Commonwealth v. Bartlett , 190 Mass. 148 ( 1906 )

Knowlton, C. J.

The defendants were complained of under R. L. c. 66, § 2, for enticing and persuading, and aiding and assisting a member of the crew of a vessel about to sail from the port of Boston, to leave and desert said vessel before the expiration of his term of service therein. It appeared at the trial that the vessel was about to sail to Norfolk, Virginia, and that Nicoll, the person alleged to have been enticed and persuaded, had made an oral contract with the captain to perform duty as a seaman. It was admitted by the Commonwealth that the captain had not signed the shipping articles at the time of the acts complained of, but there was evidence tending to show that Nicoll signed them, either before or after the alleged misdemeanor of the defendants. The judge instructed the jury that the fact that the shipping articles had not been signed by the captain would not relieve the defendants from liability, if the other material facts were proved, and that it was of no consequence whether Nicoll signed the articles before or after the acts of the defendants, if he previously had made an oral contract with the captain for service as a seaman on board the vessel.

In order to constitute an offence under the statute, the influence referred to must be exerted upon “a member of the crew of a vessel . . . before the expiration of his term of service therein.” The person referred to must not only be a member of the crew, but he must be one who has entered upon a term of service which is to continue for some time in the future. Unless there is such a term during which the member of the crew is under a binding engagement to serve on the vessel, it is no offence to persuade or entice him to leave the vessel.

For the protection of seamen as well as shipowners, the statutes of the United States contain elaborate provisions regulating the making of contracts for service on shipboard. The U. S. Rev. Sts. § 4520 provides that the master of a vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other than an adjoining State, shall, before he proceeds on such voyage, make an agreement in writing or in print with every seaman on board such vessel, declaring the voyage or term of time for which such seaman shall be shipped. Section 4523 declares that: “ All shipments of seamen made contrary to the provisions of any act of Congress shall be void; and any seaman so shipped may leave the service at any time.” Shipments of seamen without the signing of shipping articles are void, and the seaman may leave the vessel at any time. The Pacific, 23 Fed. Rep. 154. The Lud Keefer, 49 Fed. Rep. 650. The City of Fremont, 2 Biss. 415. If the shipping articles are not signed until after the vessel has left her port of departure, or if they do not declare the voyage with sufficient definiteness, or if wages are advanced to a seaman contrary to the act of Congress, the shipment is void, and the seaman may leave the service at any time. The Occidental, 101 Fed. Rep. 997. Snow v. Wope, 2 Curt. C. C. 301. Kenney v. Blake, 125 Fed. Rep. 672.

The shipment of a seaman becomes of binding effect upon the signing of the shipping articles. Tucker v. Alexandroff, 183 U. S. 424, 442, 444. The Ida G. Farren, 127 Fed. Rep. 766, 767. Patterson v. Bark Eudora, 190 U. S. 169, 175. Other sections of the Revised Statutes of the United States show that the shipping articles constitute the only binding contract for a term of service. Section 4521 provides that, “ Any seaman who has not signed such a contract shall not be bound by the regulations nor subject to the penalties and forfeitures contained in this title.” See also §§ 4511, 4523, 4612, and the form of articles of agreement, Table A, at the end of Title LIII.

These articles, to be binding, must be signed by both the master and the seaman. The form already referred to at the end of Title LIII. shows this. In reference to vessels of a different class from this, it is provided, in regard to articles signed before a shipping commissioner, that “every such agreement . . . shall be signed by the master before any seaman signs the same.” Articles under § 4520 may be made before a shipping commissioner, although they are not required to be so made. U. S. St. June 19, 1886, c. 421, § 2; 24 U. S. Sts. at Largei 80. When so made they must be made in the same manner as those required to be made before a shipping commissioner, that is, they must be signed by the master before being signed by any seaman. In this case it appears that the master “ was waiting to sign once for all, when all were finally on board.” The articles, therefore, were not binding upon either party because they were not signed by the master. This is in accordanee with the rule of law in regard to ordinary agreements in writing which are made to be executed by two parties mutually contracting with one another. Goodenow v. Dunn, 21 Maine, 86, 91. Waggeman v. Bracken, 52 Ill. 468. Barber v. Burrows, 51 Cal. 404. Arnold v. Scharbauer, 116 Fed. Rep. 492, 495. It follows that Nicoll was not a member of the crew who had entered upon a term of service, or who was bound to any term of service, at the timé of the alleged acts of the defendants. He was at liberty to leave the ship at any time, inasmuch as he had made no binding contract. Upon the facts admitted by the Commonwealth, the defendants could not legally be convicted.

The defendants filed a motion to quash and a motion to dismiss, and took exceptions to orders overruling these motions. The questions arising under the motions, which relate principally to the constitutionality of R. L. c. 66, § 2, are properly before us on the exceptions. But inasmuch as, on the admitted facts, our decision upon the other questions will finally dispose of the case, we do not think it necessary to consider the constitutional questions.

Exceptions sustained.