Bush v. The Alonzo

CLIFFORD, Circuit Justice. The principal questions presented for decision are questions of fact, as is obvious from the analj-sis given of the libel and answer. Li-bellant alleges that he was discharged by the master, and. if so. then he is entitled to recover the balance, if any. due him for his wages. Respondent denies that proposition, and alleges that the libellant deserted without any justifiable canse; and if that is true, then it is clear that the libellant is not entitled to recover anything. These opposite theories cannot both be true, and it is necessary to examine the testimony to determine which is correct. Legal discharge, however, is not the only ground of claim set up by the libellant. He claims to re-’ cover on that ground, but he also claims that he is entitled to recover, even if the court finds that he voluntarily left the ship, because, as he alleges, he was repeatedly-punished by the master from hatred, malice, and revenge, and without any justifiable cause; that he was so cruelly beaten and kicked by the master during his service on the schooner that he was rendered helpless for a time, and that he was justified in leaving the ship because his life was in danger. Considering the case a clear one, I shall not enter into any extended examination of the evidence. Parties must be content with brief explanations as to the conclusions of the court in matters of fact, as they cannot be benefited by extended argument. The proofs do not warrant the conclusion that the libellant was technically discharged, but they do show that he was cruellj- beaten and kicked by the master during the voyage without any justifiable cause, and that he left the ship for fear of further wanton injury from the master, and that he had reasonable grounds for his fears. Those-grounds were the repeated punishments he-had received from the master during the-voyage without justifiable cause, and the-threats of the master after the schooner arrived on this coast. The statement of li-bellant is, that the master, on the 10th of' July, 1805, said to him that he had a good mind to break his bones or knock him overboard, and that he would kill him if he did' not leave the ship when she arrived in port. Under that threat he left the ship; and I am clearly of the opinion that he was justified in leaving. Suffice it to say, without repeating the testimony, the threats as-stated are satisfactorily proved, and there is-no reason to doubt that the previous cruel treatment and his threats combined induced', the seaman to leave as alleged in the libel.. Being justified in leaving the ship, the voyage as to his contract is ended, and his rights are the same as if he had been technically discharged. Emerson v. Howland [Case No. 4,441]; The Exeter, 2 C. Rob. Adm. 261; The Rovena [Case No. 12,090]; The Cadmus v. Matthews [Id. 2.282]. Repeated acts of cruelty and oppression on the part of the master, especially if accompanied by threats of death or enormous bodily harm, will justify a seaman in leaving the ship before the voyage is ended. Steele v. Thacher [Case No. 13.348]; Sherwood v. McIntosh [Id. 12,778], Evidently, therefore, the suit cannot be defeated upon the ground that the voyage was not ended, 882 nor upon the ground that the libellant wil-fully deserted the ship. The charges of incapacity, negligence, and wastefulness are not satisfactorily proved. On the contrary. I am of the opinion that if he really was discharged as alleged, that he was improperly discharged, and that he was entitled to the wages for which he contracted in the shipping articles. Whether nominally dis-rated or not, he was still more or less employed as cook and steward, and is entitled to his wages. Appellee insists that he is entitled to a greater sum than was allowed by the district court, but he did not appeal from the decree, and cannot be heard except in support of it. Airey v. Merrill [Id. 115]; Allen v. Hitch [Id. 224]; Stratton v. Jarvis, 8 Pet. [33 U. S.] 4; Canter v. American Ins. Co. 3 Pet. [28 U. S.] 318. Most of the matters of fact have been fully argued by the counsel on the one side and the other, and in deciding the cause the court has been greatly assisted by those ar-ments; but it cannot be expected that the opinion of the court will contain much more than the conclusion of the court upon matters of fact. The decree • of the district court is affirmed, with costs.