HART et al. v. The OTIS, 11 F. Cas. 689

HOPKINSON, District Judge. Whiteman v. The Neptune [supra] was a case of voluntary absence, and not one where the mariner was taken away by a force which he could not resist. The transactions between the men and the mate are not a part of the case, except under the general charge of misconduct, and there can be no specific forfeiture or deduction on this account. As to what the libel-lants said, it is only explanatory of what they did, but what they did is the point of inquiry. Did they desert? Their intention was nothing if they did not.

It was not such a desertion as to forfeit their wages, for there was no entry of the fact on the log-book, and they wére again received on board. The imprisonment at Havana was most unjustifiable. They went to the consul to complain. The captain had made no complaint of them, but they went to complain of him. Was this desertion? Was any desertion pretended? Was it such a desertion as authorized the imprisonment? It was, at most, disobedience of orders. But the captain found them at the consul’s, and the offence seems to have been, not desertion, but that they had dared to complain of him.

Finding they would not be heard, they left a tribunal in which they, justly, had no confidence; and when the consul and captain issued their warrant of arrest, they did not know or inquire whether the men had not returned to the vessel. In truth, some of them had done so. Decree for libellants for the full amount of wages claimed, and costs.