THORNE v. WHITE, 23 F. Cas. 1132

BY THE COURT (HOPKINSOX, District Judge). It is unreasonable to insist on the neglect of duty, when the seaman was prevented by confinement and threats. Passes at him, with a drawn sword were made by the captain, at one time, when he attempted to come on deck. If affrays on board ships, arising from sudden quarrels, are to forfeit wages, forfeitures would be very common indeed. It is a mistake, frequently entertained by owners and masters of ships, that broils, assaults on, or resistance to masters (produced most commonly by faults on both sides) forfeit wages.

Such offences are often improperly called mutiny or revolt; but they do not amount to this offence, which is defined by our statute, and declared to be a capital crime, and punishable with death. They may be, when the fact justifies the conclusion, evidence of intent, or overt acts, furnishing ingredients for this crime. But in general, they are merely the intemperate effects of personal animosities, sudden passion, the pride of power, and the sourness of reluctant obedience, or mulish resistance.

It is the duty of seamen to bear even the ill-temper of the master, and to get out of his way, wh,en instances of passion occur. Consulate del Mare, 16; Sea Laws, 139, 140. Some of the maritime laws are particular in adjusting how a mariner shall demean himself when the master is enraged, and when he may stand on his defence. A master must not pursue (as was done in the case before me) a mariner, who flies from him when enraged. Many of the sea laws are curiously directory in such points.

When a sailor is disobedient or mutinous, the captain is to hold up the ship’s towel (according to one of the sea laws), for a certain time, within which the mariner is to submit, under the penalties therein prescribed. The law warrants moderate correction of mariners; but, this correction, by the law of Oleron (Laws of Oleron, art 12), is confined to one stroke of the fist. The laws of Wisbuy, among others, are very severe on mariners striking the master; but the cruel punishment therein designated is disused. All these laws regulate the- authority of the master; and confine it to moderate correction.

When the crime of a sailor is too great for the master’s authority to punish (which should be evident' on the trial, to justify severe measures) the master and his officers are to seize the criminal, put him in irons, and not take the law into their own hands, but bring him to justice on their return, But the contract for wages is not affected. Although it is laid down as a general rule, that criminal offences, and especially those of inferior grade, do not affect civil contracts, I would not be understood to say, that this rule cannot have exceptions.

There may be cases so atrocious as to render the seaman unworthy of further trust, and operate in violation of his contract. It may be dangerous to retain him in service, or to suffer his being at large -in the ship. Such cases must always be determined on the special circumstances attached to them. Loss or damage, accruing to the owner or master by any negligence, or crime, may be set off against wages, as in case of any other demand.

I have generally thought myself warranted to give a latitude of construction to the words “moderate correction,” where chastisement was salutary and merited, and in this I have never been overniee. The safety of a ship sometimes depends on promptly cheeking disobedience, and stimulating exertion. Subordination is peculiarly essential to be enforced, among a class of men whose manners and habits partake of the attributes of the element, on which they are employed. I have never bound over a master for correcting a sailor, unless cruelty was exercised, or improper weapons used.

Instances have not been rare in this court (and they have not been overlooked) where the most enormously cruel, and unjustifiable acts of tyranny, and wanton abuses of power, have been exhibited by masters of ships. Seamen too frequently provoke, and receive, proper correction; but masters should set examples of discretion, and regulate their passions. They must stop at the point, beyond which the lavs' forbids them to pass. The sea laws enjoin on the master a temperate demeanor, and orderly and decent conduct, towards seamen.

By several of these laws, he is finable for abusive expressions, or misconduct, towards mariners. He risks the consequences, if he commences a dispute with illegal conduct, and improper behavior. It is impossible to fix with certainty, the nice tints and colours, which mark the boundaries, between a justifiable command, and an improper exercise of authority; but these accuracies are seldom required. In the case stated, the circumstances are strongly marked. The laws, though often applied to for this purpose, do not encourage -or gratify revenge; they-only punish for reformation, or example.

When a mariner is incorrigibly disobedient, and will not submit, and offer to do duty and-make amends, the master may discharge him. He may correct and confine him on board the ship, or dock him of his provisions. If he refuses, or obstinately neglects, to do duty, for any length of time, he-does not perform his contract. Such negligence and disobedience, not temporary and fugacious, but continued, must be set off against his demand, for the period during which they exist.

If he is restrained from duty by confinement, he is excused from it by the act of the master; who must, on submission, accept of his services, in most cases. But the true ground of this case is, that a mariner’s contract is not destroyed, by such criminal offences. He is amenable to a criminal prosecution;. and liable to fine and punishment. He must not be twice punished for the same offence; first, by forfeiture of wages — secondly, by the fines and punishments affixed by the sea laws, or the municipal law of our country.

I have, on sundry former occasions, given my opinion upon the points — when a seaman’s contract for the voyage expires, and when he may leave the service of the ship. This is a

summary of my decisions, as well in the case stated, as in many others, similar in circumstances. See the case of Edwards v. The Susan [Case No. 4,209]. Wages ordered to be paid. It appeared that cross prosecutions, for the criminal of-fences, were commenced before a magistrate. A receipt in full of all debts, dues, and demands was produced. The judge stated, such receipts are frequently taken, where quarrels have arisen at sea, to repel prosecutions. They are only prima facie evidence, and may be examined into — Seamen are denied their wages often, unless they sign such receipts.

But this is illegal, and no such terms ought to be insisted on. In a case wherein confinement on board the ship, of two disobedient seamen, appeared to me proper, and indispensable, and where frequent endeavours to reclaim were ineffectually tried, for almost the whole latter

section of the return voyage, 1 held the confinement in irons, so justifiable and necessary for the safety of the ship, that I refused to allow wages for that part of the voyage. The two seamen were influential characters, and atrocious leaders of a rebellious crew. They had not misbehaved on the former part of the voyage, I considered it to be a partial breach of contract, and not a forfeiture in toto. These seamen complained, I thought without cause, of high-handed and cruel treatment. I left them to their remedy at common law, by action for false imprisonment, or any other mode of redress.

This is by no means mentioned as a general censure, but as an inducement to strict examination into eases likely to develope such incidents. An enumeration of them would not only be shocking to humanity, but offensive to common decency. It would include not only melancholy consequences of sudden and unbridled passion, but calm, deliberate, and cruelly protracted torture, not exceeded by many accounts we have of the rack, or the real or fabled torments of the inquisition.

Some of the perpetrators of these enormities have escaped by defect of testimony, owing to witnesses being absent, and some by doubts about jurisdiction. I have had only to determine on the facts, as they related to contracts. When suits at common law were recommended, or the parties left to their own course, the poverty of the victims, or the difficulty of retaining transient witnesses to give evidence, has precluded prosecutions, or suits, entirely; or, wheie instituted, prevented punishments, or recoveries.

Aware of these obstacles to retribution, some have accepted trifling compromises, to which their “poverty and not their will consented.” Where seamen have been deemed mutinous or dangerous, and in some instances for af-frontive expressions, in others for very trifling offences, masters have thought themselves justified in confining them in prisons, or guard-ships, at foreign ports, 1 have not considered this as legally justifiable, though some occasions have appeared to render it unavoidable. Some have alleged that the police of the port required it.

In the greater number of instances, I have found these punishments to proceed from arbitrary and tyrannical tempers, and, if not entirely unwarranted by the offence yet not defensible in the extremes to which they were extended. Many seamen have perished by diseases and hardships, to which they-were subjected in loathsome prisons or infected ships; more have been rendered wretched, and incapable of further service by chronic diseases, or the consequences of acute disorders.

I have had to adjust numberless altercations in these cases, about physicians’ bills, gadi fees, or costs paid to military or police officers. 1 generally determined according as the original cause, prompting the punishment, justified or not. or palliated the proceeding. 1 have always held the step to require strong justificatory proof. But I could not conceive myself warranted, while the seaman was undergoing one punishment to inflict another, by allowing deductions from wages, or pay for the hire of another, especially when repentance, or offer to return to duty was in proof.

Some instances have occurred to warrant the measure, and bear out the master in refusing the re-acceptance of service, and totally ejecting the offender from the ship. Some years ago it was not infrequent for masters, at foreign ports, to terrify mariners into an abandonment of their contract, by threats to deliver them to officers of belligerent ships; and some native, and other adopted citizens, were so delivered; others were hired in their stead at low wages, or to work their passages.

X checked this practice, by decreeing wages for the voyage, the causes for those unjustifiable threats, or dismission from the ship, commonly, appearing unlawful and sordid. I have repeatedly found great difficulties in the way of doing justice to either party, in cases of disobedience or neglect. Sailors have so many peculiar propensities, as well vicious as venial, that it is not easy to arrive, or stop when there, at the true points of either punishment or forgiveness.

To punish every fault would be endless; and wou'd, by driving seamen from their own, to seek some other occupation, tend to lay up our ships. 1 could, therefore, do nothing more satisfactory to myself, than to establish some general principle, and disregard niceties in the application. Without balancing much as to degrees of fault or negligence, 1 have required proof of special damage, in either case. Where damage, or loss, has been sustained, I have ordered retribution; having regard to the circumstances and ability of this class of men.

Where neither loss or damage has been in proof, I have overlooked the offence or neglect, where it did not require exemplary notice and punishment. Officers of ships are authorized to use correction for common faults; and can exercise compulsory means, as stimulants to duty. To fix occasional crimes, or faults, as repellants to claims under contracts, would be tantamount to superceding most agreements by mariners. The old sea laws attempted a reformation by mulcts and punishments for enumerated crimes, offences and neglects.

These being obsolete in this part of their arrangement, and in some details cruel and inefficacious, are not now prac-tised upon. There can therefore be no accurately marked line; and loss or damage must form the general rule. Included in this rule, are all deductions for loss of service, by refusal or voluntary and unnecessary neglect of duty; as well as retributions for malfeazanee, mis-feazanee, or gross negligence.

Casual misconduct may be forgiven, or retributed; but inveterate and incorrigible habits of long continuance and dangerous tendency, either entirely annul, or vacate the contract, during their existence, according to circumstances.