are violated by the master, if the vessel be unseaworthy, or the seaman subjected to cruel treatment, he may be discharged by the consul or commercial agent, and his three months' wages allowed him, as if it were a voluntary discharge by the master. And this even if the sailor has deserted the ship by reason of such cruelty.3 Consuls may also send home our seamen in other ships, which are bound to take them, for a compensation not exceeding ten dollars for each man, and the sailor so sent is bound to work and obey as if he had originally shipped in that vessel. If a master discharges a seaman against his consent and without good cause,

that, by the marine law, a master could, in certain cases, turn a mariner out of the vessel, said: "But this he cannot do for slight or venial offences, and certainly not for a single offence, unless of a very aggravated character. The cases stated, in which a master is permitted to discharge a seaman are, when he is incorrigibly disobedient, and will not submit to do his duty, Thorne v. White, 1 Pet. Adm. 168, 175; or if he is mutinous and rebellious, and persists in such conduct, Relf v. The Maria, 1 Pet. Adm. 186; or guilty of gross dishonesty, as embezzlement or theft, Black v. The Louisiana, 2 Pet. Adm. 268; or if he is an habitual drunkard, a stirrer up of quarrels and broils, to the destruction of the discipline of the crew; or by his own fault renders himself incapable of performing his duty." In Nieto v. Clark, U. S. D. C. Mass. Boston Courier, March 23, 1858, it was held that the master was justified in discharging a seaman who entered the state-room of a lady passenger, and conducted himself there in a grossly indecent manner. This case was, affirmed, 1 Clifford, C. C. 145. See also Orne v. Townsend, 4 Mason, 541, 548; Whitton v. The Brig Commerce, 1 Pet. Adm. 160, 164; Atkyns v. Burrows, id. 244, 248. The Nimrod, Ware, 9. If the seaman is taken from a vessel in a foreign port and sent home for a crime, his contract with the vessel is at an end, and he cannot recover any wages subsequently accruing. Smith v. Treat, Daveis, 266. So if the seaman is sent home by the consul. Tingle v. Tucker, Abbott, Adm. 519.

1 Act of 1840, c. 48, § 9, 5 U. S. Stats. at Large, 395.

2 Act of 1840, c. 48, § 14.

Act of 1840, c. 48, § 17.

seamen.

Act of 1803, c. 9, § 4, 2 U. S. Stats. at Large, 204. This act provides a penalty of one hundred dollars, in case any master refuses to bring home destitute In Matthews v. Offley, 3 Sumner, 115, it was held that an action for this penalty must be brought in the name of the government. It was also held in this case, that if the seaman deserted from an American ship, and she was in port at the time he became destitute, the consul might require another American vessel to bring him home. It was also held that foreigners, while employed as seamen on American ships, are entitled to the privileges of the act; and that the certificate of the consul is primâ facie evidence of all the facts stated in the enacting clause of the section, which are necessary to bring the case within the penalty.

in a foreign port, he is liable to a fine of five hundred dollars or six months' imprisonment. And the seaman may recover, besides, full indemnity for his time lost or expenses incurred by reason of such discharge.1

SECTION VIII.

OF THE DISOBEDIENCE OF SEAMEN.

Disobedience or misconduct of a sailor is, of necessity, punishable with great severity, because discipline must be preserved, as without it the ship would always be in great peril, and no voyage could be successfully conducted.2 But incompetency to perform

1 See ante, section on Wages.

2 Thorne v. White, 1 Pet. Adm. 168; Gardner v. Bibbins, Blatchf. & H. Adm. 356; The Elizabeth Frith, id. 195, 208; The United States v. Wickham, 1 Wash. C. C. 316; Jordan v. Williams, 1 Curtis, C. C. 69; United States v. Smith, 3 Wash. C. C. 525; Michelson v. Denison, 3 Day, 294; United States v. Freeman, 4 Mason, 505, 512; Carleton v. Davis, Daveis, 221; Turner's case, Ware, 83; United States v. Peterson, 1 Woodb. & M. 305; Fuller v. Colby, 3 id. 1; United States v. Borden, 1 Sprague, 374. See also cases infra. In Sheridan v. Furbur, Blatchf. & H. Adm. 423, it was held that general orders from one officer would not excuse disobedience to the specific orders of another.

A hammer is an improper weapon to strike a seaman with, nor is it any excuse that the weapon was casually in the hands of the captain, and that he used it in a moment of excitement, and under circumstances which would have justified some punishment. Saunders v. Buckup, Blatchf. & H. Adm. 264. So a sword is an improper weapon to strike a seaman with, but a bucket of water thrown over a person to make him move quicker has been held to be no severe punishment, especially in the month of August. Schelter v. York, Crabbe, 449. And it has been held in the same court, that a blow with a dirty frying-pan, or wiping a dirty knife on the face of the person whose duty it was to keep these articles clean, is not a very aggravated or cruel assault. Forbes v. Parsons, Crabbe, 283. See also Benton v. Whitney, id. 417. A belaying-pin is an improper instrument for punishment. Carleton v. Davis, Daveis, 221; Shorey v. Rennell, 1 Sprague, 407; Ringold v. Crocker, Abbott, Adm. 344; so is a log of firewood. Brown v. The Independence, Crabbe, 54. But if a person is indicted for committing an assault with a dangerous weapon, it is a question for the jury, and not for the court, whether the instrument used was a dangerous weapon. United States v. Small, 2 Curtis, C. C. 241. In Jarvis v. Sherwood, Bee, Adm. 248, it is held that a cutlass should only be used when a mutiny exists or is threatened, but moderate correction with the fist is justifiable. This case also decides that a captain who

the duties of the station for which an officer or seaman has shipped, is no justification for the infliction of punishment.1 Formerly there was no specific limit to the right of punishment. It might be administered by the master in any form, and in any measure, he always being answerable for his excess or cruelty, both criminally 2 and in damages to the seaman.3 But if the mate, in obedience to the commands of the master, assists him in punishing a seaman, he will not be answerable as a joint trespasser, unless the punishencourages disorderly conduct in his men, is the less excusable for inflicting unusual punishment for conduct arising in some measure out of that. It is no justification for an assault that the person assaulted when told by the captain not to swear, retorted that he had heard him swear, and repeated the language. Morris v. Cornell, 1 Sprague, 62. In Roberts v. Eldridge, 1 Sprague, 54, it was held that the master of a vessel may use a deadly weapon when necessary, in order to suppress a mutiny, and that a mutineer although injured thereby can maintain no action for damages. S. P. United States v. Colby, 1 Sprague, 119; United States v. Lunt, 1 Sprague, 311.

1

Payne v. Allen, 1 Sprague, 304.

Acts of 1825, ch. 65, § 22, 4 U. S. Stats. at Large, 122; Act of 1835, ch. 40, § 3, 4 U. S. Stats. at Large, 776. For decisions under the former of these acts, see United States v. Grush, 5 Mason, 290; United States v. Hunt, 2 Story, 120. In United States v. Cutler, 1 Curtis, C. C. 501, the master was indicted under the Act of 1835, for beating one of his crew with malice and without justifiable cause. Curtis, J., said: "The government must prove: 1, the beating; 2, the want of justifiable cause; 3, malice." See also United States v. Alden, 1 Sprague, 95; United States v. Winn, 3 Sumner, 209; United States v. Small, 2 Curtis, C. C. 241. Although flogging is now abolished, yet it is not a cruel and unusual punishment, within the meaning of the third section of the Act of 1835. United States v. Collins, 2 Curtis, C. C. 194.

In Forbes v. Parsons, Crabbe, 282, it was held that a seaman is, in general, entitled to recover damages for an assault from the master, first, where personal violence is inflicted, not excessively, but wantonly, and without provocation or cause; second, where there was provocation and cause, but the punishment was cruel, or excessive; third, where the punishment is inflicted with a dangerous weapon. See also The Agincourt, 1 Hagg. Adm. 271; Watson v. Christie, 2 B. & P. 224; Shorey v. Rennell, 1 Sprague, 407; Brown v. Howard, 14 Johns. 119; Sampson v. Smith, 15 Mass. 365; Rice v. The Polly & Kitty, 2 Pet. Adm. 420; Roberts v. Dallas, Bee, Adm. 239; Jarvis v. Sherwood, Bee, 248; Jenks v. Lewis, Ware, 51, 3 Mason, 503; Elwell v. Martin, Ware, 53; Butler v. McLellan, id. 219; Hutson v. Jordan, id. 385; Polydore v. Prince, id. 402; Bangs v. Little, id. 506; Pettingill v. Dinsmore, Daveis, 208; Thomas v. Lane, 2 Sumner, 1; Morris v. Cornell, 1 Sprague, 62. Whitney v. Eager, Crabbe, 422; Sheridan v. Furbur, Blatchf. & H. Adm. 423; Knowlton v. Boss, 1 Sprague, 163; Jones v. Sears, 2 Sprague, 43.

Seamen

ment is obviously and grossly excessive and unjust.1 have a right to the protection of the master against illegal violence from the other officers of the vessel, and he is bound to hear their complaints and prevent a repetition of their wrongs. If, therefore, seamen are illegally treated by the mate, and the captain refuses to hear their complaints, and the ship is in port and safely moored, the seamen are entitled to their discharge. It has also been held that no one but the highest officer on board can inflict punishment for a past offence for the purpose of reformation or example. Now, however, flogging is abolished and prohibited by law. This has been declared, by very high authority, to include the use of the cat, and every similar form of punishment; but not necessarily to include all corporal punishment, such as a blow with the hand, or a stick, or rope; and in a

6

1 Butler v. McLellan, Ware, 219; Sheridan v. Furbur, Blatchf. & H. Adm.

5 Act of 1850, c. 80, 9 U. S. Stats. at Large, 515, contains the following clause : 66 Provided, That flogging in the navy, and on board vessels of commerce, be and the same is hereby abolished, from and after the passage of this act." Mr. Justice Curtis, in a charge to the grand jury, delivered at Providence, R. I., November 15, 1853, instructed them that the words "vessels of commerce," in the above statute, included vessels engaged in the whale and other fisheries. 1 Curtis, C. C. 509. So held also in United States v. Cutler, 1 Curtis, C. C. 501; Payne v. Allen, 1 Sprague, 304. The Act of 1850 is not a penal law, and no indictment can be framed upon it. But it has an important bearing upon the Act of 1835, in regard to the question of justifiable cause and malice. United States v. Cutler, supra. In a case decided by Judge Sprague, in the District Court of the United States for the Massachusetts District, February, 1857, Captain Lendholm of the ship Josephine was charged with maltreating his crew of Las

cars.

The court held that although the captain was apparently honest in the belief that the men had conspired to poison him, yet he had no right to flog them.

Charge to the Grand Jury, 1 Curtis, C. C. 509. In the United States v. Cutler, 1 Curtis, C. C. 501, the master of a vessel was indicted under the Act of 1835, for beating one of his crew maliciously and without justifiable cause. The master had punished the seaman by inflicting six blows upon him with a piece of ratlin stuff. Mr. Justice Curtis said: "If the punishment inflicted was the punishment of flogging, within the meaning of the Act of 1850, there could be no justifiable cause, the authority of the master to punish by flogging being taken away. And it is for the jury to find whether what was done amounted to the punishment of flogging abolished by that act. In order to decide this question, it

case tried in Boston in the Common Pleas, February, 1854, it was held, on what seem to us to be good reasons, that the statute was intended to apply to deliberate flogging by way of punishment, and not to a blow or blows of any kind inflicted. upon an emergency to produce immediate obedience.1 Generally the only punishments which can now be resorted to, to enforce obedience and good conduct, are forfeiture of wages,2 irons, confinement on board, imprisonment on shore,5 hard lais necessary for the jury to attend to what is the punishment of flogging referred to in that law; and my instruction is, that it is corporal punishment by-stripes inflicted with a cat, or any punishment which, in substance and effect, amounts thereto. The particular form of the instrument is not material; what you must look to is the effect produced. If the man was punished by stripes inflicted with a rope, and this, in substance and effect, is the same kind of punishment as the punishment of flogging with a cat, then it is prohibited by this law. The degree of severity of the punishment is not material. It is the kind, and not the degree, of punishment which is important. It may be that one blow with a cat would inflict stripes more painful to be borne, than one blow with a piece of ratlin stuff. But this is not material, if both are corporal punishment by stripes, and both are in substance the same kind of punishment."

66

1 And Sprague, J., in the case of Shorey v. Rennell, 1 Sprague, 407, said: Any officer may use violence when necessary to coerce the performance of a duty, when an exigency requires instant obedience." And in United States v. Alden, 1 Sprague, 95, the same judge ruled "that there might be extreme cases, as of mutiny, where the master might resort to extreme measures, even to the taking of life."

* Relf v. Ship Maria, 1 Pet. Adm. 186; Atkyns v. Burrows, id. 244; Thorne v. White, id. 168; Buck v. Lane, 12 S. & R. 266.

* Turner's Case, Ware, 83; Macomber v. Thompson, 1 Sumner, 384, 389; Sampson v. Smith, 15 Mass. 365, 369; Shorey v. Rennell, 1 Sprague, 407.

4 In United States v. Alden, 1 Sprague, 95, the defendant was indicted under the U. S. Statute of March 3, 1835, sec. 3, for imprisoning, " from malice, hatred, and revenge, and without justifiable cause," one of the seamen. It appeared that the seaman deserted, was retaken, and was first put in irons, and in a day or two taken out and informed that if he would not do duty he should be put in the run. The seaman refused to do duty, and objected to the run as an improper place of imprisonment. He was put in the run and remained there for five months, and persisted in refusing to return to duty. Sprague, J., ruled that if the imprisonment was such from its nature and duration as was likely to be permanently injurious to the health or constitution of the seaman, it was not justifiable.

Under some circumstances the master may imprison the seamen on shore. United States v. Ruggles, 5 Mason, 192; Relf v. Ship Maria, 1 Pet. Adm. 186; Wood v. The Nimrod, Gilpin, 83, 89. But, as is said by Judge Hopkinson, in Wilson v. The Mary, Gilpin, 31, 32, "The practice of imprisoning disobedient