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.

66

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 v. 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 v. The W. F. Babcock (1897), 79 Fed. Rep. 92.

"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 v. 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 receive 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.

The act of July 20, 1840, did not authorize any distinction to be made, in the payment of extra wages to American seamen discharged abroad, between a seaman shipped in a foreign port and one shipped in the United States.

Mr. Calhoun, Sec. of State, to Mr. Don, consul at Valparaiso, Feb. 26, 1845, 11 MS. Desp. to Consuls, 344.

Section 3, act of June 19, 1886, permitting a seaman to stipulate in his shipping agreement before a shipping commissioner for an allotment of wages to a creditor, was by implication repealed by the act of February 18, 1895.

Grossett v. Townsend, 86 Fed. Rep. 908.

As to shipping commissioners' expenditures, see United States v. Reed, 9
C. C. A. 563.

The act of August 19, 1890, having been by the act of February 18, 1895, so amended as to exempt vessels in the coastwise trade (except between ports on the Atlantic and ports on the Pacific), and vessels engaged in trade between the United States and Canada, from the requirements of the act of 1872 as to keeping official log books, the wages of seamen deserting from such vessels may be adjudged forfeited without proof that they were ever noted in the log books as deserters.

The Victorian (1898), 88 Fed. Rep. 797.

The act of Feb. 18, 1895, in providing for the omission of item No. 8 of section 4511 of the Revised Statutes, relating to the allotment of wages, in its application to the form and contents of shipping articles in the coastwise trade, did not repeal, by implication, the positive enactments of the acts of June 26, 1884 (23 Stat. 55), and June 19, 1886 (24 Stat. 80), permitting allotments.

Hogan v. The J. D. Peters (1897), 78 Fed. Rep. 368.

The act of December 21, 1898, makes many changes in the laws relating to American seamen, and consequently alters the Consular Regulations of 1896 in various particulars in respect of such matters. Under these changes, while a consular officer is still required to see that all arrears of wages and extra wages that are due to a seaman on his discharge are paid by the master, either directly to the seaman or to the consul for the seaman's use, the consul is no longer required to use these wages in the maintenance and transportation of the seaman. Circular to consular officers of the United States, Feb. 6, 1900, transmitting a decision of the Comptroller of the Treasury, dated Jan. 11, 1900, as to the effect of the act of Dec. 21, 1898, on the accounts of consular officers in connection with American seamen. (State Dept. Circulars.)

Where a seaman was shipped by the owners for a voyage on a vessel which was afterwards wrongfully taken possession of by the master and diverted from her voyage, in a distant port, where there was no court accessible through which the seaman could collect the wages due him, it was held that he was justified in staying with the vessel and was entitled to wages until returned to the port of discharge. The Gen. McPherson, 100 Fed. Rep. 860.

Seamen who go on board a vessel as mariners, voluntarily but without any valid contract, may be required by the master to perform such services as are necessary to the navigation of the vessel while at sea, but they are not bound to continue with the vessel through the voyage, and may leave it at any port without forfeiting the wage earned, although they can not in such case require the owner to return them to the port of shipment.

The Occidental, 101 Fed. Rep. 997.

Shipping articles described the voyage as "from the port of San Francisco, Cal., to Port Blakeley, thence to San Francisco, for final discharge, either direct or via one or more ports of the Pacific coast, either north or south of the port of discharge. Voyage to be repeated one or more times." The vessel proceeded to Port Blakeley, →nd thence with a cargo to San Pedro, where, after unloading, the master announced his intention of returning to Port Blakeley. The crew thereupon demanded their pay, claiming that the voyage ended at San Pedro. Held, that the shipping articles did not permit a return from San Pedro to Port Blakeley before going to San Francisco, and that the seamen were entitled to their wages upon the master's announcement of his intention to return direct to Port Blakeley, and did not forfeit them by leaving the ship upon his refusal of their demand.

Heinrici v. The Laura Madsen (1897), 84 Fed. Rep. 362.

Shipping articles described the voyage as follows: "From port of San Francisco, Cal., to any port or ports on Puget Sound or British Columbia for orders. At Puget Sound or British Columbia, vessel may be ordered to load cargo for any port or ports in Alaska, as the master may direct. If the vessel is ordered to Alaska, the trips between Puget Sound or British Columbia and Alaska to be repeated one or more times; thence to San Francisco for final discharge, either direct or via one or more ports on the Pacific coast, for a term of time not exceeding six months." Held, that the articles set forth the nature, duration, and termination of the voyage with sufficient certainty to satisfy Revised Statutes, section 4511.

Diochet v. The Occidental (1898), 87 Fed. Rep. 485.