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Grounds of discharge.
Change of mas
quire carefully into the facts and circumstances, and to satisfy himself that good and substantial reasons exist for a discharge before granting the application. A seaman is not to be discharged for slight or venial offenses, nor for a single offense unless of a very aggravated character. If the seaman is charged with insubordination, it should satisfactorily appear that he is incorrigibly disobedient and will not submit to his duty, and that he persists in such conduct. Gross dishonesty, habitual drunkenness, and a disposition to instigate broils and quarrels to the destruction of the discipline of the crew, have been held to be sufficient ground for discharge. But it is otherwise if the offense is temporary, and if the offender is repentant and is willing to amend and return to duty. Generally, the grounds on which a seaman may be discharged, when insubordination or bad conduct is alleged, are such as amount to a disqualification, and show him to be an unsafe or unfit man to have on board a vessel. Except for good reasons and in extraordinary circumstances seamen should not be discharged at a foreign port when the vessel is homeward bound.
183. The Consular Officer must be satisfied that the officer or seaman is either absolutely incompetent to perform the work he has contracted to do, that he has been guilty of such acts of insubordination as to make him dangerous to a man of ordinary firmness, or that his habitual misconduct (such as drunkenness, for instance) amounts to unfitness for duty, or, if an officer, that he has been guilty of habitual cruelty.
184. The statute provides that any person or body-corR. S., sec. 4250. porate having more than one-half ownership of any vessel shall have the same power to remove a master, who is also part owner of such vessel, as such majority-owners have to remove a master not an owner. This provision does not apply where there is a valid written agreement subsisting, by virtue of which the master would be entitled to possession, nor in any case where a master has possession as part owner obtained before April 9, 1872.
Duty of Consular Officer.
185. Consular Officers are occasionally called upon to assist in the removal of a master under this statute. They will not hesitate to lend their services under such circumstances, but it is desirable for their own protection that they
should satisfy themselves that the parties applying to them are duly authorized for the purpose. It is advisable also, if there is time to do so, to refer the case to the Department of State for instructions.
186. Cases have occurred in which Consular Officers have, with the subsequent approval of the Department of State, removed masters of vessels and appointed others in their places to complete the voyage. The exercise of this extreme power has been deemed to be justified by the gross incompetency of the master, endangering the lives of the passengers and crew, his misconduct or collusion with others to the serious injury of the owners or insurers, or when he has been guilty of flagrant tyranny towards the passengers or crew. In other instances the insanity or permanently disabling illness of the master has called for his removal. The gravity of the proceedings will suggest to the Consular Officer that they should be taken only after careful deliberation and for good and sufficient cause; and that they should be promptly and fully reported to the Department. For a form of oath and certificate on the appointment of a new master, see Form No. 19.
187. Every master or commander of any vessel belonging in whole or part to any citizen of the United States, who, during his being abroad, maliciously and without justifiable cause, forces any officer or mariner of such vessel on shore, in order to leave him behind in any foreign port or place, or refuses to bring home again all such officers and mariners of such vessel whom he carried out with him as are in a condition to return and willing to return, when he is ready to proceed on his homeward voyage, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than six months.
Arrears of Wages and Extra Wages.
188. The Statutes of the United States provide for the collection of one month's extra wages in the following cases, and in no others, viz:
1. When inspectors appointed by the Consul to examine whether the vessel is in a suitable condition to go to sea
Removal of ma..
R. S., sec. 5363,
R. S., secs. 4559
23 Stat., 54, sec.
shall have reported that she was sent to sea unsuitably provided in any important or essential particular, by neglect or design, and thereupon the seaman is discharged. (See paragraphs 180, 209.)
2. Whenever a vessel of the United States is sold in a foreign country and her company are discharged. But in case the master shall, with the assent of the seaman, provide him with adequate employment on board some other vessel bound to the port at which he was originally shipped, or to such other port as may be agreed upon by him, then no payment of extra wages shall be required. Consular Officers should, so far as they properly can, strive to induce seamen so discharged to reship at once, and thus avoid the infliction of the one month's penalty. (See paragraphs 205 to 210.)
3. Whenever, on the discharge of a seaman in a foreign country, on his complaint that the voyage is continued contrary to agreement, the Consular Officer shall be satisfied that such voyage has been designedly and unnecessarily prolonged, in violation of the shipping articles.
4. Whenever a seaman is discharged by a Consular Officer in consequence of any hurt or injury received in the service of the vessel. The word "hurt" is understood to refer to a physical injury causing pain (a wound, bruise, or the like); the word "injury" refers to any injury to health resulting from the performance of duty by a seaman which is sufficient to warrant his discharge. (See paragraphs 217 and 218.)
5. In all cases where deserters are apprehended the Consular Officer shall inquire into the facts, and if he is satisfied that the desertion was caused by unusual or cruel treatment, he shall discharge the seaman and require the master of the vessel from which such seaman is discharged to pay one month's wages over and above the wages then due. (See paragraphs 191 and 192.)
189. If any Consular Officer, when discharging any seaman, shall neglect to require the payment of and collect the arrears of wages and extra wages required to be paid in the case of the discharge of any seaman, he shall be accountable to the United States for the full amount thereof. If any seaman, after his discharge, shall have incurred any
expense for board or other necessaries, at the place of his discharge, before shipping again, or for transportation to the United States, such expense shall be paid out of the arrears of wages and extra wages received by the Consular Officer, which shall be retained for that purpose, and the balance only paid over to such seaman.
190. It is held by the Department that no portion of the arrears of wages or of the extra wages should be delivered to the seaman until all expenses for board or other necessaries incurred by such seaman, or on his account, including home or other transportation, shall have been deducted from such arrears of wages and extra wages. In case the fund held by the Consular Officer on account of any seaman be found to be insufficient to pay any such demands against the seaman, the Consular Officer will supply such deficiency. If a Consular Officer deliver to a seaman his wages and he afterwards and before reshipment becomes a charge on the fund for relief, the officer thereby renders himself liable to the Goverement for the amount of the expense, to the extent of the wages paid over. (See paragraphs 217 and 218.)
To be retained by Consul.
191. When a Consular Officer discharges a seaman in cases of desertion caused by unusual or cruel treatment, he cruel treatment. must enter upon the crew list and shipping articles the cause of discharge, and the particulars in which the cruelty cr unusual treatment consisted, and the facts as to his discharge or re-engagement, as the case may be, and subscribe his name thereto officially. (See paragraph 188.)
192. The like power and duty devolve upon Consular Officers when seamen, who have not deserted, complain of unusual and cruel treatment, as well as in all cases of such treatment, by whomsoever the case is brought before the Consul.
Discharge for cruel treatment
The statute is not limited to cases in which deserters are apprehended. Their rights do not depend on the desertion, though no deser but on the treatment. Otherwise, the master, by forcing the crew from the ship without permitting them to see the Consul, and then refusing to apprehend them, might rob them of their wages by treating them as deserters not worthy of being reclaimed. Seamen, therefore, who have
Coffin v. Wild, 2 not deserted, but are discharged by a Consular Officer on the ground of unusual or cruel treatment, are entitled to their wages and extra wages.
Foreign or Amer. ican-built vessels.
193. American seamen engaged on American or foreignbuilt vessels purchased abroad and wholly owned by citizens of the United States are to be regarded in the same light, as respects the collection of extra wages, as seamen on regularly-documented vessels, except where such a vessel has been sold abroad (paragraph 188, No. 2). There is no provision in the statutes for the payment of extra wages by such vessels when sold abroad; and Consular Officers will not exact it.
194. It is not competent for a master of a vessel to make MS. Dept. of State. a contract with a seaman which provides for the waiver or remission of the extra wages upon his discharge at a foreign port in cases where otherwise he would be entitled to them. In all engagements of seamen the statutes of the United States respecting such wages must be deemed and taken to be a part of the seaman's contract.
No waiver of ex tra wages permit
in gold, &c.
195. Doubtless any person may waive a benefit to which he is entitled by law, but he cannot by such waiver affect the rights of third persons or contravene the policy of a statute. Extra wages are allowed to a sailor in the specified cases to prevent his becoming a public charge and to provide a means for his relief and for his return home. A sailor cannot, therefore, by his own act, repeal the statute and defeat the public policy whichinduced its enactment. As paragraph 194 determines that he cannot expressly waive his right to extra wages in the shipping contract, Consular Officers are instructed to exact such wages in all cases where the law requires them to be paid; and especially as section 7 of the act of June 26, 1884, makes Consular Officers accountable to the United States for their full amount if they neglect to require their payment.
196. The moneys paid under the laws of the United R. S, sec. 4548. States by direction of Consular Officers, at any foreign port or place, as wages, extra or otherwise, due American seamen, are to be paid in gold or its equivalent, without any deduction whatever, any contract to the contrary notwithstanding.