certificates of protection. Form of certifi cate. 28 May 1796. his citizenship, authenticated in the manner hereinafter directed, he shall enter the namə Collectors to issue of such seaman, (a) and shall deliver to him a certificate in the following form; that is to say: “I, A. B., collector of the district of D., do hereby certify that E. F., an American seaman, aged · years, or thereabouts, of the height of - feet inches, (describing the said seaman as particularly as may be), has this day produced to me proof in the manner directed in the act entitled 'An act for the relief and protection of American seamen ;' and pursuant to the said act, I do hereby certify that the said E. F. is a citizen of the United States of America: In witness whereof, I have hereunto set my hand and seal of office, this day of ." And it shall be the duty of the collector aforesaid to file and preserve the proofs of citizenship produced as aforesaid. And for each certificate delivered as aforesaid, the said collectors shall be entitled to receive from the seaman applying for the same, the sum of twenty-five cents. Ibid. 25. In case of detention, masters to make protest. And transmit copy to consul or minister. Or to the secretary of state. known to masters of vessels. 26. In order that full and speedy information may be obtained of the seizure or detention by any foreign power, of any seaman employed on board any ship or vessel of the United States, it shall and hereby is declared to be the duty of the master of every ship or vessel of the United States, any of the crew whereof shall have been impressed or detained by any foreign power, at the first port at which such ship or vessel shall arrive, if such impressment or detention happened on the high seas, or if the same happened within any foreign port, then in the port in which the same happened, immediately to make a protest stating the manner of such impressment or detention, by whom made, together with the name and place of residence of the person impressed or detained-distinguishing also, whether he was an American citizen, and if not, to what nation he belonged. And it shall be the duty of such master to transmit by post or otherwise, every such protest made in a foreign country to the nearest consul or agent, or to the minister of the United States resident in such country, if any such there be; preserving a duplicate of such protest, to be by him sent, immediately after his arrival within the United States, to the secretary of state, together with information to whom the original protest was transmitted. And in case such protest shall be made within the United States, or in any foreign country in which no consul, agent or minister of the United States resides, the same shall, as soon thereafter as practicable, be transmitted by such master, by post or otherwise, to the secretary of state. Ibid. 2 6. 27. That a copy of this law be transmitted by the secretary of state, to each of the Law to be made ministers and consuls of the United States resident in foreign countries; and by the secretary of the treasury to the several collectors of the districts of the United States, whose duty it is hereby declared to be, from time to time, to make known the provisions of this law to all masters of ships and vessels of the United States entering or clearing To make oath be at their several offices. And the master of every such ship or vessel shall, before he is fore entry. admitted to an entry by any such collector, be required to declare on oath whether any of the crew of the ship or vessel under his command have been impressed or detained in the course of his voyage, and how far he has complied with the directions of this act. Penalty for neg- And every such master as shall wilfully neglect or refuse to make the declarations herein required, or to perform the duties enjoined by this act, shall forfeit and pay the sum of one hundred dollars; and it is hereby declared to be the duty of every such collector to prosecute for any forfeiture that may be incurred under this act. lect. Ibid. 27. Quarterly account to secretary. 2 March 1799 % 2. 1 Stat. 731. 28. The collector of every port of entry in the United States shall send a list of the seamen registered under this act, once every three months to the secretary of state, together with an account of such impressments or detentions as shall appear by the protests of the masters to have taken place. 29. The secretary of state shall be and hereby is required to lay before congress, within ten days after the commencement of each ordinary session, an annual statement Abstracts to be containing an abstract of all the returns made to him by the collectors of the different ports, pursuant to the said act, and of the communications received by him from the agents employed by virtue of the same in foreign countries. laid before con gress. 20 July 1790 3 3. 1 Stat. 132. be made of unSeaworthiness. III. COMPLAINTS OF SEAMEN. 30. If the mate or first officer under the master, and a majority of the crew of any ship or vessel, bound on a voyage to any foreign port, shall, after the voyage is begun, Complaint may (and before the ship or vessel shall have left the land) discover that the said ship or vessel is too leaky, or is otherwise unfit in her crew, body, tackle, apparel, furniture, provisions or stores, to proceed on the intended voyage, and shall require such unfitness to be inquired into, (6) the master or commander shall, upon the request of the said mate (or other officer) and such majority, forthwith proceed to or stop at the nearest or (a) If an American seaman be discharged in a foreign port. it is no objection to the recovery of the three months' wages given by the act of 1803. that his name is omitted as an American seaman in the list of the crew certified from the collector's office under this act, if he be named as an American citizen on the master's list of the crew. Orne v. Townsend, 4 Mas. 541. ordered. port. most convenient port or place, where such inquiry can be made, and shall there apply 27 July 1790. to the judge of the district court, if he shall there reside, or if not, to some justice of Proceedings the peace of the city, town or place, taking with him two or more of the said crew, who thereon. shall have made such request; and thereupon such judge or justice is hereby horized Survey to be and required to issue his precept directed to three persons in the neighborhood, the most skilful in maritime affairs that can be procured, requiring them to repair on board such ship or vessel, and to examine the same in respect to the defects and insufficiencies complained of; and to make report to him the said judge or justice, in writing under their Surveyor to rehands, or the hands of two of them, whether in any, or in what respect the said ship or vessel is unfit to proceed on the intended voyage, and what addition of men, provisions or stores, or what repairs or alterations in the body, tackle or apparel will be necessary. And upon such report the said judge or justice shall adjudge and determine, and shall Judgment. indorse on the said report his judgment, whether the said ship or vessel is fit to proceed on the intended voyage; and if not, whether such repairs can be made or deficiencies supplied where the ship or vessel then lies, or whether it be necessary for the said ship or vessel to return to the port from whence she first sailed, to be there refitted; and the master and crew shall in all things conform to the said judgment. And the master or Costs. commander shall, in the first instance, pay all the costs of such view, report and judgment, to be taxed and allowed on a fair copy thereof, certified by the said judge or justice;(a) but if the complaint of the said crew shall appear, upon the said report and When to be de judgment, to have been without foundation, then the said master, or the owner or consignee of such ship or vessel, shall deduct the amount thereof, and of reasonable damages for the detention (to be ascertained by the said judge or justice) out of the wages growing due to the complaining seamen or mariners. And if, after such judgment, such ship Penalty for reor vessel is fit to proceed on her intended voyage, or after procuring such men, provi- fusing to proceed sions, stores, repairs or alterations as may be directed, the said seamen or mariners, or either of them, shall refuse to proceed on the voyage, it shall and may be lawful for any justice of the peace to commit, by warrant under his hand and seal, every such seaman or mariner (who shall so refuse) to the common jail of the county, there to remain without bail or mainprize, until he shall have paid double the sum advanced to him at the time of subscribing the contract for the voyage, together with such reasonable costs as shall be allowed by the said justice, and inserted in the said warrant, and the surety or sureties of such seaman or mariner (in case he or they shall have given any) shall remain liable for such payment; nor shall any such seaman or mariner be discharged upon any writ of habeas corpus or otherwise, until such sum be paid by him or them, or his or their surety or sureties, for want of any form of commitment, or other previous proceedings: Provided, That sufficient matter shall be made to appear, upon the return of such habeas corpus, and an examination then to be had, to detain him for the causes herein before assigned. ducted from wages. on the voyage. 5 Stat. 396, be made to con 31. If the first officer, or any officer, (b) and a majority of the crew of any vessel, shall 20 July 1810 12 make complaint in writing that she is in an unsuitable condition to go to sea, because she is leaky, or insufficiently supplied with sails, rigging, anchors or any other equipment, Complaints may or that the crew is insufficient to man her, or that her provisions, stores and supplies are suls. not, or have not been, during the voyage, sufficient and wholesome; thereupon, in any of these or like cases, the consul or commercial agent who may discharge any duties of a consul shall appoint two disinterested, competent, practical men, acquainted with mari- Survey to be time affairs, to examine into the causes of complaint, who shall in their report state what defects and deficiencies, if any, they find to be well founded, as well as what, in their judgment, ought to be done to put the vessel in order for the continuance of her voyage.(c) ordered. Ibid. 13. 32. The inspectors so appointed shall have full power to examine the vessel and whatever is aboard of her, as far as is pertinent to their inquiry, and also to hear and receive Duties of inspect any other proofs which the ends of justice may require; and if, upon a view of the whole ors. proceedings, the consul, or other commercial agent, shall be satisfied therewith, he may Consul to apapprove the whole or any part of the report, and shall certify such approval; and if he prove or dissent. dissents, shall also certify his reasons for so dissenting. Ibid. 14. 33. The inspectors in their report shall also state whether, in their opinion, the vessel was sent to sea unsuitably provided in any important or essential particular, by neglect When crew to be or design, or through mistake or accident; and in case it was by neglect or design, and discharged. the consul or other commercial agent approves of such finding, he shall discharge such of the crew as require it, each of whom shall be entitled to three months' pay in addition (a) Where the crew insist on a survey of the vessel, alleging that she is unseaworthy, if there be reasonable cause for a survey, the owners cannot charge the expeuse to the scamen. The William Harris, Ware, 367. If they have reason to believe and do believe the vessel to be unseaworthy before the voyage is begun, they may lawfully refuse to go to sea in her. United States v. (e) Consuls have no authority to order the sale of a ship in a foreign port, either on complaint of the crew or otherwise. 6 Opin. 617. 20 July 1840. Wages. Ibid. 15. Master to pay charges, &c. Ibid 16. Crew to have liberty to complain, &c. Ibid. 18. lect of consul to perform such duties. to his wages to the time of discharge; but if, in the opinion of the inspectors, the defects or deficiencies found to exist have been the result of mistake or accident, and could not, in the exercise of ordinary care, have been known and provided against before the sailing of the vessel, and the master shall, in a reasonable time, remove or remedy the causes of complaint, then the crew shall remain and discharge their duty; otherwise they shall, upon their request, be discharged, and receive each one month's wages in addition to the pay up to the time of discharge. 34. The master shall pay all such reasonable charges in the premises as shall be officially certified to him under the hand of the consul or other commercial agent; but, in case the inspectors report that the complaint is without any good and sufficient cause, the master may retain from the wages of the complainants, in proportion to the pay of each, the amount of such charges, with such reasonable damages for detention on that account, as the consul or other commercial agent directing the inquiry may officially certify. 35. The crew of any vessel shall have the fullest liberty to lay their complaints (a) before the consul or commercial agent in any foreign port, and shall in no respect be restrained or hindered therein by the master or any officer, unless some sufficient and valid objection exist against their landing; (b) in which case, if any mariner desire to see the consul or commercial agent, it shall be the duty of the master to acquaint him with it forthwith, stating the reason why the mariner is not permitted to land, and that he is desired to come on board; whereupon it shall be the duty of such consul or commer cial agent to repair on board and inquire into the causes of the complaint, and to proceed thereon as this act directs. 36. If any consul or commercial agent shall neglect or omit to perform, seasonably, Penalty for neg. the duties hereby imposed upon him, or shall be guilty of any malversation or abuse of power, he shall be liable to any injured person for all damage occasioned thereby; and for all malversation and corrupt conduct in office, he shall be liable to indictment, and, on conviction by any court of competent jurisdiction, shall be fined not less than one nor more than ten thousand dollars, and be imprisoned not less than one nor more than five years. 29 July 1850 3 6. 9 Stat. 441. 37. That the twelfth clause or section of the act entitled "An act in addition to the several acts regulating the shipment and discharge of seamen, and the duties of consuls," By whom comapproved July 20th 1840, be so amended, as that all complaints in writing to the conplaint of unseaworthiness to be suls or commercial agents as therein provided, that a vessel is unseaworthy, shall be Bigued. signed by the first, or the second and third officers, and a majority of the crew, before the consul or commercial agent shall be authorized to notice such complaint, or proceed to appoint inspectors as therein provided. 20 July 1790 5. 1 Stat. 133. Forfeiture of wages for absence without leave. To be noted on the log-book. IV. SEAMEN'S WAGES. 38. If any seaman or mariner, who shall have subscribed such contract as is hereinbefore described, shall absent himself from on board the ship or vessel in which he shall so have shipped, without leave of the master or officer commanding on board; (c) and the mate or other officer having charge of the log-book, shall make an entry therein (d) of the name of such seaman or mariner, on the day on which he shall so absent himself, (e) and if such seaman or mariner shall return to his duty (g) within forty-eight hours, such seaman or mariner shall forfeit three days' pay for every day which he shall (a) This applies only to such causes of complaint as are specified in the act, to wit: that the mariner is detained contrary to his agreement, or that the vessel is unseaworthy, &c.; and not to affrays or quarrels between the officers and crew. Jordan v. Williams, 1 Curt. C. C. 70. (b) This act gives a seaman the right, not only to see the consul, but to see him on shore, away from the restraints of the ship, unless some valid objection exists to his landing. Knowlton v. Ross, 2 Law. Rep. 16. The liberty, however. is to be exercised under the fair and reasonable discretion of the master, as to the time and mode of landing. Jordan v. Williams, 1 Curt. C. C. 70. (e) Where the departure of the seamen from a vessel, before the termination of the voyage, is involuntary on their part, or with the apparent as-ent of the master, they do not forfeit their wages. Magee v. The Moss, Gilp. 219. If a seaman has permission from the second mate to go on shore, and acts in confidence upon such permission, he is not absent without leave from the commanding officer, although the chief mate or master is, at the time, on board. Such permission to go on shore may be implied from the acquiescence or silence of the officers in command, or of the master on shore The Union, 1 Bl. & How. 546. If the seamen leave the vessel, against orders, to go before the consul and complain of their treatment, it is not desertion. Hart v. The Otis, Crabbe, 52. A stipulation in the shipping articles not to sue for wages until the vessel is unladen, is not an extension of the voyage; and if a seaman leaves her, without permission. after she is moored, but before her unlivery, that is not a desertion which works a forfeiture of wages. Granon v. Hartshorne, 1 Bl. & How. 454. There can be no desertion after the voyage is ended. The Martha, Ibid. 151. (d) To subject a seaman to the forfeiture of his wages for deser tion, the prescribed entry in the log-book is indispensable. Knagg v. Goldsmith, Gilp 207. Magee v. The Moss, Ibid. 219. Hart r The Otis, Crabbe, 52. There is no forfeiture unless the act of desertion is brought within the terms of the statute, and proved as therein directed. The Elizabeth Frith, 1 Bl. & How. 201. Gifford v. Kollock, 9 Law Rep. 22. To prove such absence a proper entry in the log-book is necessary but not conclusive. The Rovena. Ware, 309. Malone v. Bell, 1 Pet. Adm. 140. Jones r. The Phoenix. Ibid. 201. Such entry must state the fact and date of absence, the name of the seaman, and his having gone without leave. Wood v. The Nimrod. Gilp. 83. Snell v. The Independence, Ibid. 140. The Cadmus v. Matthews, 2 Paine, 229. The Rovens, Ware, 09. It must show that the absence was without leave, in order that an innocent departure shall not afterwards be turned into a desertion. Ulary r. The Washington, Crabbe, 204. See The Cadmus, 1 Bl. & How. 139. Herron v. The Peggy, Bee, 57. (e) If the entry be not made on the very day of the absence, there can be no forfeiture inflicted. Cloutman v. Tunison, 1 Suma. 373. The Phoebe v. Dignum, 1 W. C. C. 48. The Cadmus . Matthews, 2 Paine, 229. (9) The return, in order to save a forfeiture of wages, must have been unconditional, and a return to duty generally. The Cadmus v. Matthews, 2 Paine, 229. If seamen, absent from their ship, without leave. attempt to return to her by night, not saying who they are or what they want. it is not such a return as will restore to them their right to wages. Ulary v. The Washington, Crabbe, 204. But if they are received on board again, the forfeiture of their wages is waived. Whitton r. The Commerce, 1 Pet. Adm. 160. The Elizabeth v. Rickers, 2 Paine, 291. Hart v. The Otis, Crabbe, 52. See Malone v. Bell, 1 Pet. Adm. 140. so absent himself, to be deducted out of his wages; but if any seaman or mariner shall 20 July 1790. absent himself for more than forty-eight hours at one time, (a) he shall forfeit all the wages due to him, (b) and all his goods and chattels which were on board the said ship or vessel, or in any store where they may have been lodged at the time of his desertion, to the use of the owners of the ship or vessel; and moreover shall be liable to pay to him or Damages. them all damages which he or they may sustain by being obliged to hire other seamen or mariners in his or their place, and such damages shall be recovered with costs, in any court or before any justice or justices having jurisdiction of the recovery of debts to the value of ten dollars or upwards. paid at each port. mandable at last port of delivery. recovery of wages 39. Every seaman or mariner (c) shall be entitled to demand and receive from the Ibid. 26. master or commander of the ship or vessel to which they belong, one-third part of the One-third of wages which shall be due to him at every port where such ship or vessel shall unlade wages due to be and deliver her cargo before the voyage be ended, unless the contrary be expressly stipulated in the contract. (d) And as soon as the voyage is ended, and the cargo or ballast When wages de be fully discharged at the last port of delivery, (e) every seaman or mariner shall be entitled to the wages which shall be then due according to his contract; and if such wages shall not be paid within ten days (g) after such discharge, or if any dispute shall arise between the master and seamen or mariners touching the said wages, it shall be lawful for the judge of the district (h) where the said ship or vessel shall be, or in case Proceedings for his residence be more than three miles from the place, or of his absence from the place in the admiralty. of his residence, then, for any judge or justice of the peace to summon the master of such ship or vessel to appear before him, to show cause why process should not issue against such ship or vessel, her tackle, furniture and apparel,(i) according to the course of admiralty courts, (k) to answer for the said wages. And if the master shall neglect to appear, or appearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, in such case the judge or justice shall certify to the clerk of the court of the district, that there is sufficient cause of complaint whereon to found admiralty process ;(7) and thereupon the clerk Process to issue. of such court shall issue process against the said ship or vessel, and the suit shall be proceeded on in the said court, and final judgment be given according to the course of admiralty courts in such cases used. And in such suit all the seamen or mariners (having All seamen to join as complain cause of complaint of the like kind against the same ship or vessel) shall be joined as complainants; (m) and it shall be incumbent on the master or commander to produce the contract and log-book, if required, to ascertain any matters in dispute, otherwise the Log-book, &c., to be produced. complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on the master or commander.(n) But nothing herein contained shall pre- Remedy at comvent any seaman or mariner from having or maintaining any action at common law for mon law. the recovery of his wages; or from immediate process out of any court having admiralty jurisdiction, wherever any ship or vessel may be found, in case she shall have left the (a) The act applies to all cases where the seaman does not return to his ship within forty-eight hours, although he may have been prevented by the sailing of the ship. For the master is not bound to wait for him, but he must rejoin within that period, suo periculo. Coffin r. Jenkins, 3 Story, 108. The Union v. Jansen, 2 Paine, 277. The act makes an absence of forty-eight hours without leave, conclusive evidence of desertion. The Rovena, Ware, 309. Cloutman v. Tunison, 1 Sumn. 373. (b) If the seamen have suffered imprisonment for desertion under 27, (infra, 40) they do not also forfeit their wages under this clause. Bray v. The Atalanta, Bee, 48. But the cost of commitment and of their support in jail is to be deducted from them. Brower v. The Maiden, Gilp. 294. (c) A female employed as cook on board of a vessel is a mariner, and entitled to sue in the admiralty for her wages. The Schooner Brandywine, 1 Newb. 5. And so is a seaman who is also part owner. Foster r. Steamboat Pilot No. 2, Ibid. 215. (d) See Johnson v. Sims, 1 Pet. Adm. 215, for the construction of an agreement in the shipping articles. that no wages should be paid to the seamen, until the return of the vessel to the port of outfit. A stipulation in the articles that the seamen shall not, in any case, demand their wages until the expiration of a certain time, is void, in case the service is completed, or the seamen are discharged before the expiration of that time. The Cypress, 1 Bl. & How. 83. (e) A seamen who hires for a trading voyage for a specified time, cannot sue for wages until the expiration of the time, unless there be proof of his actual or constructive release. The Warrington, 1 Bl. & How. 335. But where a vessel has fully discharged her cargo in her port of delivery, and leaves that port, on other voyages, without payment of wages, the seamen, though accompanying her, are entitled to an action for such wages, immediately. So, if she return to the same port of delivery, a seaman may institute an action at once for wages earned on the previous voyage, though the vessel be not discharged of the second cargo. The Edward, Ibid. 286. And see The Eagle. Olcott, 232. (g) It seems, that an agreement in shipping articles that seamen shall not sue for their wages, until three months after their services are ended, will be held void as against the seamen. The Cypress, 1 Bl. & How. 83. This section has reference to actions in rem only, and not to actions in personam. The right of a sea ants. man to sue in personam for his wages. is perfect as soon as the (i) The seamen have a lien by the maritime law, on the freight as well as the vessel, for their wages, which is not taken away by the act of congress. Poland v. The Freight and Cargo of Brig Spartan, Ware, 134. And see Bruce v. The Steamboat America, I Newb. 195. (k) Contracts of seamen for maritime service are, in effect, maritime contracts, governed by the maritime law, which prescribes the rights and obligations of the parties differently from the common law. Bains v. The James and Catharine, Bald. 544. The federal courts have a jurisdiction of actions for wages on board foreign vessels. The Brig Napoleon, Olcott, 208. But the courts of a foreign power will take cognisance of the claims of seamen for wages. only in cases of flagrant wrong or suffering on their part. Graham v. Hoskins. Ibid. 224. (1) The court will not look beyond the certificate of the officer for the authority of the clerk to issue process; but such certificate must show on its face the officer's authority to act. The Steamboat London, 1 Newb. 6. (m) This clause, if not imperative upon all the seamen to join in a prosecution already begun by a shipmate, for the wages of a common voyage, at least removes all occasion for separate actions, and all equity to costs, where such separate actions are instituted. Reed v. Hussey, 1 Bl. & How. 527. It is of positive obligation, where the seamen commence a suit at the same time, in the same court, by a proceeding in rem for their wages. Oliver v. Alexander, 6 Pet. 147. The matter in dispute is. nevertheless, several with each libellant, and the claimant can appeal only in regard to a separate demand by a seaman, exceeding the sum of $2000. Ibid. 143. And see Stratton v. Jarvis, 8 Ibid. 4. It is not imperative in actions in personam. Collins v. Hathaway. Olcott. 176. (n) See The Osceola, Olcott, 450, as to what is a sufficient require ment to produce the shipping articles, and of the effect of a refusal. 20 July 1790. port of delivery where her voyage ended, before payment of the wages, or in case she shall be about to proceed to sea before the end of the ten days next after the delivery of her cargo or ballast.(a) 20 July 1790 7. 1 Stat. 134. Deserters to be impsoned, &c. 4 Stat. 359. Deserters from foreign vessels to V. DESERTION. 40. If any seaman or mariner, who shall have signed a contract to perform a voyage, (b) shall, at any port or place, desert, or shall absent himself from such ship or vessel, without leave (c) of the master, or officer commanding in the absence of the master, it shall be lawful for any justice of peace (d) within the United States (upon the complaint of the master) to issue his warrant to apprehend such deserter, and bring him before such justice; and if it shall then appear by due proof, that he has signed a contract within the intent and meaning of this act, (e) and that the voyage agreed for is not finished, altered or the contract otherwise dissolved, and that such seaman or mariner has deserted the ship or vessel, or absented himself without leave, the said justice shall commit him to the house of correction or common jail (g) of the city, town or place, there to remain until the said ship or vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, (h) and then to be delivered to the said master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman or mariner.(i) 2 March 1829 81. 41. On application of a consul or vice consul of any foreign government, having a treaty with the United States, stipulating for the restoration of seamen deserting,(k) made in writing, stating that the person therein named has deserted from a vessel of any be apprehended. such government while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll or other official document, that the person named belonged, at the time of desertion, to the crew of said vessel, it shall be the duty of any court, judge, justice or other magistrate, (1) having competent power, to issue warrants And delivered up. to cause the said person to be arrested for examination. And if, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the said consul or vice consul, to be sent back to the dominions of any such government; or, on the request, and at the expense, of the said consul or vice consul, shall be detained until the consul or vice consul finds an opportunity to send him back to the dominions of any such government: Provided nevertheless, That no person shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause: And provided May be previous further, That if any such deserter shall be found to have committed any crime or fences committed offence, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognisable, shall have pronounced its sentence, and such sentence shall have been carried into effect. ly tried for of here. 20 July 1840 11. 5 Stat. 395. 42. It shall be the duty of consuls and commercial agents to reclaim deserters and discountenance insubordination by every means within their power; and where the Consuls to re- local authorities can be usefully employed for that purpose, to lend their aid and use foreign ports, &c. their exertions to that end in the most effectual manner.(m) claim deserters in be discharged. Ibid. 17. 43. In all cases where deserters are apprehended, the consul or commercial agent shall When they may inquire into the facts; and, if satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be discharged, and receive, in addition to his wages to the time of the discharge, three months' pay; and the officer discharging him shall enter upon the crew-list and shipping articles the cause of discharge, and the particulars in which the cruelty or unusual treatment consisted, and subscribe his name thereto officially. 18 Aug. 1856 25. 11 Stat. 62. 44. Whenever any seaman or mariner of any vessel of the United States shall desert such vessel, the master or commander of such vessel shall note the fact and date of such desertion on the list of the crew, and the same shall be officially authenticated at the (a) In order that admiralty process may issue within ten days after the arrival of the vessel, it is sufficient to show a reasonable ground of belief that the vessel is about to proceed to sea within the ten days. The Trial, 1 Bl. & How. 94. And see The Cypress, Ibid. 83. The Eagle, Olcott, 234. (b) This act does not apply to foreign seamen on board of foreign ships. Ex parte D'Olivera, 1 Gall. 474. (c) If a sick seaman be sent from a ship to a hospital in a foreign port, and the ship leave the port without his rejoining her, be is not to be regarded as absent without leave, so as to stop the running of his wages. Nevitt v. Clarke, Olcott, 316. (d) Justices of the peace alone have power to try and commit deserters under this act; the commissioners of the United States courts can only arrest and commit for trial. Ex parte Crandall, 2 Cal. 144. (e) This proceeding being expressly confined to contracts within the intent and meaning of this act, refers to the 1st section which describes the contract, and therefore can only apply to cases where the seamen were shipped in a port of the United States. Commonwealth v. Holloway, 1 S. & R. 396. (g) The power hereby given to arrest and confine deserters by warrant from a magistrate, does not supersede the authority given to the master under the general maritime law. Turner's Case, Ware, 83. s. c., 2 Wh. Cr. Cas. 615. (k) If a mariner suffers imprisonment under this section, he does not also forfeit his wages uuder 5. Bray v. The Atalanta, Bee, 48. Brower v. The Maiden, Gilp. 294. (i) When a seaman is detained in jail under this section, the cost of his commitment and support there, and also the charge for a person employed in his place, are to be deducted from his wages. Pierce v. Patton, Gilp. 435. (4) This statute applies only to the seamen of governments with which a treaty exists to that effect. There is no express provision to that effect in existing treaties between the United States and Denmark. 6 Opin. 148. (1) And the commissioners appointed by the circuit courts, by act 24 February 1855. 10 Stat. 614. (m) The consul must judge and determine. whether any particular case is one in which the local authorities may be usefully employed. When employed, they are to act in such manner, and by such means as they ordinarily employ; and the most common and obvious means are the use of a place of confinement, under the control of the local government. Jordan v. Williams, 1 Curt. C. C. 80-1. |