BROWN v. The INDEPENDENCE, 4 F. Cas. 399

HOPKINSON, District Judge. The court do not say that there may not be certain matters in which the official acts of the consul may be proved by his official certificate; but the facts stated in this certificate are not of that character. This is to prove another certificate of the time of Brown’s discharge from the hospital; the proceedings of a police court, the sentence of that court, the nature of the wound inflicted on Brown, and the hospital expenses. None of these are official acts of the consul, nor did he know one of them of his own knowledge. Had he sworn to them it would have been hearsay evidence.

He certifies to facts and proceedings before another tribunal, with which he had nothing to do, and of which he had no knowledge, official or personal. I will admit the certificate so far as to show that the libellant was left at Hamburg, without the consul’s knowledge or consent, because that is material, but not to prove the rest that it contains. The certificate meant by the act of congress [2 Stat: 208] is only of use in the cases there mentioned, and also to remit a penalty due to the United States as an admission against their interest The evidence was rejected.

HOPKINSON, District Judge, delivered the following opinion in the case: In this case penalties are claimed on both sides. The libellant counts upon his full wages for the whole voyage, and also upon two months’ p'ay for having been left by the captain in a foreign port: . On the other hand, the respondent insists that he is not entitled to his wages home, and that he is chargeable with heavy expenses incurred for him in the hospital at Hamburg. The libellant had received a severe wound on the head, inflicted by a stick of fire-wood. He had behaved with great and provoking insolence to the mate.

I give no opinion as between them. It appears that the police officers of the port, who had seen the affray with the mate, came, of their own accord, on board of the- brig, went below, where the libellant was, took him on shore and put him in the hospital. He neither went on shore by his own will and act, nor was he put or.left there by the captain. On the contrary, the captain was very desirous to have him and bring him home; but, after waiting, he could not get him, and was obliged to leave him behind.

Should the captain, under such circumstances, pay the penalty of two months’ wages, allowed to a seaman who is discharged without good cause, in a foreign port? I think he did not discharge him; he was unwilling to leave him. On the other hand, the seaman was in no default. He did not desert the brig, -or abandon his duty. He did not violate his contract, which was for his voyage out and home; he was prevented from performing the contract by a superior force; by the officers and law's of the place where the vessel lay. Why then should he suffer loss, or be deprived of the benefit of his contract?

He was unable to do his duty, to perform the service, by no fault on his part. It is like the case of sickness, when the seaman is prevented, by the act of God, from performing his part of the contract, he nevertheless has his wages. In the case of Hart v. The Little John [Case No. 6,153], the ship had delivered her cargo at Liverpool. On her return (the voyage was out and home), she wras captured by a French cruiser, who kept her for eight days, then recaptured by an English frigate, and restored on the payment of salvage.

The iibeliant wras taken on board the French cruiser, carried to France, and there released. He was allowed his wages for the whole voyage, deducting the preportion of the salvage.

The judge says he grounded his opinion on cases like' this on those of sailors falling sick, and on those cited by the libellant's counsel.' In such cases, it is said, the wages are due, “because the mariner is not in fault,” and the “default of the seaman is. no more to be imputed to him than if he had fallen sick on the voyage, in which case his wages are due, without deduction.” The judge affirms the rule, and says, “it is clear that in case of sickness preventing a performance of duty, if the malady be not occasioned by the mariner’s malconduct, that full wages are payable, whatever expense or loss the ship was under on this account,” and adds: “I see no reasonable distinction betwreen this case and that” The judge undoubtedly says that his “opinion is founded on the general principle that where a mariner is prevented by force, when he is not in fault, from pursuing his voyage, he is to be -paid' his full wages,” adding that “if during the continuance of the voyage, be earns w'ages -in other service, they shall be deducted from his claim.” In the kffray between the mate and the libellant, the latter was in fault by his insolent language and deportment; but the mate was not less so-in correcting him with an improper w-eapon.

To strike a man on tlie,, head with a log of fire-wood, was to endanger his life, and the injury here was very severe. But, if the libellant was in fault, so as to justify' the correction he received, I should not understand that the fault attends on him so as to be extended to the subsequent taking him on shore, without any complaint or application on his part, nor, so far as we know, with his acquiescence or consent But I give no opinion on this point, as I am not prepared to say that the libel-lant had, justly or legally, drawn upon himself the kind of chastisement he received.

Decree for the libellant fifty dollars and costs.