If any seaman who has signed the articles shall desert during the voyage, the master may have him arrested and committed to jail until the vessel is ready to proceed, by applying to a justice of the peace and proving the contract, and the breach thereof by the seaman.[74]

[74] Do. --7.

Every vessel bound on a foreign voyage shall have on board a duplicate list of the crew, and a true copy of the shipping-articles, certified by the collector of the port, containing the names of the crew, which shall be written in a uniform hand, without erasures or interlineations. This copy the master must produce to any consul or commercial agent of the United States who shall require it; and it shall be deemed to contain all the conditions of the contract. All erasures and interlineations shall be deemed fraudulent unless proved to be innocent and bona fide. Every master who shall go upon a foreign voyage without these doc.u.ments, or shall refuse to produce them when required, shall forfeit one hundred dollars for each offence, beside being liable in damages to any seaman who may have been injured thereby.[75]

[75] Act 1840, ch. 23, --1.

DISCHARGE.--If the master discharges any seaman in a foreign port, with his own consent, he shall pay to the consul three months' wages for every such seaman, in addition to the wages then due to him, two-thirds to go to the seaman upon his taking pa.s.sage for the United States, and the remainder to be retained by the consul to make a fund for the relief of dest.i.tute seamen.[76] The master of every vessel bound to the United States shall, upon the request of the consul, take on board any seaman and transport him to the United States, on terms not exceeding ten dollars for each seaman, under penalty of one hundred dollars for every refusal. He is not, however, bound to receive more than two men to every hundred tons.[77]

[76] Act 1803, ch. 62, --3. See also Act 1840, ch. 23, --5.

[77] Act 1803, ch. 62, --4.

The whole policy of the United States discourages the discharge of seamen in foreign ports. If the seaman is discharged against his consent, and without justifiable cause, he can recover his wages up to the time of the vessel's return, together with his own expenses. The certificate of the consul will not, of itself, prove the sufficiency of the cause of discharge. Though the seaman shall have made himself liable to be discharged, yet if he repents and offers to return to duty, the master must receive him, unless he can show a sufficient cause of refusal.[78] If the master alleges, as a cause for discharging a seaman, that he was a dangerous man, it must be shown that the danger was such as would affect a man of ordinary firmness.[79]

[78] Ware, 65. 4 Mason, 541, 84.

[79] Ware, 9.

In addition to the master's liability to the seaman, he is criminally liable to the government for discharging a mariner without cause. The statute enacts that if the master shall, when abroad, force on sh.o.r.e or leave behind any officer or seaman without justifiable cause, he shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months, according to the aggravation of the offence.[80]

[80] Act 1825, ch. 276, --10.

Notwithstanding these liabilities, the master may discharge a seaman for gross misconduct; yet the right is very strictly construed.[81]

[81] Abbott on Shipp., 147, note.

IMPRISONMENT.--The master has the right to imprison a seaman in a foreign port, in a case of urgent necessity, but the power has always been very closely watched by courts of law. "The practice of imprisoning seamen in foreign jails is one of doubtful legality, and is to be justified only by a strong case of necessity."[82] "The master is not authorized to punish a seaman by imprisonment in a foreign jail unless in cases of aggravated misconduct and insubordination."[83] If he does so punish him, he is not permitted to deduct his wages during the time of imprisonment, nor charge him with the expense of it.[84] If the imprisonment is without justifiable cause, the master is not excused by showing that it was ordered by the consul.[85] And, generally, the advice of a consul is no justification of an illegal act.[86]

[82] Gilpin, 31. Ware, 19.

[83] Ware, 503.

[84] Ware, 9, 503.

[85] Ware, 367.

[86] Gilpin, 31.

PUNISHMENT.--The master may inflict moderate correction on a seaman for sufficient cause; but he must take care that it is not disproportionate to the offence. If he exceeds the bounds of moderation he is treated as a trespa.s.ser, and is liable in damages.[87] In respect to the mode of correction, it may be by personal chastis.e.m.e.nt, or by confinement on board ship, in irons, or otherwise.[88] But there must not be any cruelty or unnecessary severity exercised. The mode, instruments or extent of the punishment are not laid down by law. These must depend upon circ.u.mstances. In cases of urgent necessity, as of mutiny, weapons may be used which would be unlawful at other times; but even in these cases, they must be used with the caution which the law requires in other cases of self-defence and vindication of rightful authority.[89]

[87] 1 Peters' Ad. 186, 172. 2 Do. 420. 1 Wash. 316.

[88] 1 Peters' Ad. 186, 168. 15 Ma.s.s. 365.

[89] Same cases.

It is not necessary that the punishment should be inflicted to suppress the offence at the time of its commission. It may be inflicted for past offences, and to promote good discipline on board. But the reference to by-gone acts should be very clear and distinct, or they will be presumed to have been forgiven.[90] In many cases prudence may require a postponement of the proper punishment. The authority of the master, being in its nature parental, must be exercised with a due regard to the rights and interests of all parties. He has a large discretion, but is held to answer strictly for every abuse of it.[91] The law enjoins upon him a temperate demeanor and decent conduct towards seamen. He risks the consequences if he commences a dispute with illegal conduct and improper behavior.[92] In all his acts of correction, he must punish purely for reformation and discipline, and never to gratify personal feelings.[93] If a master generally permits or encourages disorderly behavior in his ship, he is less excusable for inflicting unusual punishment on account of misconduct arising out of that disorder.[94] If the case admits of delay, and the master does not make proper inquiry before punishing, he takes the consequences upon himself.[95]

[90] 1 Hagg. 271.

[91] 15 Ma.s.s. 365. 3 Day, 294.

[92] 4 Wash. 340.

[93] 1 Pet. Ad. 168, 173, note.

[94] Bee, 239.

[95] 1 Hagg. 271.

This power over the liberty and person of a fellow man, being against common right, and intrusted to the master only from public policy, regarding the necessities of the service, is to be sparingly used, and a strict account will be required of its exercise. The master is responsible for any punishment inflicted on board the vessel, unless in his absence, or when he is prevented by force from interfering.[96]

Neither will absence always be an excuse. If he had reason to suppose that such a thing might be done, and did not take pains to be present and interfere, he will be liable. Neither, (as is often supposed,) will the advice, or even the personal superintendence or orders of a consul, or any foreign authority, relieve the master of his personal responsibility.[97] He may ask advice, but he must act upon his own account, and is equally answerable for what he does himself, and what he permits to be done on board his vessel by others. The seaman is ent.i.tled to be dealt with by his own captain, under whom he shipped, and whom he may hold responsible at the end of the voyage; and this responsibility is not to be shaken off by calling in the aid of others.

In case of an open mutiny, or of imminent danger to life and property, the master may make use of the local authorities; but then he is to remember that he can use them no further than for the purpose of quelling the mutiny, or of apprehending the felon. As soon as his authority is restored, the parental character is again thrown upon him, and all acts of punishment must be upon his own responsibility. He has no right to punish criminally. He has no judicial power. If a seaman has committed an offence further than against the internal order and economy of the ship, and which moderate correction is not sufficient to meet, the master must bring him home, (in confinement, if necessary,) or send him immediately by some other vessel, to be tried by the laws and by a jury of his country.[98]

[96] 2 Sumner, 1. Ware, 219.

[97] Ware, 367. Gilpin, 31.

[98] 1 Pet. Ad. 168.

The practice of subjecting American seamen to foreign authority, or to persons whom they cannot well hold answerable,--like that of foreign imprisonment,--is an odious one, and must be justified by an overpowering necessity.

A recent statute[99] makes it the duty of consuls to exert themselves to reclaim deserters and discountenance insubordination, and authorizes them to employ the local authorities, where it can usefully be done, for those purposes. But this will unquestionably be restricted to the apprehension of the deserter, and the quelling of the revolt or mutiny; and as soon as these ends are attained, the sole responsibility of the master in dealing with the crew will re-attach.

[99] Act 1840, ch. 23, --1.

If the master is present while the mate, or any subordinate officer, inflicts punishment upon any of the crew, or if it is inflicted under such circ.u.mstances as would raise a presumption that the master was knowing of it, and he does not interfere, he will be held to have adopted it as his own act, and will be answerable accordingly.[100]

[100] 2 Sumner, 1.

In addition to the master's liability to the seamen in damages for abuse of power, he is also liable, as a criminal, to fine and imprisonment. A recent statute enacts, that "if any master, or other officer, of an American vessel, shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison any one or more of the crew of such vessel, or withhold from them suitable food or nourishment, or inflict on them any cruel or unusual punishment, every such person so offending shall, on conviction thereof, be punished by fine not exceeding one thousand dollars, or by imprisonment not exceeding five years, or by both, according to the nature and aggravation of the offence."[101] It is held that the word 'crew,' in this statute, includes officers; and accordingly a master was punished for unjustifiably confining and otherwise mal-treating his chief mate.[102]

[101] Act 1835, ch. 313, --3.

[102] 3 Sumner, 209.

To const.i.tute 'malice' in the above statute, it is not necessary to show malignity as it is commonly understood, or brutality; but the term, in law, requires no more than a 'wilful intention to do a wrongful act.' An offence is punishable under this act, even although no bad pa.s.sions came into play, (as hatred, or revenge,) for the term 'malice,' in law, covers all cases of intentional wrong, in their mildest form.[103]

[103] 2 Sumner, 584.

If a seaman desires to lay any complaint before a consul in a foreign port, the master must permit him to land for that purpose, or else inform the consul immediately of the fact, stating his reasons in writing for not allowing the man to land. If he refuses to do this, he forfeits one hundred dollars, and is liable to the seaman in damages.[104]

[104] Act 1840, ch. 23, --1.

CHAPTER V.