1 Sumn. 373 | U.S. Circuit Court for the District of Massachusetts | 1833
This is a suit by libel against the appellant in personam, for wages asserted to be due to the libellant, as second mate of the ship America, belonging to the port of Boston. The voyage, as described in the shipping articles, is “from the port of Boston for Cuba; from thence to one or more ports in Europe; and back to her port of discharge in the United States.” The voyage was duly performed, and the ship safely arrived on her return at Boston, and there duly discharged her cargo; and there is no question, that the libellant performed his duty on board, unul after the arrival of the ship. The defence set up by the answer to the libel is, that the ship arrived at Boston, on Friday, the 4th of January, 1833; that after her arrival, to wit, on Monday, the 7th of January, the libellant, not having been discharged, “left the ship without any license or permission from the respondent, and without any license or permission from any other person to his 'knowledge; and that he (the respondent) is informed, and believes, that the libellant did not return, or offer to return on board, till Saturday, the 12th of January; and by so deserting the ship and his duty, this respondent suggests, that the libellant has forfeited his claim for wages.” The answer farther alleges, that the respondent, with the consent of the owner, on Friday, the 4th of January, left the ship, and went to Salem, on a visit to his family, whence he returned on Monday following; and on going on board, he saw the libellant there; that the respondent immediately went into the cabin, where he had occasion to visit his trunk,-which he found broken open; and that certain articles (naming them), of the value of $34, had been taken therefrom; and on his return on deck, the libellant had left the ship without his consent; and he has never since seen him on board of the ship. As to this latter allegation of embezzlement from the trunk of the respondent, during his absence from the ship, I do not perceive, in the actual form in which it is propounded, that it has the slightest bearing upon the merits of the case. It does not set up. that the embezzlement was either by the libellant, or by his connivance; or that it was occasioned by his gross negligence or failure in duty. And certainly without one of these ingredients, it is utterly impossible to maintain it, as an articulation of any matter of defence, or of set-off against the claim of wages. If it had been intended to present it to the court in either aspect, the answer should have been framed with suitable certainty and directness for this purpose; for in admiralty proceedings the cause must be heard upon the proofs, as applied to the allegations, secundum alle-gata et probata. No proofs are admissible of any facts not propounded in the allegations; and the decree must stand upon both. Whatever is not alleged is coram non judice. I dismiss, therefore, all consideration of this charge, as incapable of having any bearing upon the controversy before the court.
The other part of the defence requires a more full and exact consideration. By the general maritime law, desertion from the ship in the course of the voyage is held to be a forfeiture of the antecedent wages earned by the party; and this rule is equally as applicable to the officers, as it is to the seamen of the ship. It is believed, that this rule constitutes a part of the maritime code of every commercial nation, and is founded upon a universal principle of public policy. But, still, a very important question remains, upon which much loose and unsatisfactory opinion seems to pervade the community. It
The next question is, whether there has been any statute forfeiture of the wages for the asserted desertion. The fifth section of the act regulating seamen in the merchants' service — Act 1790, c. 50 [1 Stat. 133, c. 29]— provides, “that if any seaman, &c., shall absent himself from the ship or vessel in which he shall have shipped, without leave of the master or officer commanding on board, and the mate, or other officer having charge of the log-book, shall make an entry therein of the name of such seaman, Ac., on the day he shall so absent himself; and if such seaman, &e., shall return to his duty within forty-eight hours, such seaman, &c., shall forfeit three days’ pay for every day for which he shall so absent himself, to be deducted out of his wages. But if any seaman, &c. shall absent himself for more than forty-eight hours, at any one time, he shall forfeit all thq wages due to him, and all his goods and chattels, which were on board the ship, &c. '&c., at the time of his desertion, to the use of the owners of such ship or vessel; and moreover shall be liable to pay to him or them all damages, which he or they may sustain by being obliged to hire other seamen or mariners in his or their place,” &c. &e. This section has always been construed to apply to cases of unlawful absence during the voyage, after the vessel has left the home port, at which it commenced; as the second section of the same act has been also held exclusively to apply to such absence at the home port. See Cotel v. Hilliard, 4 Mass. 664. It supposes, therefore, that the voyage is still in transit; and can by no reasonable interpretation extend to any absence after the voyage is ended. Independent of this general ground, which at once, from what has been already stated, disposes of this part of the defence, there is another quite as decisive. The statute manifestly contemplates'a distinction between absence without leave and desertion; and it supposes, that the former, if there should be a return to duty within forty-eight horns, would not incur the forfeiture of all antecedent wages by the maritime law; for it would be almost absurd, if such were the legal result, to declare the minor penalty of a forfeiture of three days’ pay. It treats absence, therefore, without leave, to be an equivocal a’ct, and not necessarily desertion, animo non revertendi. But, inasmuch as such prolonged absence might endanger the safety of the ship, or the due progress of the voyage, it deems forty-eight hours’ absence without leave, to be ipso facto a desertion, and inflicts upon it a total forfeiture of wages. It thus creates a statute desertion, and makes that conclusive evidence of the fact, which would, upon the common principles of the maritime law, be merely presumptive evidence of it. It does not supersede the general doctrine of the maritime law; or repeal it; but merely in a given case applies a particular rule in poenam, leaving the maritime law in all other cases in full efficiency. But. to bring the case within the statute, there must be a strict compliance with all the statute requisites; for, in a case so highly penal, nothing is to be taken by intendment. Now, to work the statute forfeiture, it is made an indispensable condition, that the mate, or other officer having charge of the log-book, should make an entry therein of the name of such seaman, on the day on which he shall so absent himself; and the entry must not merely state his absence, but that he is absent without leave. Abb. Shipp, p. 468, pt. 4, c. 3, § 3, Story’s Note (Ed. 1S29). The entry on the very day is, therefore, a sine qua non. It is a just and reasonable precaution, to prevent all subsequent fraudulent entries, and all parol evidence of unlawful absences in the progress of the voyage, which may result from after thoughts and contrivances, from personal pique, or from the unavoidable deficiency of positive proof of leave. Whoever is much acquainted with maritime life, has had occasion to know, how many cases of this sort would arise from the common controversies between seamen and officers, if such solemn charges could be set up at any distance of time, without any other proof, than the quickening power of resentment, or the stimulated industry of memory, might
Whether the omission to record the entry of desertion in the log-book would have been equally fatal to an enforcement of the forfeiture of the maritime law for desertion, it is not necessary to decide. The present inclination of my opinion is, that it would not be. But, be this as it may, the omission would afford a strong presumption, that there was an express or implied leave of absence, unless the other circumstances of the case positively repudiated it But, although I cannot pronounce for a forfeiture of wages in this case founded upon any desertion, statutable or maritime; yet I am entirely satisfied, that the absence in this case was without leave, either of the master or owners, and indeed was against the known will, if not the orders, of both. It is, therefore, a case of a criminal disobedience and departure from duty; and the more reprehensible, because it was done by an officer of the ship, who ought to know, better, and owes a better example both to the seainen and to his employers. I cannot but feel also, that the evidence establishes, that the absence was the less excusable, because it was under some feelings of resentment for censures passed upon his inattention by the owner; and because it is, in an emphatic manner, the duty of the second mate to attend punctiliously to the discharge of the cargo, to prevent plunderage and damage, and to secure promptitude and care on the part of the persons employed in the unlivery. The excuses set up by him are in a legal point of view wholly unsatisfactory, and are matters of personal feeling, with which the court cannot intermeddle. I follow out the doctrine on this subject in the case of The Baltic Merchant, Edw. Adm. SO, and deem the owner entitled, not merely to a compensation for the loss of the services of the second mate during this period, but for something more, as a just admonition to officers having such high and responsible duties devolved upon them, and designedly departing from them. Of moral turpitude or blame I acquit the libellant, but not of studied omission of duty. The district judge came upon this subject to the same conclusion, which I have arrived at. He inflicted the penalty of a forfeiture of one month’s pay for the neglect. If this were the case of a common seaman, I should do the same. But in the case of an officer, I think the good of the merchants’ service requires a somewhat higher forfeiture. If the effect of this would be to deprive the libellant of his costs in this court, I- would not upon so slight a difference of opinion change the decree. . But, as under no circumstances I should allow the libellant’s costs in this court, thinking, as I do, that the appeal was rightly and properly taken, I shall decree a forfeiture of two months’ pay, instead of one month’s pay, of the mate to be deducted (namely $36), and affirm the decree as to the residue. Each party is to bear his own costs in this court; and the libellant is to be entitled to his costs in the district court. Decree accordingly.