumption is shown against their innocence, the loss must be borne exclusively by the owner or master; that in no case are the innocent part of the crew to contribute for the misdemeanors of the guilty; and further, that in a case of uncertainty, the burden of the proof of innocence does not rest on the crew, but the guilt of the parties is to be established beyond all reasonable doubt before the contribution can be demanded." See also Joy v. Allen, 2 Woodb. & M. 303. The rule in England is similar. Thompson v. Collins, 4 B. & P. 347; The Prince Frederick, 2 Hagg. Adm. 394; The Duchess of Kent, 1 W. Rob. 283, 285. In Anderson v. Sloop Solon, Crabbe, 17, it was held not to be embezzlement for a seaman to sell part of the cargo by direction of the mate in order to procure provisions for the vessel, the master being permanently absent. Nor are the crew liable if a slave, who is entered on board as seaman, escapes without their negligence or fault. Carey v. Sch. Kitty, Bee, Adm. 255.

1 The Blake, 1 W. Rob. 73, 87.

2 Sprague v. Kain, Bee, Adm. 184; Humphreys v. Brig America, Bee, Adm. 237; Macomber v. Thompson, 1 Sumner, 384; The Maria, Blatchf. & H. Adm. 331; The Moslem, Olcott, Adm. 300; Orne v. Townsend, 4 Mason, 541; Mitchell v. The Ship Orozimbo, 1 Pet. Adm. 250; Gladding v. Constant, 1 Sprague, 73. The Ship Mentor, 4 Mason, 84; Smith v. Treat, Daveis, 266; The Olive Chamberlain, 1 Sprague, 10.

Airey v. The Brig Ann C. Pratt, 1 Curtis, C. C. 395, 398.

Atkyns v. Burrows, 1 Pet. Adm. 244; Thorne v. White, id. 168; Black v. The Ship Louisiana, 2 Pet. Adm. 268; Relf v. The Ship Maria, 1 Pet. Adm. 186; Dixon v. The Ship Cyrus, 2 Pet. Adm. 407; Johnson v. The Eliza, U. S. D. C.

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an officer to continue in place for a few days, until the master can reach a place more convenient for the exercise of his authority, is not a condonation. And if he punishes him severely the forfeit

ure is considered as remitted.2

The power of the master to degrade an officer3 or a seaman is limited, and cannot be exercised for trivial offences. And as the

Mass., Abbott on Shipping, Am. ed. 652, n.; The Ship Mentor, 4 Mason, 84; Drysdale v. Schooner Ranger, Bee, Adm. 148.

The Olive Chamberlain, 1 Sprague, 10.

Sprague v. Kain, Bee, Adm. 184; Buck v. Lane, 12 S. & R. 266. In The Ship Moslem, Olcott, Adm. 289, 300, Judge Betts said: "The after-submission of the men to the authority of the ship, and return to duty, with the acquiescence of the master, and their continuing to serve on board until her arrival at Pernambuco, should operate in equity to preserve the wages agreed in the shipping articles. I do not hold the transaction an entire condonation of their offence, yet I do not think the master should be allowed to inflict corporeal punishment sufficient to bring the men back to duty, avail himself of their services, and then exact a confiscation of their whole wages for conduct, although highly disorderly and mutinous, yet based upon colorable grounds of wrong towards them, and of right on their part to hold themselves discharged of all obligation to the ship."

In the case of The Ship Mentor, 4 Mason, 84, 101, Mr. Justice Story said: "I must be permitted to say, that when a man ships in any particular capacity on board a ship, it is not for slight causes that he is to be degraded or compelled to perform other duty. He is not to be subject to the caprice, or distaste, or petulance of the master. He stipulates for fair and reasonable knowledge, and due diligence; but not for extraordinary talents. If he is guilty of fraud or misrepresentation he is doubtless subject to all just consequences. But when he acts bonâ fide, and is willing to perform his duty, if he should be more tardy in his movements than other men, it constitutes no just ground for degradation." See also Atkyns v. Burrows, 1 Pet. Adm. 244, 247. Robinett v. The Exeter, 2 Rob. Adm. 261; Thompson v. Busch, 4 Wash. C. C. 338. But if an officer or seaman is incompetent he may be disrated. The Elizabeth Frith, Blatchf. & H. Adm. 195, 210; The Exchange, id. 366; Morris v. Cornell, 1 Sprague, 62. And a steward may be disrated for embezzling the ship stores. Burton v. Salter, U. S. C. C. Mass., 21 Law Rep. 148.

Sherwood v. McIntosh, Ware, 109. It was held, in this case, that a steward could be degraded for acts of dishonesty or habits of intemperance, but not for a single act of intemperance. In Matern v. Gibbs, 1 Sprague, 158, the shipping articles contained a clause giving the master the absolute right to disrate an officer or seaman, and making his judgment final. The case was decided on the point that the clause in question, not having been brought to the notice of the seaman, and having been in use only three years, was not binding. The ques tion whether any length of time or knowledge on the part of the seaman would

power to disrate is remedial only, and not penal, the master cannot degrade a person to the lowest station if there be an intermediate one which he is competent to fill. But if an officer is promoted during the voyage by the captain, it seems that he may send him back to his former situation for a less offence than he could if he had originally been shipped for the higher station.2 And as the master has no right to degrade an officer where no offence has been committed, so he has no right to order him to do the duties of a seaman as a punishment, if no offence has been committed which would justify it.3

SECTION IX.

OF THE DESERTION OF SEAMEN.

Desertion is an offence which it is of great importance to prevent, as otherwise a ship, with all her cargo, might be left unmanageable. It is distinguished from absence without leave, by the intention not to return.5 But it is desertion to refuse to

prevent the court from inquiring into the justness or reasonableness of the clause was not passed on.

1

1 Smith v. Jordan, U. S. C. C. Mass., 1857, 21 Law Rep. 204. It was held, in this case, that a cooper could not be disrated and ordered to do the duty of a foremast hand, but he should be first tried as cooper's mate.

* Wood v. The Nimrod, Gilpin, 83.

3

Foye v. Leckie, 1 Sprague, 210. In this case the master found fault with the second mate for the manner in which he had sewed a rope upon an old sail, and ordered him as a punishment to slush the mast, and, on refusal, to furl the light sails. He refused to do these things, and was put in irons. Held, that the master had no right to imprison him.

* The master may inflict reasonable punishment for the offence of desertion. Per Sprague, J., in United States v. Alden, 1 Sprague, 95, 96.

• Cloutman v. Tunison, 1 Sumner, 373, 375; Coffin v. Jenkins, 3 Story, 108; Spencer v. Eustis, 21 Maine, 519; The Rovena, Ware, 309; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; Borden v. Hiern, Blatchf. & H. Adm. 293; The Union, id. 545, 552; Ship Union v. Jansen, 2 Paine, C. C. 277; The Westmorland, 1 W. Rob. 216; The Two Sisters, 2 W. Rob. 125. In The Westmorland, it was held that the going on shore without leave, to seek advice as to the effect of the articles, was not a desertion by the maritime law. So it has been uniformly held that it is not desertion for the seamen to leave the vessel, against orders, to go before the consul at a foreign port, to complain of their treatment. Freeman v. Baker, Blatchf. & H Adm. 372; Hart v. The Brig Otis, Crabbe, 52.

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return when ordered, after an absence without leave, or other temporary separation; as by capture, or wreck.2 If, during a collision between two vessels, a seaman, under the impression that his own vessel is sinking, jumps on board another, he is not guilty of desertion.3 Desertion is justified, or rather it is not desertion, when the vessel is left for good cause, as a change of the voyage without consent, cruelty, insufficient pro

The Act of 1840, c. 48, § 16, 5 U. S. Stats. at Large, 396, provides that "the crew of any vessel shall have the fullest liberty to lay their complaints before the consul or commercial agent in any foreign port, and shall in no respect be restrained, or hindered therein by the master or any officer, unless some sufficient and valid objection exist against their landing; in which case, if any mariner desire to see the consul or commercial agent, it shall be the duty of the master to acquaint him with it forthwith; stating the reason why the mariner is not permitted to land, and that he is desired to come on board; whereupon it shall be the duty of such consul or commercial agent to repair on board, and inquire into the causes of the complaint, and to proceed thereon as this act directs." In Morris v. Cornell, 1 Sprague, 62, 65, Judge Sprague said of this act: "It may be called the habeas corpus of the seaman, and the court will carefully and vigorously guard its inviolability." The right of the seaman under this act to lay his complaints before the consul has been held to extend only to those complaints over which the consul has jurisdiction, as where the seaman is detained contrary to his agreement, or after he has fulfilled it, or where the vessel is unseaworthy, but not to a case of complaint by the seamen that they are badly treated. But even if they have a right to see the consul, they cannot refuse to attend to duty at any moment until they have seen him, unless such refusal is absolutely necessary to prevent the loss of that right. The master is to be allowed some discretion as to the time and mode of landing. Jordan v. Williams, 1 Curtis, C. C. 69. But see Knowlton v. Boss, 1 Sprague, 163.

1 The Bulmer, 1 Hagg. Adm. 163; Piehl v. Balchen, Olcott, Adm. 24.

2 Boardman v. The Brig Elizabeth, 1 Pet. Adm. 128.

3 Hanson v. Rowell, 1 Sprague, 117.

The Cambridge, 2 Hagg. Adm. 243; Moran v. Baudin, 2 Pet. Adm. 415 ; Ingraham v. Albee, Blatchf. & H. Adm. 289; United States v. Matthews, 2 Sumner, 470. See also cases ante, p. 36, note 3. But the crew are not justified in such a case in seizing the vessel and bringing it home. The Mary Ann, Abbott, Adm. 270.

The Minerva, 1 Hagg. Adm. 347, 368; Limland v. Stephens, 3 Esp. 269; Prince Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205; Ward v. Ames, 9 Johns. 138; Relf v. The Ship Maria, 1 Pet. Adm. 186, 193; Rice v. The Polly & Kitty, 2 id. 420; Sherwood v. McIntosh, Ware, 109; The America, Blatchf. & H. Adm. 185. In Steele v. Thatcher, Ware, 91, 94, Judge Ware said: "I am, as at present advised, far from being prepared to hold that a battery, simply because it is excessive, will be a justification, even though it should pass

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