The Moslem

BETTS, District Judge. It will not be attempted in the examination of the merits of this case, to settle or discuss all the topics brought into the controversy in the multifarious evidence or protracted arguments of the parties. Four or five entire days have been exhausted on the hearing. The testimony upon various points in dispute cannot be reconciled, and the judgment of the court lias not unfrequently been, governed more by the strong probabilities surrounding the case, than the positive assertions of witnesses. In respect to the condition of the ship when the libellants entered upon the voyage, I deem it less important to determine whether she was fully seaworthy than to ascertain the fairness of the dealing of the master with them. They were English seamen ashore, out of employment, and seeking an opportunity to leave the Cape. The ship lay about three weeks in the port undergoing repairs, and they had full opportunity to inform themselves of her state, so far as that could be known from external appearances and the degree of leakage, because, not only was her condition a fact of- notoriety, but they were in intercourse with some of her crew who had left her at that port, and were themselves frequently about her, and, as it would appear, also on board her at her berth. The master explained her situation to them when they were hired, and engaged them expressly to aid in working "the pumps, assuring them their general work in navigating her would be light, as he had shipped extra hands. My attention has been carefully directed to this particular, as from the general heedlessness of sailors they are exposed to be drawn into improvident bargains; and these men, in a degree destitute, in that remote part of the world, where the 'opportunity to select their employment must be rare, would be eminently liable to imposition or disadvantageous engagements. But, looking watchfully at the whole evidence to this point, I am satisfied the libellants entered into this agreement with a plain understanding of its character and probable hazards, and that the officers of the ship practiced no deceit or improper influences with them in making the shipping contract. Still, if the ship was actually un-seaworthy at the time, or proved to be so when she entered upon the voyage, the libel-lants were not bound by their contract, and could rightfully refuse to continue the voyage and compel the master to return with the ship to port. Porter v. Andrews, 9 Johns. 350; U. S. v. Ashton [Case No. 14,470]. The conduct of the' libellants in requesting the master the first day out to go back to the port of departure, because of the leaking of the ship, was respectful and proper, and if not obeyed, provided the ship was unsea-worthy, would have dissolved their obligation to remain with her and incur the hazard of a voyage on board. The master most proi> erly submitted to their demand, and I think satisfactorily proves, he attempted in good faith to comply with it. His judgment, that greater danger was incurred by beating back against wind and current in her then state • than by continuing his course upon the trade winds, is confirmed and justified by the judgment of several experienced shipmasters who were examined to that point on the trial.’ This was clearly explained to the crew at the-time, and all hands went freely to their duty and put the §hip upon her course. After this the libellants were bound to obey the orders' of the master, and lend their services faithfully in the work of the ship. I do not consider the statement of the master to the crew that he would run in sight of the island of St. Helena as a positive engagement to make that direction part of the route, so that a departure from it would constitute a deviation. The marine laws are peremptory that the master shall perform the voyage stipulated in the shipping contract, and holds the seamen discharged of their obligation to the ship if he deviates from it Curt. Rights Seam. 25. But this duty respects the voyage, its inception, and its specified termini, and has no relation to the track or line of navigation pursued in accomplishing it. That must, from its nature, be contingent, or regulated at the sound discretion of the master. Had the libellants proved an express agreement of the master to run in sight of St. Helena, it would be no deviation, in a maritime sense, to have varied his route so as to fail of a literal fulfilment of such engagement. To keep intentionally away from the island would be a breach of the terms of such engagement, but it would be damnum absque injuria, if no necessity existed for resorting to that port. Of that necessity the master, from his position, must be judge, and if he acts in good faith and fairly upon the facts before him, his decision [897] should be final. He considered the vessel capable of making Pernambuco, that she was under no exigency to seek St. Helena, and that there was no object in stopping there except to save the crew from imminent peril to their lives, as the ship could not obtain repairs at that port, and the interests and safety of the ship and crew required him to pursue the most direct course to Pernam-buco. This conclusion is fully supported by the evidence in the case. Nor under the facts can the claim of the libellants prevail, that they were absolved from all obligation of obedience and duty to the vessel because she was put upon the course to Pernambuco, and not directly to New-York. Ordinarily, the shipping contract is to be understood as contemplating a direct voyage from the port of departure to that of its termination, unless a different course is stipulated in the agreement, or is plainly made known to the seamen. The Minerva, 1 Hagg. Adm. 347; The George Home, Id. 372. But in this instance, after the ship left port, a departure from the shortest line to her port of destination would be justifiable on the fact that Pernambuco was the nearest accessible port at which the repairs needed could be obtained; and alsu because it was the surest and speediest route in the condition of the ship. A change of voyage which may discharge mariners from the obligation of their contract, must be wilfully made by the master, and enforced against their consent or acquiescence. Wood v. The Nimrod [Case No. 17,959]. This is a common course of navigation with vessels bound from the Cape to the United States, and might reasonably be implied as so understood by the libellants, as they were in the port, waiting and seeking the opportunity of a return to this country. They made no opposition or objection to this course of the voyage, when it was declared to them and was resumed, and the promise of extra pay had been given them. They grumbled afterwards, and were insolent and occasionally insubordinate, but their complaints were against the state of the ship and the labor exacted of them, and not to the course run, until they were carried past St. Helena. Then it was they refused to perform further duty on board unless the ship was taken back to the island, and persisted in' the refusal until coerced by close confinement and privation of food to yield and return to their services. These facts, I think, afford a satisfactory presumption, that if the master intended going to Pernambuco .when the libellants were hired, they were apprised of it, or that if that route was fixed upon after getting to sea, they either acquiesced in it. or the change was one of probable necessity, and thus excusable in the master. Under either circumstance. the libellants were bound to a full obedience and faithful discharge of their contract. and their misconduct on that occasion, in my opinion, justly authorizes the owners of the ship to resist the demand for wages, and have, at least, judgment of forfeiture of the extra pay, being a proportion of the libel-lants’ wages. The court is not compelled to pronounce a forfeiture of the entire wages, but may punish malfeasances or dereliction of duty at sea by such abstraction of wages or mulcts as will, in its judgment, supply an appropriate punishment. The Baltic Merchant, Edw. Adm. 86; The Lima, 3 Hagg. Adm. 359; Cloutman v. Tunison [Case No. 2,907]; Poth. Mar. Cont. art. 178; The Elizabeth Frith [Case No. 4,361]. The after submission of the men to the authority of the ship, and return to duty, with the acquiescence of the master, and their continuing to serve on board until her arrival at Pernambuco, should operate in equity to preserve the wages agreed in the shipping articles. I do not. hold the transaction an entire condonation of their offence, yet I do not think the master should be allowed to inflict corporal punishment sufficient to bring the men bade to duty, avail himself of their services, and then exact a confiscation of their, whole wages for conduct, although highly disorderly and mutinous, yet based upon colorable grounds of wrong towards them, and of right on their part to hold themselves discharged of all obligation to the ship. The point taken on the defence, that the engagement of the master to give the crew extra pay was obtained from him by duress, or unlawful compulsion, is not tenable. It was proposed spontaneously by himself, and in the exigencies of the ship and all her company, was reasonable and proper in itself. and would be upheld in favor of these men. i had they not sacrificed their rights by their I own after misconduct. • It is further insisted, that this claim was ¡ satisfied by the master after the termination ■ of the voyage at this port, and was included ’ in a receipt in full, taken by him on settlement | with all the men except Scott. The testimony | of the libellants’ proctor, and a clerk of the ¡ claimants’ proctor, in respect to that settle-I ment. stands in direct conflict. Without deciding the question of credit between those witnesses, and independent of the other special grounds of defence, I shall place the deuial of extra wages to these men, exclusively upon the right of the owners to their forfeiture. The proof is ample that their contract wages were fully paid, and that they became parties to this action.solely to recover their extra pay. It is therefore ordered, that the libel be dismissed in respect to Rooney. Phillips and Channan. Although Scott had been the ringleader in the disturbances and mutinous conduct at sea on the passage from Cape Town to Per-nambuco, yet I regard his restoration to duty by the master, on his confession of his faults and pi'omise of good behavior, a remittance of the absolute forfeiture of wages he bad incurred, and I shall not accordingly discriminate898 between Ms case and that of Ms fellows up to the arrival of the sMp at Pernambuco roads. The statements in the proofs of the transactions at Pernambuco in respect to Scott are entangled and equivocal, and lack that fullness and certainty which might enable the court to determine satisfactorily the true character and extent of Ms offences at that place. He was at times disorderly and dangerous, and was punished severely therefor, on shipboard and on shore, and it would appear that the master considered these punishments adequate and sufficient for the offences, as he offered to receive him back to Ms place in the ship. The other men involved with Mm in the misconduct accepted the pardon, and performed duty up to the arrival of the ship in New-York, and were there paid their wages in full. Scott maintained an unflinching refusal to submit, declaring he had been kept so long in irons he would remain in that condition to New-York, and be judged there, and he was accordingly confined in irons on board during the voyage home. Scott addressed a letter to the master at Pernambuco, manifesting penitence and humble submission to his authority, promising to refrain from liquor and behave well thereafter. It is not clearly shown why that repentance was not accepted by the master, and it has not been made to appear distinctly that the letter was not 'written during his last confinement at that port, although much rambling and incoherent evidence was given tending to show that the letter was written long before the ship left the port, and that the conduct of Scott was constantly violent and refractory until her departure. Scott insisted he was entitled to a discharge at Pernambuco, and that the master had no rightful authority over him there; and so far as he may be regarded acting under an honest belief in that right, his refusal to yield to the commands of the officers of the ship should be considered leniently, and Ms first offer to return to duty should have been accepted. The proofs, however, tend strongly to the conclusion that this submission was in fact offered and accepted on his first imprisonment, and that he immediately afterwards renewed Ms disorderly and mutinous conduct, and was imprisoned therefor on shore and in the ship. After he was brought back to the vessel, in irons, and on tha homeward voyage, he was repeatedly urged by the master to return to his duty, but he peremptorily refused to do so. This conduct necessarily bars his demand for wages-from Pernambuco to New-York. Desiring to look as favorably as the testimony will admit at extenuating circumstances on the part of seamen, when a total forfeiture of wages already earned is sought for, I hold that the master has not given sufficient proofs to make the misconduct of Scott at rernambueo. and from thence to New-York, forfeit his antecedent wages, and shall, accordingly, decree in his favor for the balance of wages due and unpaid, on the arrival of the ship at Pernambuco. I cannot collect from the proofs the true state of his accounts with the ship at the time he was imprisoned at Pernambuco, and, uMess the parties agree upon the amount, it must be referred to a ‘commissioner, to ascertain the sum then due him, deducting all payments made Mm. The final decree will include all proper directions in respect to the details of the judgment and costs. [The commissioner reported $15.42 as due to Scott. Exceptions were taken. The report was confirmed, but without costs to the libellant. Case No. 9,876.]