Ward v. Ames

9 Johns. 138 | N.Y. Sup. Ct. | 1812

Per Curiam.

The question arising on this case is, whether the plaintiff below was not compelled to leave the ship, and actually forced out of the service by cruel treatment, and the danger of impressment, through the agency of the master. The court below must have drawn that conclusion. The seaman was, in the first place, and without any justifiable cause, cruelly beaten and abused by the mate, in the presence, and by the tacit consent, of the master. He was provoked to strike in his defence, and the mate was wounded in the head. With the knowledge, and, it is to be presumed, by arrangement with the captain, the mate went on board of a British man of war, lying in the harbour of Cadiz; a boat belonging to that ship, with a midshipman and crew, soon after came on board the Margaret, and demanded the plaintiff) Ames. They made repeated searches for him, and with the apparent approbation of the captain; and on the same night the plaintiff" left the ship. This is a strong case of an escape coerced by ill usage and danger of personal safety. No explanation of the transaction was given by the master, upon the trial of the cause, and the court below were warranted in their deduction, that this conduct was equivalent to an unjust and forcible removal of the seaman from the ship, and that he did not, therefore, forfeit his wages. It is an acknowledged principle in the marine law, that if the master unjustly dismiss a seaman, during a voyage, he is entitled to his full wages for the voyage. (Abbott, p. 4. c. 2. s. 1. Pothier, Louage des Matelots, n. 206. Laws of the Hanse Towns, art. 42.) And it has been considered and held, that if a seaman is obliged to fly from a service, by extreme ill usage and danger of his personal safety, arising from the master, who is bound to protect him, it is not the case of a voluntary desertion, but comes within the reach of the above principle. (Rice v. The Polly and Kitty, 2 Pet. Adm. Decis. 420. a note to vol. 1. p. 176.) If the facts did not absolutely require, they were at least sufficient to uphold, this deduction, and the competent tribunal having drawn it, there is no just ground for our interference. The judgment below must be affirmed.

Judgment affirmed.