| Mass. | Oct 15, 1869
The principal question at the trial was as to th legality of the act of the master in discharging the plaintiff from the ship. The defendants justified this act under the sixth arti cle of the shipping articles, which is set out in the bill of exceptions ; and asked the court to rule that, if the master acted in the matter of the discharge in good faith, his judgment in discharging the plaintiff was final and the plaintiff could not recover. The court declined so to do, but instructed the jury that the terms of the sixth article did not make the judgment of the master in discharging the plaintiff out of the vessel final.
This instruction was correct. The sixth article does not give the master the power to discharge an officer or seaman from the ship. Its obvious purpose is, to give the master the right, if he finds an officer or seaman incompetent or otherwise unfit to perform the duties of his station, to degrade or reduce him to a lower station upon the ship. The word “displace” imports this, and the subsequent provision that “ a corresponding reduction of the lay of such officer or seaman, with reference to the duty which he may afterwards perform,” shall thenceforth ake effect, clearly points to this construction, and is inconsistent with the construction claimed by the defendants. The article contemplates that the displaced or degraded officer or seaman is to remain on board in the station to which he may be reduced.
It is clear that the usage alleged to exist in the whaling business cannot avail the defendants. Its effect, if proved, is to control and vary the written contract, unambiguous in its terms, into which the parties have deliberately entered. The authorities are conclusive that evidence of such a usage is inadmissible. The Reeside, 2 Sumner, 567. Ware v. Hayward Rubber Co. 3 Allen, 84. Dickinson v. Gay, 7 Allen, 29, and cases cited.
These views render it unnecessary to consider the other questions presented at the argument. Exceptions overruled.