monthly trips or otherwise, to or between foreign ports, as imposed by act of 1803. (2 Stat. L., 203; Rev. Stat., § 4309.) Bates, At. Gen., 1866, 11 Op. 72. If an American vessel is obliged by the law or usage prevailing at a foreign port to effect an entry, and she does enter conformably to the local law or usage, her coming to such foreign port amounts to an arrival within the meaning of section 2 of the act of 1803 (2 Stat. L., 203; Rev. Stat., § 4309), independently of any ulterior destination of the vessel, or the time she may remain or intend to remain at such port, or the particular business she may transact there. Bates, At. Gen., 1866, 11 Op. 72. The masters of fishing vessels, enrolled but not registered, are not required by sections 4309 and 4310 of the Revised Statutes to deposit their ships' papers with the United States consul when they arrive at a foreign port where there is such a consular officer. Harmon, At. Gen., 1895, 21 Op. 190. A consul of the United States in a foreign port has no power to retain the papers of vessels which he may suspect are destined for the slave trade. Black, At. Gen., 1860, 9 Op. 426. Coal barges, which are rough, square-cornered boxes, from 165 to 180 feet long, about 26 feet wide, and from 8 to 10 feet deep; which have no propelling power, no master or crew, nor any tackle, apparel, or furniture, nor any name, being generally designated by number; and which neither have a license, nor can be enrolled or licensed under any law of the United States, are not "ships" within the meaning of admiralty rule No. 20, and can not be made the subject of a possessory suit thereunder. Wood v. Two Barges (1891), 46 Fed. Rep. 204. That they can be held, under proper circumstances, within the admiralty jurisdiction in cases of certain maritime contracts—towage, for instance-in salvage cases, or in connection with a maritime tort, is not disputed; but, as for that matter, other articles of property under proper circumstances may be the subject of a maritime contract, or be subject to salvage services, and thus brought within the admiralty jurisdiction; and many things, not pretending to be ships, even constructions on land, may be brought within the admiralty jurisdiction in connection with maritime torts." A steam dredge, without motive power, engaged in deepening navigable waters, and capable of being towed from place to place, is a "vessel," within Revised Statutes, sec. 3, and is within the admiralty jurisdiction, and the persons employed on her and her scows in such work are "seamen," within Rev. Stat. sec. 4612, and are entitled to a maritime lien for their services. Saylor. Taylor, 77 Fed. Rep. 476, 23 C. C. A. 343. 2. SHIPMENT AND DISCHARGE OF SEAMEN, § 726. An American consul could not, without exercising a jurisdiction not conferred upon him by treaty or by the statutes of the United States, refuse to ship Dutch seamen on American vessels in Netherlands ports on the ground that they had not complied with the laws of their own country with regard to the performance of military duty. Mr. Bayard, Sec. of State, to Mr. de Weckherlin, Dutch min., Feb. 6, 1888, The American consul at Montevideo having requested instructions as to certain British subjects, seamen on board the American whaler Sunbeam, who asked to be discharged because war had broken out between the United States and Spain, the Department of State replied: War no ground for discharging seamen peaceful vessel.” Mr. Cridler, Third Assist. Sec. of State, to Mr. Swalm, consul at Montevideo, tel., June 16, 1898, 162 MS. Inst. Consuls, 355. A seaman is not to be discharged for slight or venial offenses, nor for a single offense, unless of a very aggravated character. If he is charged with insubordination, it should satisfactorily appear that he is incorrigibly disobedient, and that he persists in such conduct. Hence it was advised, where a seaman refused one day to work on account of sickness, which proved to be intoxication, and again refused to work the next day, when he was unable to do so from illness consequent upon his intoxication, that the offenses charged "would hardly have constituted sufficient grounds for his discharge without his consent.” Griggs, Atty. Gen., Sept. 20, 1898, 22 Op. 212, 213, citing The Superior, 22 Fed. Rep. 927; The T. F. Oakes, 36 Fed. Rep. 442. In this case the seaman was discharged by the consul on the joint request of the master and himself, and the consul's action was held to have been justified, apparently on the ground that he apprehended that the seaman, if he returned to the vessel, would be subjected to cruel treatment, "owing to the evident ill will displayed by the master toward the seaman." A consul who had discharged a seaman stated that his principal reason for so doing was the fact that he felt it would be unsafe to send the man back to the vessel, owing to the evident ill will displayed toward him by the master. Advised that, although no cruel treatment was actually recorded, yet, if the consul discharged the seaman because of such treatment," or because he feared such treatment might supervene," he was justified in so doing, it appearing that the master and the seaman had joined in an application for the latter's discharge. Griggs, At. Gen. Sept. 20, 1898, 22 Op. 212. Notwithstanding the Revised Statutes, section 4576, and section 8 of act of 1840 (5 Stat. 395), requiring masters of American vessels to give bond for the return of all the crew, unless discharged in a foreign country with consent of a consul, these sections, construed with the aid of the other parts of these statutes, do not require a master to return to the United States foreign seamen shipped at their own home for a particular cruise, ending where it began, and discharged there according to the terms of their contract, though without the consent of a consul. The consent of a consul could not be rightly withheld in such a case, and there is no law requiring it to be asked. United States v. Parsons, 1 Lowell, 107. Under sec. 20, act June 26, 1884, amending Rev. Stat. § 4576, a master may make a contract with seamen providing for their discharge abroad without being required to pay extra wages on such discharge. The action of a consul in discharging a seaman in a foreign port is not conclusive where a libel is filed for wages. Campbell v. Steamer Uncle Sam, McAllister, 77. After the discharge of a seaman in a foreign port before a consul, with a settlement of his wages and an order on the owners for payment signed by the master with knowledge of all the facts, an offset can not be allowed for an alleged fine against the ship for the seaman's alleged smuggling, the proofs as to such fine being doubtful. Healey v. The Maracaibo (1896), 79 Fed. Rep. 809. A consul can not detain seamen in prison as a punishment, after he has discharged them from their contract at the request of the master. Jordan v. Williams, 1 Curtis, 69. Where a consul intervened, on the invitation and by mutual consent of the master and crew of a foreign-built yacht owned by a citizen of the United States, and discharged certain dissatisfied mem bers of the crew, and a question was afterwards raised by the Department of State as to his power to discharge the seamen of such a vessel, it was held that, as he had exercised no consular authority, but had in effect acted as arbitrator by consent of parties, no question arising out of his action was then pending in the administration of the Department. Harmon, At. Gen., July 26, 1895, 21 Op. 201–203. 3. DESERTION. $ 727. See, also, the cases under the next section. The fact that a fireman on a steamship is required to perform extra watches, in place of a sick seaman, does not justify desertion; nor does the fact that his contract of service may have been harsh, or the term long (three years); and one so deserting can not recover wages. Steindl v. The Lady Furness, 84 Fed. Rep. 679. Condonation of neglect of duty and of unauthorized absences does not imply consent to a subsequent termination of the contract of service by the seaman by leaving the vessel without permission. Diochet v. The Occidental, 87 Fed. Rep. 485. A voyage was described in the shipping articles as " from the port of San Francisco to Port Hadlock, Washington, and thence to San Francisco for final discharge, either direct or via one or more ports of the Pacific coast." Held, that, under these terms, the vessel might proceed from Port Hadlock immediately to San Francisco, or stop at one or more intermediate ports; but that when she passed by San Francisco and went to San Pedro, and, after discharging there, returned to Port Hadlock, before going to San Francisco, there was a deviation; and that it consequently was not a desertion, warranting forfeiture of wages, for the crew to leave the vessel at San Pedro without the master's consent. Bradley . The J. M. Griffith, 71 Fed. Rep. 317. Where seamen were arrested at Honolulu, on request of the American consul, for desertion, on their failure to appear for work at the proper hour, held, in a suit for wages, that the mere certificate of the consul that the men had deserted, without any record of an examination before him, was not legal evidence of desertion, and that, in the absence of other proof, the evidence was insufficient to sustain any offsets on the ground of desertion. Graves . The W. F. Babcock (1897), 79 Fed. Rep. 92. 135 "To make proceedings before the consul evidence, there must," said the court, "be either a duly proved copy of his record, or else his deposition, as in the case of other witnesses." The fact that a sailor who was arrested for desertion in a foreign port and detained in jail by the local authorities, appeared before the consul and was subsequently detained by the police, does not, in the absence of any record or testimony from the consul, other than a mere certificate, raise a presumption of a judicial investigation by the consul and a finding of causeless desertion. Graves. The W. F. Babcock (1898), 85 Fed. Rep. 978, 29 C. C. A. 514. 79 Fed. Rep. 92, reversed. Shipping articles which provide for a voyage to one or more foreign ports, or for a coasting voyage, at the option of the master, do not sufficiently state the nature of the voyage as required by Rev. Stat. § 4511, and are void. The Occidental, 101 Fed. Rep. 997. A consul of the United States has no authority to demand and re-. ceive from the master of a vessel the money and effects belonging to a deserter from the vessel. Williams, At. Gen., 1875, 14 Op. 520. 4. RECOVERY OF WAGES. § 728. Claims of mariners for wages are highly favored by the courts, and discharges are not justified for trivial causes. The Idlehour, 63 Fed. Rep. 1018. The powers and duties of American consuls as to seamen's wages are confined to vessels owned by citizens of the United States and constituting a part of our mercantile marine by sailing under our flag. Berrien, At. Gen., 1831, 2 Op. 448. Seamen left behind in a foreign country on account of inability, from sickness, to return in the vessel in which they went out, are within the provisions of the act of February 28, 1803, supplementary to the act concerning consuls, and for them the master should deposit with the consul three months' pay over wages, &c., as in other cases of voluntary discharge. Wirt, At. Gen. (1823), 1 Op. 593. Under the act of June 26, 1884, but one month's extra wages can be exacted in this or any other case. |