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CONDONATION RESTORES RIGHT TO WAGES.

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brought against the master and owners of the Commerce for the balance of wages due.

At the hearing, the log-book entry was produced and relied upon in defense; but not permitted by Judge Peters to avail the respondents. His opinion, as reported, is remarkable for its singular felicity of expres sion and tone, as well in forgiving the numerous faults and frailties, as in vindicating the few paramount rights of seamen. In the course of it, this learned judge observes that "seamen are deemed the sinews, or more aptly in our ships, called 'the hands,' of naval power, strength, and security. Without the aid of this intrepid and hardy class of men, under national government and protection, commerce might be annihilated. They are encouraged and protected by all the maritime laws, for other and more extensive national purposes, as well as for those in which commercial individuals employ, and profit by, their services. Their frailties are by these laws forgiven; and their offenses, so far as these affect contracts, are pardoned, on repentance, compensation, or offer of amends and return to their duty." This eminent judge then adds that, "Public policy and private justice, as it is fit they should, here move together."

Condonation, therefore, has been judicially recognized as the avowed and peculiar privilege of the seaman for the full period of seventy years in the United States. By the case last referred to, a reception of a deserting seaman on board for duty was deemed to be a waiver and pardon of former forfeitures. This effort to repel the seamen's claims to wages, antecedent to the date of the log-book entry, by force of which wages might be forfeited, was pronounced to be an "attempt at sever

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OPINIONS OF JUDGE PETERS.

ity," which the law would not justify; Judge Peters observing that "It is much to be desired that all our mercantile citizens better understood those principles of the maritime laws, which, in courts of justice, we are bound to follow. Crimes and offenses of seamen are rigorously punished; but mariners, with all their too numerous faults, are considered, by all maritime nations, objects of national concern. Their contracts are placed under the cognizance of national courts, bound to proceed by fixed rules, and circumscribed by principles of law."

The case of the Commerce, being one of the earliest decisions and judicial readings on desertion and condonation, has been drawn upon liberally. It was pronounced by an eminent American judge in the same year that a distinguished English judge (Stowell) commenced his brilliant judicial career, during which he pronounced a series of decisions, which covered a period of time from November 6, 1798 (when Christopher Robinson reported his first decision), until December 13, 1827, when Mr. Haggard reported his last decision.

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At the date of Judge Peters' decision, therefore, he was entirely destitute of those helps which others may now derive from the many reported cases in the English Admiralty Reports published during the present century. Judge Peters was then a pioneer in this branch of American jurisprudence; obliged to lead the way these investigations; and form his own judicial interpretations in practically applying the principles of the foreign codes. Still this great magistrate successfully grasped, and seemed to fully comprehend, not only the general principles, but also the minute details, of those ancient repositories of the principles of the maritime law.

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AS TO DESERTION AND CONDONATION.

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Certain it is, that Judge Peters' mode and manner of dealing with desertion as a marine offense, and the effect of condonation in mitigating its penalties, strikingly indicate that magistrate's proper appreciation of the offense, his own full and comprehensive knowledge of maritime jurisprudence, and a just regard for the privileges and rights of the mariner; and the result is, that if a mariner do desert, he renders himself liable to a total forfeiture of his wages: how far such forfeiture shall extend, whether to the whole or only a part of his wages, depends upon the mitigating circumstances in the first place, and ultimately rests with the discretion of the court, by which the matter is to be tried.

Forfeiture inevitably follows desertion, whether general or statute desertion, unless the mariner shall, by tendering amends, have thereby purged the offense of its criminality; and so exempt himself from the penal consequences of desertion. For generally, a remission of the penalty of forfeiture may be secured by seasonable submission. But then it must be seasonably made; for if there be no amends offered until the master shall have incurred the extra expense of engaging a substitute hand, the submission will be too late and condonation. will not legally follow. Vide 1 Pet. Adm. 160.

And in many other cases, qualifications and modifications of the general doctrine occur; and several decis ions in Peters' and Mason's Reports will be found useful and instructive. Unless the desertion be voluntary, forfeiture will not accrue. Compulsory abandonment cannot be legal desertion. The essential ingredients of the legal offense are wanting. Thus where seamen are compelled to leave the ship by cruelty and oppression, wages are nevertheless recoverable; for in that case

290 VOLUNTARY ABANDONMENT ONLY AMOUNTS TO DESERTION.

there could be no technical desertion. 1 Pet. Adm. 186, Relf et al v. The Maria.

Where a seaman has deserted, if the master receive him again, and subsequently give him a discharge, with an acknowledgment that he is entitled to his wages, it is a complete purging away of all the previous forfeiture. 1 Mason, 45, Emerson v. Howland et al.

So, as in the Commerce, supra, if a mariner be again received on board, a forfeiture previously incurred is remitted. 1 Pet. Adm. 160.

A voluntary abandonment of duty usually amounts to desertion, drawing after it a forfeiture of wages. 1 Pet. Adm. 129, Boardman et al. v. The Elizabeth.

So a mariner, as has been seen in the case of the steward of the Louisiana (2 Pet. Adm. 268), may for feit wages by an habitual course of misconduct, or by a single act of gross dishonesty or aggravated infidelity.

We have now seen what desertion is; what its effect is on the mariner; how the mariner may be reinstated by acts of repentance; and when and how condonation follow submission.

In Cloutman v. Tunison (1 Sum. 373), desertion is defined with precision and accuracy. It is the voluntary abandonment of the ship and duty, without permission and in violation of his contract obligation, by a mariner, with no intention of returning, animo non revertendi.

There are other grounds and causes of forfeiture of wages besides desertion, some of which will now occupy our attention to a limited extent.

First. Embezzlement is an offense on board ship of the gravest character, and entirely incompatible with

EMBEZZLEMENT GROUND OFFORFEITURE.

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the contract stipulation of the mariner, in reference to his respective duties to the ship, owner, and master. The mariner's contract imposes upon him, as has been substantially stated elsewhere, three several duties: 1st, fidelity to his ship; 2d, honesty towards the owner; and 3d, obedience to the master. Disregard or neglect of duty in either of these particulars by a mariner is a positive marine offense, and may be visited on him with condign punishment, or subject him to those well known penalties, recognized by the maritime law, forfeiture or deduction of wages, or render him liable in damages, to a reasonable amount, adequate to repair the actual and ascertained loss, if not also to make good the probable contingent damage.

From the condition and pecuniary circumstances of the common seaman, no indemnity, beyond the amount of wages due, can be relied upon or looked for. Hence, the only penalty attaching to the breach of trust, known as embezzlement, is ordinarily limited to forfeiture, or deduction of wages. Practically it goes no further; although there may exist a technical liability for damages in the way of indemnity; yet a case will seldom arise to warrant pursuing this latter remedy, in behalf of an owner.

Embezzlement of stores or cargo is a direct wrong to the owner. Every mariner stipulates for honesty toward his employer; and at sea, no portion of the owner's property can be abstracted, misapplied, or misappropriated, without justly attributing its disappearance to persons on board at the time when the abstraction, be it by theft, larceny, or conversion, took place. The charge can only be imputed to the officers, crew, or passengers, if any, on board; and the investigation by

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