127 F. 766 | E.D.N.C. | 1904
This cause being reconsidered on the petition of libelant hereto attached, it is considered, ordered, and decreed that the former decree herein dismissing the libel is affirmed.
The contention of libelant’s proctor that this court is bound by the finding of facts by a commissioner, which facts the court does not find supported by the testimony, cannot be sustained. A commissioner to. take testimony in an admiralty cause is to aid the court, and not to control.
Libelant was a member of the crew from the time he signed the shipping articles, and subject to all penalties imposed on seamen by the maritime laws of the United States. Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. 195, 46 L. Ed. 264. Under section 4596, Rev: St., the penalty for desertion (page 3113, Comp. St. 1901), “for neglecting and refusing without reasonable cause to join his vessel,” etc., is a forfeiture of wages earned and of the effects of the seaman on the ship. In this cause it appears the seaman, by permission, left the ship in the forenoon, at Charleston, S. C., for a temporary purpose, and was told at the time the ship would sail at 1 o’clock for Savannah. The ship did not sail until late in the afternoon, about ó'o.’clock p. m., and the seaman had not at the hour of sailing returned to the ship. He did not either go to Savannah to rejoin the ship, to which port he knew she would proceed, but returned to Beaufort, N. C., to which port he knew she would not proceed until after the rice trade season was over, in which trade the ship was engaged.
The court must therefore hold, and does hold, that under the circumstances there was a forfeiture of wages earned under the statute, and affirms the former decree dismissing the libel, with costs.
