were drunk all next day and night, and were then taken before a Chap. 4. magistrate, and charged with desertion, Lord STOWELL said (g), "This conduct of theirs was criminal, and as such a just subject of punishment; but as to the crime of desertion, it no more resembles that, than it does a robbery or a murder. They had left all their clothes on board, and made no preparation, and their conduct on shore was the very reverse of what must have been the conduct of men meditating an escape." An action by a seaman for his wages was defended on the ground of desertion. It appeared that the plaintiff with other seamen had come on shore in a boat with some officers, and on being required to return to the ship, they said they had had no victuals for the whole day, and requested to stay till they had had some. This being refused, they remained on shore, and went to the ship the next morning, when the master dismissed them, and refused to pay their wages. Lord ELDON (h) said, "The question here is, Is this a desertion? I am of opinion that it is not. The plaintiff and the other seamen only requested to be permitted to remain on shore to have some victuals. It was a reasonable request. They had no intention of abandoning the ship; they, in fact, went on board as soon as they had the means, and were refused to be received. After thus offering to return to their duty, the captain shall not be permitted to call such conduct a desertion, when the whole conduct of the plaintiff showed that no such act was intended." Again, in the case of the Frederick (i), a suit for seaman's wages, the owners put in a defensive allegation that the plaintiff, with five other mariners, got intoxicated with rum, clandestinely procured; that they quarrelled with the steward and the mate for not giving them more; and made the same demand on the captain in a violent and turbulent manner. Being desired to go to bed and put out the lights, they refused to obey; and the captain told the ringleader that if he was dissatisfied he might go on shore, which he said he would do. The others then said, if one went all would go; and the captain ordered the second mate to go in the boat with them. It was alleged that he did not in any way discharge them, and that they were guilty of mutiny and desertion. But Lord STOWELL, in commenting on the evidence said, "I am bound to notice that the captain admits he was so irritated that he cannot depend exactly upon his memory of what passed; that the principal mate, a witness of great credit, goes no further than to say, that the captain did not formally discharge them; leading, by the use of this word formally, to a conjecture that there might still be something said which these men, with a willingness of interpretation on their side, might construe into an actual liberty to depart-a liceat migrare. And if his words were such as might be so understood, it would be a little hard, I think, to stamp that misinterpretation with the guilt of absolute mutiny and deser (g) The Ealing Grove, 2 Hagg. 15. The Susan, ibid. 229. The Lady Campbell, 2 Hagg. 5. The Macta, 2 Hagg. 158. Renno v. Bennett, 3 Q. B. 768. (h) Sigard v. Roberts, 3 Esp. Rep. 71. Part III. tion." But an absence originally permissive may become a desertion, if the mariner, when required to do so, refuses to return to the ship (a). And on the other hand, a clear case of desertion may be mitigated into the less offence of temporary absence, if at the time not treated by the master as a desertion (b), or by his subsequent condonation. Proceedings against seamen absenting themselves. Leaving the ship for the purpose of entering into the navy is not a desertion (c). By 17 & 18 Vict. c. 104, it is provided that any seaman or apprentice who neglects or refuses to proceed to sea in any ship in which he is engaged to serve, or absents himself without leave, may, at home or abroad, (if the laws permit) be apprehended without warrant by the master, mate, owner, ship's husband, or consignee, and be thereupon (if the seaman requires it) conveyed before some court capable of taking cognizance of the matter, and detained for that purpose for a period not exceeding twenty-four hours; or if he does not require it, or there be no such court, be conveyed at once on board (d). If such apprehension appears to the court before which the case is brought to have been made on improper or insufficient grounds, the persons so making or causing it to be made incur a penalty not exceeding 201., which, if inflicted, is to be a bar to an action against them for false imprisonment (e). The court before which a seaman is so brought may, if the master or owner or his agent so require, instead of committing the offender to prison, cause him to be conveyed on board for the purpose of proceeding on the voyage, and direct any expenses properly incurred by the master or owner to be paid by, or deducted from the wages he has earned, or may under his existing engagement earn (ƒ). Seamen imprisoned for the offences above-mentioned, or for any other breach of discipline, may, before the termination of the period of their imprisonment, at the request of the master or owner, or his agent, be ordered by any justice of the peace to be conveyed on board the ships in which they have engaged to serve, for the purpose of proceeding on the voyage (g). Any competent tribunal, before which any seaman or apprentice, in any proceeding relating to the seamen's wages, has in the course of the voyage been convicted and rightfully punished, may direct a part of his wages, not exceeding 31., to be applied in reimbursing any costs properly incurred by the master in procuring such conviction and punishment (h). The Act contains other provisions for facilitating the proof of desertion, so far as concerns forfeitures of wages (i); for ascertaining (a) The Bulmer, 1 Hagg. 163. (b) Miller v. Brant, 2 Campb. 590. Beale v. Thompson, 4 East, 546. If a seaman through his own negligence is left behind at a foreign port, this is not desertion, Button v. Thompson, L. R. 4 C. P. 330. (c) 17 & 18 Vict. c. 104, s. 214. The Amphytrite, 2 Hagg. 403. (d) Sect. 246. See sect. 243, post, 136. (e) Sect. 246. (f) Sect. 247. the amount of forfeitures for desertion in the case of contracts for wages by the voyage, run, or share (k); and for their application to the reimbursement of the expenses occasioned by such desertion to the master or owner of the ship from which the desertion has taken place (1). It provides also that any question concerning the forfeiture of, or deductions from, the wages of any seaman or apprentice, may be determined in any proceeding lawfully instituted with respect to such wages, notwithstanding that the offence, though punishable by imprisonment as well as forfeiture, has not been made the subject of any criminal proceeding (m). Chap. 4. disobedience. Upon sections 19 and 257, it has been held that to convict under the second of those sections of the offence of knowingly harbouring a seaman who has deserted, the ship must be shown to be British (n). With respect to the other offences before-mentioned the reader Drunkenness may be referred to the judgment of the Court of Admiralty in the and case of Robinett v. the Ship Exeter (o), a suit for wages, brought by the mate, who had been hired by the captain at Bombay, and discharged in the course of the ship's voyage to Europe, at Colombo, on a charge of incapacity, drunkenness, neglect, and disobedience of orders. "Upon the matter of drunkenness," said Lord STOWELL, "the court will be no apologist for that; it is an offence peculiarly noxious on board a ship, where the sober and vigilant attention of every man, and particularly of officers, is required. At the same time, the court cannot entirely forget that, in a mode of life peculiarly exposed to severe peril and exertion, and therefore admitting in seasons of repose something of indulgence and refreshment, indulgence and refreshment are naturally enough sought by such persons in grosser pleasures of that kind; and therefore that the proof of a single act of intemperance committed in port is no conclusive proof of disability for general maritime employment. Another rule would, I fear, disable many very useful men for the maritime service of their country. "As to disobedience to lawful command, it is an offence of the highest kind; the court will be particularly attentive to preserve that subordination and discipline on board of ship which is so indispensably necessary for the preservation of the whole service, and of every person concerned in it. A peremptory or harsh tone, or an overcharged manner, in the exercise of authority, will never be held by this court to justify resistance. It will not be sufficient that there has been a want of that personal attention and civility which usually take place on other occasions and might be wished generally to attend the exercise of authority. The nature of the service requires that those persons who engage in it should accommodate themselves to the circumstances attending it, and those circumstances are not unfrequently urgent, and create strong sensations, which naturally (k) Sect. 252; sect. 181. (1) Sect. 253; sect. 171. (m) Sect. 254. (n) Leary v. Lloyd, 29 L. J. M. C. 194. Part III. find their way in strong expressions and violent demeanour. The persons subject to this species of authority are not to be captious, or to take exception to a neglect of formal ceremonious observances of behaviour; and on these grounds the court would hold that the charges of this defence are of a nature sufficient to justify dismissal if they are properly substantiated in evidence, although it might at the same time be proved that less personal civility had been used than would excuse something of an hesitation of obedience in other modes of life." By 17 & 18 Vict. c. 104, any master of, or any seaman or apprentice belonging to any British ship, who by wilful breach of duty, or by neglect of duty, or drunkenness, does any act tending to the immediate loss, destruction, or serious damage of the ship, or immediately to endanger the life or limb of any person belonging to the ship or on board, or who by wilful breach or neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful act proper and requisite to be done by him for preventing loss, destruction, damage, or danger of this description, is guilty of a misdemeanor (a). And any seaman lawfully engaged, or any apprentice to the sea service, who is guilty of desertion or neglect, or of refusing to join or to proceed to sea; of absence within twenty-four hours before sailing; of absence without leave; of quitting without leave before the ship is secured; of wilful disobedience; of continued wilful disobedience or neglect of duty, assault on officers, combining to disobey, wilful damage or embezzlement, or of acts of smuggling, causing loss to the owners, shall be liable to be punished summarily in the mode specially authorized in respect of each of such offences by the Act of Parliament (b). Upon the commission of any of these offences, an entry thereof is to be made in the official log-book, and signed by the master and the mate, or one of the crew; and the offender is to be furnished with a copy of such entry, or to have the same read to him, and may make such reply as he thinks fit; and the fact of such copy being so furnished, or of the entry being so read, and of his reply, shall likewise be entered and signed as aforesaid. And in any subsequent legal proceeding, the entries shall, if practicable, be produced, or proved, and in default thereof, the court by which the case is heard may, at its discretion, refuse to receive evidence of the offence (c). (a) Sect. 239. (b) Sect. 243; as to seamen's remedy when ship unseaworthy, see 34 & 35 Vict. c. 110, s. 7; and 39 & 40 Vict. c. 80. (c) Sect. 245; sect. 238. Chap. 5. CHAPTER V. OF BARRATRY. SECT. 1. Definition of Barratry, p. 137. 2. Acts of Barratry punishable by Statute, p. 138. 1. Definition of Barratry. [THE term Barratry, which is often used as well by foreign writers as those of our own nation, is generally understood in this and in most other countries, to denote a fraudulent act of the master or mariners committed to the prejudice of the owners of the ship (d). In France, it is often used in a more enlarged sense, and comprehends acts of mere ignorance or unskilfulness not accompanied with a fraudulent design]. To our definition of barratry, it is not essential that the act should be done by the master for his own benefit, or with the intent of injuring his owners. Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled (e); or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners (f); or if he disregard an embargo (g); or attempt a breach of a blockade (h); or be concerned in smuggling; or connive at smuggling by his mariners (i); or wilfully delay, or deviate, or run away with the ship (k), and sell her or her cargo, or part of it (1), or run the ship ashore without any justifiable cause (m), he is guilty of barratry. And where a master had general instructions to make the best purchases with despatch, it was considered that such instructions must mean legal purchases and legal despatch, and that going into an enemy's settlement to trade, although his cargo could be more speedily and cheaply completed there (the ship being seized and confiscated on account of it), was barratry (n). Nor (d) [Emerigon, tom. 1, 366.] See the cases, Marshall's Law of Insurance, 5th ed., by Shee, 409. (e) In Knight v. Cambridge, 1 Stra. 581; 2 Lord Raym. 1349. Stamma v. Brown, 2 Strange, 1174. Elton v. Brogden, ibid. 1264. Phyn v. Royal Exchange Assurance Company, 7 T. R. 505. (f) Moss v. Byrom, 6 T. R. 379. (g) Robinson v. Ewer, 1 T. R. 127. (h) Goldschmidt v. Whitmore, 3 Taunt. 508. Everth v. Hannam, 6 Taunt. 375. (i) Lockyer v. Offley, 1 T. R. 252. Pipon v. Cope, 1 Campb. 434. Powell v. Hyde, 5 E. & B. 607. (k) Vallejo v. Wheeler, Cowp. 143. Roscow v. Corson, 8 Taunt. 684. (1) Dixon v. Reed, 5 B. & A. 597. Toul- (m) Soares v. Thornton, 3 T. R. 227. |