22 F. Cas. 1 | D. Mass. | 1858
These are five libels by seamen against the master of the ship Anna Kimball, for alleged personal wrongs and violence, while at the island of Mauritius. In August, 1856, the libellants shipped at Calcutta, for a voyage to Boston. When three days out from the Sand-heads, they had heavy weather, and the ship leaked badly. The crew in the forecastle consisted of seventeen men. Some of them went aft and requested the captain to put back, on account of the leak; he replied that the wind would be ahead, and that he would put into the first port for repairs; in this answer the crew acquiesced, and continued, without further objection, to do their duty, although the labor at the pumps and working the vessel was severe, until their arrival at Mauritius, one month and twenty days after leaving Calcutta. After arriving at Mauritius, the libellants and the rest of the crew moored the ship safely, secured the sails, and performed every duty, until the morning of the second day, when the libellants told the mate that they wished to see the captain; they then went aft, and told the captain that they wished to be discharged, because they were dissatisfied with the ship. They complained
When the libellants went aft and asked for their discharge, the captain was bound to listen to and investigate their complaints, i and he had no reason for refusing to perform this duty. The libellants had shown no symptoms of combination or insubordination, and the mates had severally inflicted violence upon the men, as above stated, to which no resistance was made, and none of the crew lifted a hand, or uttered a word, in their de-fence. All had performed their duty, until the ship had been safely moored in port. The captain had no reason to doubt their sincerity; they had shipped to go to Boston, without expecting to put into Mauritius; they had not been on shore, and liad not been tempted to leave the ship by the seductions of the place, or the offer of higher wages; they were not indebted to the ship, on the contrary, all had at least twenty days wages due. which they offered to relinquish, in order to get a discharge. The case of Shivel-bein imperiously demanded the interposition of the captain. Whether he had deserved any punishment is left in doubt by the evidence, but even if he had, the infliction of any punishment by the second mate was unlawful. Any officer may use force -when necessary to coerce the performance of a duty, when an exigency requires instant obedience, but no one but the highest officer on board can inflict punishment for a past of-fence, for the purpose of reformation or example. The offence imputed to Shivelbein did not require immediate action; it could have awaited the decision of the master. But the punishment of knocking down with a belaying pin would have been illegal, if inflicted by the master himself. It is a great mistake to suppose that the master has performed his whole duty, when he abstains from personal wrongs to the men. They have a right to his protection against illegal violence from his officers, and he is bound to hear their complaints, and prevent a repetition of their wrongs, and yet he not only turned a deaf ear to their other grievances, but when the second mate avowed the outrage he had committed, and a determination to repeat if, he only ordered the libellants to their work. He thus tacitly sanctioned the past conduct of his officers, and encouraged a repetition of it in the future. Thus not only the men who had been illegally punished, but the rest of the libellants were left subject to outrage from the mates, without even an assurance of the protection or interposition of the master. I do not think that the master had any right to their further services upon such conditions; and he ought either to have granted them other terms, or to have discharged them; and as he refused any other terms, and the ship was then safely moored in port, the master and consul ought to have granted them a discharge. After the libel-lants had declared, as above stated, that they would do no more duty, the captain went ashore and obtained, under an order rrom the consul, a police force, with which he returned and took them before the consul, not as persons who had requested their discharge, or appealed to his authority, but as culprits, upon his complaint of having refused duty;' and it was that charge which the consul proceeded to hear. Their defence, if gone into, must have involved an investigation of their grievances, but it was noc gone into; the consul only inquired whether they had refused duty, and declined hearing anything in justification or excuse. In answer to his peremptory question, whether they refused duty, they answered that they did. as they could obtain no satisfaction; and thereupon, by order of the consul, they were all sent to jail, on shore, where the libellants remained thirty-three days. At the end of that time, the ship being about ready for sea, the consul employed a police force to carry them on board, and directed the officer to carry them in irons, which he refused to do. On coming alongside of the ship, the mate ordered the men to come on board singly; about half the men obeyed the order by going successively up the ladder, and over the rail, . but
Let us here inquire, whether it was justifiable on the part of the master and mate, to put these men in irons, the moment they reached the deck, without allowing them to go to their chests, or to make any change of the clothes which they had worn day and night for thirty-three days in jail, or to cleanse them from the vermin. The only reason for it, in addition to the facts I have already detailed, was that they had uttered threats. But this is not proved. It is alleged they used threatening language, while in jail: but for this the captain and consul could have only rumor or hearsay. Mot one of these seamen had, at any lime, done or attempted any violence; and before the cai>tain proceeded to inflict punishment by confinement on ship-board, for supposed threats in jail, I think he should have seen them, heard their statement, and learned, by a personal interview, their state of mind, and the effect of a month’s imi>risonment. Indeed, whenever a master of a ship thinks it necessary to cause any of his crew to be confined in a foreign jail, he ought to pay some regard to their condition and treatment there, and should, from personal examination, or at least through a reliable agent, see that they are such as humanity requires; and yet it does not appear, that either the captain, or the consul, ever visited the jail, or sent any one; except that the consul's clerk went twice a week to pay the jail fees. The attempt to put Shorey in irons was not justifiable. But it does not necessarily follow, because a wrong is attempted upon a seaman, that he may use every kind and degree of resistance. In cases where the wrong is such as will admit of complete indemnity, the policy of the law requires present submission, rather than a resort to violence; but Shorey neither inflicted, nor attempted to inflict any injury upon the mate; he merely withdrew his hand and threw the irons overboard.
About two hours after these occurrences, the captain came on board, accompanied by the consul, four ship-masters, and a passenger by the name of Rollins. They went into the cabin, and after remaining there a short time, came on deck, all seven with pistols in their hands; the captain and some others had revolvers. They took their station near the cabin gangway, with the police force on the left. The captain, or consul, then called upon the mate to state what had taken place upon the men’s coming on board, and he thereupon gave his version of the affair. The six seamen at this time were all upon the top-gallant forecastle, unarmed and quiet. The captain directed the mate to order, or to bring, Shor-ey aft. The mate went forward and some of the police also, the mate gave the order to Shorey. who got down from the forecastle to proceed aft, when either the second mate, or some of the police, said to these men. “You are all wanted aft,” and thereupon they all got off the forecastle, Lewis being the first, and following just behind Shorey; the mate then took hold of Lewis by the clothes on his breast, probably to prevent his going aft, and Lewis took hold of the mate in the same manner; some struggle ensued, but no blows, or attempt to injure each other. Upon seeing this, the captain, or the consul, cried out to his party. who had all remained near the cabin door. “Forward men, and fire:” and thereupon all the seven men rushed forward, pistol in hand, the captain and consul taking the lead, till they approached near the mate and Lewis, and then attempted to fire at the latter: the captain’s pistol only exploded the cap. but the consul’s went off, and his ball passed through the mate’s hand into his wrist; it must have passed •very near the body of Lewis, as the mate was holding him with that hand by the breast; the firing continued until there had been from six to twelve shots, but fortunately none but the first took effect. Shor-ey continued to go aft. till he reached where the carpenter stood with the irons, when he voluntarily put out his hands to have them put on; all the rest of the men, except. Shivelbein and Batsford, also went aft during the firing, and quietly had manacles put on them by the carpenter. Shivelbein and Batsford retreated forward, and got again upon the top-gallant forecastle, the former on the starboard and the latter on the nort side. The captain and others pressed forward with revolvers, and fired several shots. Shivelbein laid hold of capstan bars,
I have stated the facts, which, after careful examination, I think are established by the evidence. I have not overlooked the certificate of the consul, which was introduced by consent, in lieu of his testimony, and which, in many respects, makes a very different representation. A part of the certificate is mere hearsay, and inconsistent with the testimony. But other parts state what fell under the consul's own observation, particularly what took place on board of the ship, after his arrival with the armed party. I have carefully considered his representation of that scene, and given it all the weight due to the source from which it is derived. But it is so utterly inconsistent with the whole testimony in the cause, not only from the numerous witnesses for the libellants, but also from those for the respondent, that I cannot rely upon it as correct. Indeed, so-irresistible is the counter-evidence, that the counsel for the respondent has not insisted upon the correctness of the certificate. After the tumult had ceased, and all the libellants had been fettered, water was thrown upon Batsford and Shivelbein, then lying on the deck, to wash off the blood, and all, excepting the latter, were immediately confined below. How long Shivelbein remained insensible, is left doubtful; when consciousness was restored he also was confined below. Batsford and Lewis were put between decks, with their hands in irons, over a chain above their heads, passing from stanchion to stanchion, between their arms; their feet also were fettered; the chain was so high, that Batsford could reach the deck only on tiptoe, and part of his weight was supported by his wrists; in about half an hour, however, the carpenter put a box under his feet, so that he could stand upon them. A part of the time. Batsford and Lewis were confined with their hands in irons, around both a chain and stanchion. Shivelbein and McDonald were put into the forward cabin, their hands and feet in irons, and their arms and legs around stanchions. Shorey was dealt with more severely; he was carried to the store-room, aft
I am of opinion that the libellants are severally entitled to recover against the respondent. for all the injuries suffered by his authority or acquiescence, on ship-board.
Decree in favor of Shorey. for $370: Shiv-elbein. $200; Batsford, $200; Lewis, $50; McDonald, $40.
Several indictments were pending against the captain for the same transaction.
[NOTH. A motion was subsequently made by the garnishee that he might be discharged, on the ground that he had no goods, effects, or credits of the principal in his hands, and prayed to be allowed to make disclosure under oath. Case No. 12.807.]