MARINERS ANSWERABLE FOR FRAUD AND NEGLIGENCE. 297

But, if no fault, fraud, connivance, or carelessness shall be proved against the crew, and no reasonable presumption be shown against their innocence, then the loss should fall entirely upon the master and owner. Ibid.

Mariners are not answerable for losses, except so far as they may be personally affected with fraud, negligence, or inattention. But if portions of the cargo be embezzled by the fraud or negligence of a mariner, he will become chargeable for the value thereof; and the amount of such abstraction may be deducted from his wages. Gilp. 461, Edwards et al. v. Sherman.

But in the Test (3 Hagg. 315), where there was proof of a bottle of spirits being seen in a mariner's chest, it was held to be insufficient to sustain a charge of embezzlement, working a forfeiture of wages.

Though an act of embezzling is a reason for withholding a proportional part of the wages of a mariner, yet it does not necessarily work a forfeiture of the whole. The Malta, 2 Hagg. 172.

In a claim for wages, preferred by a steward, and opposed upon the ground of a deficiency in the linen, charged as embezzled or lost by his negligence, it was held, that proof of the loss was not sufficient; but that it must be shown, also, that the articles had been delivered into his custody, and that the deficiency was imputable to him. The Lady Campbell, 2 Hagg. 10.

In taking leave of this subject of embezzlement, it may be observed that the true security against it is to enjoin upon the mariner that part of his stipulated duty which requires him to be honest towards the owners. An observance of this injunction will subserve the double purpose of protecting the mariner from for

298

INCOMPETENCY GROUND OF FORFEITURE.

feiture and the merchant and master from felony or fraud.

Incompetency is another ground for forfeiture or other penalties.

All who ship on board of a ship, to serve in any capacity, ought to be reasonably well qualified for such service; either from natural aptitude for the duty, which they undertake to perform; or else by reason of previous nautical experience, acquired in sea service.

Incompetency and incapacity are both disqualifications; which may subject the party either to forfeiture or deduction of wages, and possibly to justifiable dismissal and discharge from ship and service. No discharge, however, would be justifiable, unless it were for adequate and manifest cause. Without such cause, a master's arbitrary discharge would be wrongful; and a tortious dismissal, instead of working a forfeiture, only remits the mariner, without performance of service, to his legal right to full wages; with, possibly, the statute penalty of two months' additional pay.

Good cause for discharge is legal ground for forfeit ure, and vice versa, inadequate ground for discharge furnishes no sufficient cause for forfeiture of wages.

Hutchinson v. Coombs (Ware, 65), is an exemplification of the insolence of petty power, in master and mate, unduly elated with its possession and their office, which is sometimes exercised injuriously to the interests of commerce and the merchant; and which is always so carefully guarded against by the marine law.

Several cases may be referred to, showing that "any cause, which will justify a master in discharging a seaman during his voyage, will deprive that seaman of his wages." Abb. Sh. 456-7.

FOR WHAT CAUSES MASTER MAY DISCHARGE.

299

In Hutchinson v. Coombs, Judge Ware (p. 70), says: "That a master has, by the marine law, a right to turn a mariner out of the vessel, is admitted." But this he cannot do for slight or venial offenses; and certainly not for a single offense, unless it be of a very aggravated character.

A master may discharge a seaman, when he is incorrigibly disobedient, and will not submit to duty; or is mutinous and rebellious, and persists in such conduct; or is guilty of gross dishonesty, as embezzlement or theft; or is an habitual drunkard, stirring up quarrels and broils, to the detriment or destruction of discipline among the crew; or, by his own fault, renders himself incapable of performing his duty. Vide 1 Pet. Adm. 175, Thorne v. White; ibid. 168, Relf et al. v. The Maria; 2 ibid. 262, Black v. The Ship Louisiana; 2 Ch. Rob. 216, The Exeter; and 4 Mason, 84, The Mentor.

A mariner, therefore, may incur the penalty of forfeiture of wages, by an habitual course of misconduct, neglect, fraud, or disobedience, or by a single act of gross dishonesty or aggravated infidelity. Ibid. supra, and 4 Mason, 541, Orne v. Townsend.

As compulsory desertion does not, so a wrongful dismissal will not work a forfeiture of wages. Indeed, in law, the two are equivalent acts, injuring none but the master who promotes and perpetrates them, and perhaps, through the master, the blameless owner, who is compelled to tolerate, if not justify, the ill advised action of his agent, the master.

So far from forfeiting his wages, a mariner, if driven to absconding, by a master's cruel and oppressive treatment, is entitled to be paid his full wages up to the prosperous termination of the voyage. Ware, 109, Sherwood v. McIntosh.

300

WRONGFUL DISCHARGE NOT TO BE JUSTIFIED.

So it is with a tortious discharge, which works no forfeiture, but when proved to be tortious, remits the sailor back to his legal rights and wages.

The right to remove, discharge, displace, degrade, disrate, or disgrace officers or seamen, is the offspring of necessity; first, to maintain proper discipline; and second, to secure efficient service on board the ship. The mere whim, will, caprice, or pretext of a master to exercise this right would find no favor, either with the admiralty or common law courts. To justify a resort to so delicate and dangerous a power, more than ordinary prudence and discretion are requisite to render its exercise safe and salutary.

It is imperative that, at sea, all hands shall work and serve skillfully, according to the grade for which each shall have severally shipped; whether that grade shall be mate, able seaman, ordinary seaman, light hand, or boy. In whatever situation any one stipulates to serve, his capacity should be equal to his station. All delinquency is noticeable, and likely to be logged to the discredit of the party. If all faithfully fulfill the several duties for which they engaged, then the law does not permit them to become the objects of a petty tyranny or victims of a spiteful caprice.

On the quarter-deck it is the business and right of a master to command; as it is also the duty of every mariner on board ship to obey all lawful and proper orders.

In the master's absence, or when below, the mate succeeds to the command and has full charge of the ship. This officer should be, in all respects, competent for his respectable position; and all hands should be capable and willing to perform their respective duties.

CAPACITY OF CREW THE SAFETY OF A SHIP. 301

A ship, well manned, presents the best ideal of a seagoing craft, sea-worthy and safe, suited to cross the waters and contend with all weathers. In vessels of this description, well-victualled and manned, and in other respects sea-worthy, there is seldom any occasion. for discharges, disratings, desertion, dismissal, or deductions; and, accordingly, none whatever to invoke the aid of the law to inflict the proper penalties.

If, on the other hand, officers or men are unequal to their station; incapable, incompetent, or indisposed to perform their several duties, then there springs up a crop of those uncomfortable marine offenses, so incompatible with quietude, content, and good order on shipboard; and during or at the end of the voyage, it becomes a necessity that the law should interpose and impose suitable penalties of forfeiture, damage, or deduction.

In these investigations, the courts hold the scales of justice and usually with a firm hand. If there be a voluntary abandonment, without cause or provocation, then the penalty of desertion occurs, and is pretty sure to be inflicted. If a master shall causelessly or capriciously degrade an officer, discharge a mariner, or cruelly dismiss and leave behind in a foreign port, any of the ship's company, his conduct will be inquired into, on his return home, and judicially rebuked and reprobated.

Caprice does not justify and will not sustain a master in the exercise of intolerance and practice o cruelty.

In the Duchess of Kent (1 W. Rob. 285), it was held, that a chief mate, suing for his wages in the Admiralty Court, was bound to show that he had discharged the duties of that situation with fidelity to his employers.