| S.D.N.Y. | Apr 15, 1848
It is sufficiently proved that the libellant clandestinely carried on board the vessel in New York a considerable quantity of tobacco, and that, immediately on the arrival of the vessel in Liverpool, a very similar quantity was found secreted under the caboose occupied by him as cook. This is, I think, sufficient evidence that he took on board the tobacco there detected, and that his misconduct caused the arrest of the vessel. If it were the fact, as suggested by counsel, that there were two distinct parcels of tobacco discovered, it would not have been difficult for the libellant to have produced evidence tending to show what disposal was made by him of the portion which it is amply proved he carried on board. In the absence of any evidence of that character, it is fair to presume that the .parcels were the same; especially as the place of concealment was peculiarly accessible to the libellant
For a seaman wilfully to commit an act of dishonesty or fraud, which exposes the vessel to jeopardy, is a breach of the duty and fidelity which he owes to the ship. Such act amounts to barratry. (3 Durn. & E. [3 Term It] 277; 2 Caines. 222; Wesk. Inst. tit. “Bar-ratry”), and may be considered in diminution or in bar of his wages (Curt. Merch. Seam. 118). The wrong may be used by the ship-owner to countervail the seaman’s suit for wages, without resorting to a cross-action to that end. The libellant, if not a British subject, was shipped in a British port, and must be presumed cognizant of a law so notorious as that smuggling tobacco into Great Britain subjects the vessel to the danger of confiscation. Carrying the tobacco on board clandestinely, and keeping it closely concealed in port, imports his consciousness that the act was unlawful. His conduct must, therefore, be regarded as a gross violation of duty, attended with expense and delay to the ship, for which it is proper to impose a subtraction of wages by way of correction and amends.
As, however, the respondent has not proved the amount of loss occasioned to the ship by the misconduct of the libellant, (though estimates are given which import that it must have greatly exceeded the whole amount of wages earned,) the court is disposed to abate the wages only in part, and with a view to operate as a proper check to seamen, rather than to recompense the owner in this case. The decree will therefore be, that the libellant recover the wages due him on the voyage out and back, but without costs as against the respondent, and with a deduction of $25 for his unfaithful conduct and breach of duty in attempting to smuggle tobacco in the ship on the voyage. Decree accordingly.