The Levi W. Ostrander

NETERER, District Judge (after stating the facts as above). Is the libelant a deserter? is the issue to be determined. Judge Hough, in The Italier, 257 Fed. 712, 714, 168 C. C. A. 662, 664, says: “The definition of desertion ‘in the sense of the maritime law’ is settled, and consists in ‘a quitting of the ship and her service, not only without leave and against the duty of the party, but with an intent not again to return to the ship’s duty.’ Cloutman v. Tunison, 1 Sumn. 373, Fed. Cas. No. 2,907, where the subsequent cases are collated.” [ 1 ] Whether the libelant was a deserter will depend upon his right to leave the ship at the place of anchorage on the expiration of his shipping articles. Under sections 4511 and 4530, R. S., and sections 8300, 8313, and 8322, Comp. St., and amendments, neither master nor- crew can renounce their shipping articles “before the voyage is ended, unless the contrary be expressly stipulated in the contract.” Hamilton et al. v. U. S. (C. C. A.) 268 Fed. 15. The voyage had not ended. The ship was on the homeward voyage, the libelant had no right to abandon the ship in distress. The ship at the time libelant left ’was not in a place of discharge, and was in distress, and his failure to return constituted desertion, because he entertained no intent to return to the ship. [2] The deposit with the American consul by the master of the wages due would not constitute a waiver of the desertion, because there was no disposition or intent of the seaman to return; on the contrary, his absence was willful. The willingness on the part of the master to fiave the seaman return would not be a waiver of the continued willful absence of the seaman. The master had a right to deduct from the wages due the fines and penalties imposed for willful misconduct, on the part of the seaman. While consent and agreement to receive the seaman is a waiver of the desertion (Whitton v. The Commerce, Fed. Cas. 17,604), the willingness to have him-return did not mitigate against the master on the continued willful absence, and relieve the seaman from the continued desertion. The conduct of the libelant, as disclosed in this record, is very discreditable, and the penalties provided by law are merited, as appears from the record in this case, and should be carefully considered, and upon such consideration I think the libel must be dimissed. Footnotes [1] other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes