The libelants, Thomas Graves, Christian Bauer, James Bradley, and .Peter Doimelly, joined the ship W. F. Babcock at San Francisco on January A, 1896, and, having signed regular shipping articles as sailors, sailed on thabday upon a voyage' to Honolulu, and thence to New York, or other final port of discharge. The ship reached Honolulu on February 2, 1896, left for New York on February 27th, and arrived on June 22d. The libelants reached Honolulu in debt to the ship. The pecuniary inducements to desertion at that port which are presented to sailors who are on board seagoing vessels are attractive, and consequently the captains of such vessels are on the watch to prevent it. . On February 5th it was reported to the captain that Graves and Donnelly were missing, and that they had taken their clothes with them. On February 10th the same statements were made in regard to Bradley, and a similar report was made on February 20th in regard to Bauer. These alleged facts were promptly stated to the United States consul, who issued requests to the Hawaiian officials for the arrest of these men. They were arrested, and, after their apprehension, were detained in the station house until the vessel was ready to sail, when they were taken on board by the police, and thereafter served as sailors until she arrived in New York. Their previous debts to the ship, and the expenses which the captain was obliged to pay for rewards for their detection, for their arrest, detention, the wages of
“I, tie undersigned, consul general of the United States at Honolulu, Hawaiian Islands, do hereby certify that in the month of February, 189(5, complaints were successively made to me by the master of the ship W. F. Babcock, of Bath, Maine, that Thomas Graves, Peter Donnelly, .Tames Bradley, and Christian Bauer, of the crew of the said ship, had deserted the vessel, whereupon, at the request of the said master, I issued requests to the marshal of this government for the arrest and detention of these men, and they were afterwards brought before me; and it then and there having been made to appear to my satisfaction that the aforesaid complaints were true, — that the said seamen had, pursuant to the laws of the United States, duly signed a contract as seamen on said Ship for a voyage from San Francisco to New York, via Honolulu: that the voyage agreed for was not finished or altered, nor the contract otherwise dissolved; and that the said seamen had deserted the said vessel, and absented themselves without leave, — whereupon, at the request of the said master, the said seamen were remanded to the jail at Honolulu, to remain there until the said vessel should be ready to proceed on her voyage, or till the master should require their discharge, and then to be delivered to the said master; he paying all the costs of such confinement, and deducting the- same out of the wages due to said seamen. And I further certify that the reason for my action was because I was satisfied that unless they were so detained they would again desert. Witness my hand and official seal this 19th day of January, 1897.”
The master testified, but the court was of opinion that his knowledge in regard to desertion was based upon hearsay, and depended upon the mate’s reports, and that the evidence which was admitted did not establish the fact of the desertion, and was consistent witli the theory that the men “were sent to jail on the master’s complaint alone, without inquiring before the consul into the fact of desertion, either before imprisonment or afterwards”; and therefore all the items charged against the libelants, based upon the ground of alleged desertion, were disallowed. The mate left the ship in Honolulu, and his testimony was not taken. Prom the decree against the claimants this appeal was taken, and leave was granted, upon their motion, to take the testimony of the consul, which was taken accordingly in New York after the expiration of his term of office, and after his permanent return to this country from Honolulu. His testimony makes it perfectly plain that Graves, Donnelly, and Bradley deserted at the dates which have been mentioned; that, after their apprehension by the Hawaiian police at his request, they were brought before him, and an examination was had as to the fact and the cause of the desertion. These three men claimed that they were justified in leaving the ship by the unusual and
Upon the case as it stands upon the new proofs, in this court, with the finding that Graves, Donnelly, and Bradley in fact deserted, and were detained in the station house by the Hawaiian authorities, in consequence of their persistent refusal to return to duty on board the ship, and their threats of violence, there is no room to contend that the proper charges for their arrest and detention, the wages of their substitutes, and the amount which was necessarily paid by the ship to the authorities as a penalty for the willful and malicious breakage of a shop window by Graves, Donnelly, and Bradley on their way to the ship under custody, should not be deducted from their wages. Magee v. The Moss, Gilp. 219, Fed. Cas. No. 8,944. The historical review by the supreme court in Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, of legislation, both ancient and modern, of maritime countries upon the subject of the sailor’s contract for services, shows that it has always involved, “to a certain extent, the surrender of his personal liberty during the life of the contract,” and that the necessities, and perhaps the safety, of navigation have called into existence legislation by nearly all maritime nations for the nurpose of “securing the personal attendance of the crew on board, and for their criminal punishment for desertion or absence without leave during the life of the shipping articles.” It is a natural and equitable result that the expenses of this confinement, and the wages of their substitutes while they were refusing to work, should be deducted from their wages.
But, in regard to the fact of Bauer’s desertion, the claimants insist, as they did before the district court in regard to the desertion of all the libelants, that as it is a conceded fact that he was arrested and was Confined in jail as a deserter, and as section 4600 of the Revised Statutes, as amended by the act of June 26, 1884 (23 Stat. 55), requires the consular officer, “in all cases where deserters are apprehended,” to inquire into the facts, and to discharge the seamen if he is satisfied that the desertion was caused by cruel treatment, it must be presumed, until the contrary is shown, that there were proceedings before the consul which were regular, and, inasmuch as he is a special tribunal
“Sec. 4600. It shall be the duty of consular officers to reclaim deserters and discountenance insubordination by every means within their power, and where the local authorities can be usefully employed for that purpose, to lend their aid and use tlieir exertions to that end in the most effectual manner. In all cases whore deserters are apprehended the consular officer shall inquire into the facts; and if he is satisfied that the desertioD was caused hy unusual or cruel treatment, he ■shall discharge the seaman, and require the master of the vessel from which such seaman is discharged to pay one month’s wages over and above the wages then due; and the officer discharging such seaman shall enter upon the crew list and shipping articles the cause of discharge, and the particulars in which the cruelty or unusual treatment consisted, and the facts as to his discharge or re-engagement, as the case may he, and subscribe his name thereto officially.”
This section was originally the eleventh and the seventeenth sections of the act of July 20,1840 (5 Stat. 394). Before this act, consuls of the United States had no statutory power to commit or cause to he committed seamen to prison in a foreign port for desertion. The William Harris, 1 Ware, 367, Fed. Cas. No. 17,695. This statute does not in terms authorize consuls to seek the use of the prisons of a foreign nation. It makes it their duty to obtain the return and restoration of deserters, to get them back to the ship, and to obtain the assistance of local officers for that purpose, and, when the deserters have been apprehended, to inquire into the facts, ascertain the cause of the desertion, and, if the cause was the cruelty of the officers, to discharge the seamen; but if the desertion was without cause, and the seamen refuse to return to the ship, and assert a determination to desert, then it is still his duty to reclaim the deserters and discountenance insubordination, and to that end they will he left in the custody of the local authorities, or will be committed to their custody, so that they may he treated in accordance with the local statutes or regulations upon the subject of the detention of seamen who are at large in the port. Their actual imprisonment, in the absence of local statutes giving foreign consuls such a special power, is hy the act of the local magistrates or officers. Judge Curtis, in Ms examination of this statute in Jordan v. Williams, 1 Curt. C. c. 69, Fed. Cas. No. 7,528, says:
“If the local authorities are to be used, it is a reasonable, not to say necessary, inference, that they are to act in such manner, and by such means, as they ordinarily employ, and the most common and obvious means are the use of a place of confinement under the control of the local government. The power, in the most effectual manner to lend their aid, and use their exertions to employ the local authorities to discountenance insubordination, can hardly be said to be exhausted while the means most usually employed by those authorities have not been used. I think, therefore, that this act conferred upon consuls the power, and made it their duty, where the local authorities can, in their judgment, fairly exercised, be usefully employed to restrain a part or the whole of a crew who are in a state of insubordination, to use their exertions to that end in the most effectual manner, and that this restraint may be exercised by confinement on shore, in such place as is ordinarily used hy the local authorities for similar purposes; and, further, that the consul, in so doing, acts as a public officer, upon his official responsibility, intrusted with the power to judge in the first instance of 1he propriety and fitness of so doing, and subject to his responsibility to any injured by an abuse of his power.”