Ulary v. The Washington , 1 Crabbe 204 ( 1838 )

HOPKXNSON, District Judge.

This claim is for wages, for a voyage from Philadelphia to Calcutta and back, or, at least, from Philadelphia to the time when the libellant left the ship at Calcutta. The ship sailed from Philadelphia on the 24th July, 1S35, and returned on 17th .Tune, 1S36. The libellant left the ship at Calcutta, on the 12th January, 183(5, with most of the crew, and never aft-erwards returned to her. The respondent alleges that the libellant has forfeited his wages; 'first, by desertion, and second, by disobedient and mutinous conduct. The disobedience and departure from the ship are .-justified, by the libellant, first, on account of the character of the provisions furnished; and second, because he was required to work on Sunday. As to the departure from the ship. It has been denied that the entries in the log-book are sufficient to forfeit the libel-lant’s wages. All that the law requires is that the entry shall show that the absence was without leave, in order that an innocent departure shall not afterwards be turned into desertion. We find in the log-book the term “ran away.” and afterwards an entry that the men were “absent without leave,” though not made on the day the men were first absent. Taking the whole book together, however, the second entry is explanatory of the first. But it is not necessary to insist upon the entry in the log-book in older to show that the libellant’s wages were forfeited, as the refusal to work, the obstinate disobedience, and the final abandonment of the ship and his duty, will work a forfeiture, unless avoided by sufficient reasons on the part of the libellant.

The libellant has alleged two grounds of .-justification. First, the character of the provisions furnished; and second,-the fact of his being required to work on Sunday.

In regard to the provisions, it appears that they were the same that the crew had used on the voyage out. without complaint, and that the same were used, equally without complaint, by the returning crew. But the case must be extremely clear in point of fact, and the provisions not merely not of the best, but positively bad, and unfit for the men’s support, to justify their leaving the ship in a foreign port. They had another remedy; and an extreme case only can justify desertion. I think the libellant has failed to justify himself on this point.

The libellant contends that he was not bound to work on Sunday. There is no law for this position. The nature of the service requires that the men should do so, and they must not be allowed to set themselves up as judges, and refuse to do their duty on such excuses. 1 think that, on the whole, the libellant has failed to justify his refusing to work, and his leaving the ship.

Has he avoided the forfeiture by his subsequent good conduct, that is, by his repentance, and offer to return to his duty and make amends for the past? It is wholly uncertain whether or no the boat spoken of was their boat, or whether the libellant and his companions were in it. But, supposing that it was they, is this the state of repentance,. of return to duty, of tender of amends, intended by the law? To come off at night, to say nothing, not to explain who they were, or what they wanted? I cannot think that this was the proper course. We do not know that they did not come off simply for their clothes. There was no offer to return to duty, merely an effort to come on board; but for what purpose, no one knows. This is not what the law requires. The offending seamen must come in person, must show their repentance for their fault, and their willingness to return to duty. Libel dismissed.