Thomas Dunn v. Joseph J. Comstock, Master of the steamer " Baltic.", 2 E.D. Smith 142

By the Court. Ingraham, First J. The defence in the court below to the plaintiff’s claim for seamen’s wages, on board the steamer Baltic, was, that the plaintiff and his assignors left the steamer at Liverpool and went ashore without leave, and remained absent from the vessel four hours, and thereby forfeited their wages previously earned. The justice allowed the statutory forfeiture of three days’ wages, and gave judgment for the residue of wages earned.

In the shipping articles is contained a clause, prohibiting the seamen from going on shore to sleep at night, and that if any of the crew absent himself, without liberty, his wages, previously earned, shall be forfeited; and in case the person so forfeiting his wages shall be permitted to do further duty, it shall not do away with such forfeiture. Under this clause the defendant claims the forfeiture of all the wages earnpd previous to the time of the plaintiff’s absenting himself from the vessel. I know of no reason why such a contract should not be enforced. The parties had a right to make it.

The stipulation was necessary for the good regulation and safety of the vessel. No advantage appears to have been taken of the seaman in making it, and he should be held responsible for a violation of the contract on his part, as well as the defendant. It is said, by the respondent, that the clause was inserted by the defendant. If this was done fraudulently, as to the plaintiff, it would not be binding upon him; but there is nothing to warrant such a conclusion, nor any testimony to support any such view of the contract.

R appears to have been fairly entered into, and is equally binding with any other part of the articles. If there had been no such clause in the articles, the decision of the court helow would have been proper. The only forfeiture in such a case would be that of three days, as provided by the act of congress. But the parties are not prohibited from making an additional penalty for violating the shipping articles; and where such is the case, the defendant would not be limited to the statutory forfeiture. .The return does not show on what day the plaintiff was absent from the vessel.

As the whole case rests upon admissions made on the trial, I suppose that has been overlooked. The account between the parties should be stated in this manner: Erom the amount of wages up to the day of absence, there should be deducted the money paid in Liverpool and the hospital money, and the balance up to that day to be forfeited, under the shipping articles. The plaintiff then could only be entitled to recover wages from the day of sailing from Liverpool, from which is to be deducted the amount paid into court, §23 53, and the balance is the amount for which judgment should be rendered.

If the parties will file a stipulation admitting the day of sailing, the judgment can be reduced under the direction of one of the judges, and judgment rendered for that sum so ascertained, and. thereby another action will be rendered unnecessary. If not, the judgment must be reversed. Ordered accordingly.