1806.

Embezzlement.

EMBEZZLEMENT was charged on five of the libellants, to repel their claim for wages. A quantity of coffee, four thousand weight was alleged to have been embezzled. It appeared by certificates, admitted by consent, from sundry merchants trading to Amsterdam, where the fact charged was said to have been perpetrated, that the difference between the weight of coffee in America and its produce at the Dutch scales varies between eighteen and twenty-two per cent, though in some cases it has exceeded the latter. The loss was estimated on a difference between twenty-two and twenty-six per cent, on what the whole of the coffee in question should have weighed, occasioning a loss of four thousand weight to the owner. Testimony was produced, which shewed only four hundred pounds to have been actually taken by five delinquents, though suspicion reached much further. No decision was had on the facts, but an intimation was given by the court, that no opinion could be grounded on mere suspicion; and a decree could only extend to the quantity actually proved, either by positive testimony or circumstances, to have been taken.

The court, on a compromise between the parties, ruled, on application for its opinion,

SEAMEN'S WAGES.

1. That although an embezzlement of part of Crammer, the goods lost, be fixed on some of the crew, who

et al. US.

American.

must pay separately to the amount proved, yet they the ship Fair or the surplus of wages, if forfeited, or in the hands of the owner, remain further answerable, in a ge- Although neral contribution, for the balance.*

2. That the whole must contribute, according to their respective wages, the captain and officers of the ship included.

part of the embezzlement is fixed me on, and paid by, some of

the crew, yet all are to contribute to the

residue. Master and

officers join in this contribu

tion.

3. Nor is any one to be excused from this general contribution, though absent from the ship, and not in a situation to be capable of assisting in the plunder. This point occurred in the case of one of the seamen, entitled to his wages, who was confined Sailor absent, in prison, during the period when the transaction happened.-The innocence of an individual is not the question; it turns on the joint obligation of all, to make retribution; it is part of the conditions, upon which they engage in their occupation.

not excused.

* It has been held, and in some extensive embezzlements, I have so decided, that the actual perpetrator forfeits all right to wages. In most instances, a contribution to the amount, would absorb all the claim to wages. But in petty plunder of esculents, liquor, &c. I have not deemed it right to inflict so rigorous a forfeiture; yet I confess the point of toleration, or punishment, is difficult to ascertain. If the wages of those who actually commit an embezzlement be forfeited, they should be considered, in the hands of the owner, as part payment towards the contribution of the innocent members of the crew, where farther embezzlement than that fixed on individuals, has been committed. On this consideration, the opinion was given, according to the fact, respecting a further contribution by the guilty mariners.

SEAMEN'S WAGES.

Atkyns, mate,

versus

Burrows, master of the brig Huntress.

1804.

When and for what

causes a mate

may be dis

placed by the

master.

Accounts for

traffic and dealing be

tween master

and mate, not subjects of admiralty jurisdiction.

THE dispute, between the master and the mate, in this cause, was concerning the mate's wages. Process, or a citation was issued against the master and owner. There were accounts of monies and articles of traffic and dealing between the captain and mate, but they were not considered within the jurisdiction of the admiralty, except so far as they were connected with the claim for

wages.

The master had, a short time before the arrival of the vessel at Philadelphia, the last port of delivery, turned the mate before the mast.

The mate insisted on his wages, agreeably to contract. He went on shore at Philadelphia, where the voyage ended, against the captain's orders, to take advice. He returned in a few hours (far under forty-eight) and tendered himself ready to assist in unlading the cargo, as mate. The captain refused to reinstate him in the capacity of mate, and he would not labour as a mariner, in delivering the cargo.

The forfeiture of wages was insisted on

First. Because the captain had displaced the mate at sea, for causes of which he was competent to judge, and having legal authority so to do.

SEAMEN'S WAGES.

Second. The mate had gone on shore without the captain's orders and against his directionsHe had not assisted to unlade the cargo; and had left. the ship before she was unladen, thereby incurring a forfeiture of all his wages, as he was absent without leave, and did not return on board, within fortyeight hours, as the act of congress directs. On the first point. The causes assigned for displacing were—

First. The mate having been found asleep during his watch-the proof was, that the mate, who was lame in one of his feet, was found during the watch, lying for a few minutes on a hencoop. One witness said he was asleep; the other could not be positive, and spoke doubtfully.

Second. The mate had disobeyed the orders of the captain at sea, in neglecting to have the jib hauled down, on the approach of a squall, whereby the jib was split. The proof on this point was not satisfactory; it appeared that the mate had at first ordered the jib down-afterwards he conceived there would be no necessity for it—but on the squall encreasing he repeated, too late, the orders to haul it down all this happened in the course of a few minutes.

Master offer

fused.

The master is answerable to

the owners

The captain was offered as a witness, to prove ed as a witthese and other facts, which the mate denied. The ness, and rejudge refused to permit the captain to be sworn; alleging it to have been his practice not to admit such testimony. In this case there appeared much personal animosity; and the contest seemed to lay entirely between the master and mate. The master is answerable to the owners for damages accruing to them by his improper and illegal discharge

for damages accruing from

the illegal discharge of mariners, and

also for extragiven.

vagant wages

Atkyns

Burrows.

Mate may

sue for wages

in the admiralty court.

All rules operating on ma.

riners apply to him.

Master may displace the

and lawful

cause may be

SEAMEN'S WAGES.

of mariners, as well as for extravagant wages given to, or injurious contracts made with them. This, he said, was among the reasons inducing him to refuse permitting the master to be examined as a witness, in such controversies. The mate is permitted to sue in the admiraly, as a mariner. All general rules in cases of mariners apply to him. On the several points, the judge declared his opinion, and determined as follows.

Court. When I first came into this court, I found it taken for granted, that the captain had a legal right to displace the mate for just cause. I have seen repeated instances, where the exercise mate for just of this power was necessary for the safety of the cause; but this ship; and I have examined into many cases, whereenquired into. in it had been executed from arbitrary, capricious, and improper motives. It is established by the maritime laws, and so it ought to be, that the captain must be supreme in the ship. His lawful orders must be obeyed. But when a contract is in question, the law, by its proper courts, will see that it is not vacated, for any other than legal, reasonable and necessary causes. The courts will control and examine the powers and conduct of the master. He is authorized to give all commands for the na、 vigating, government and safety of the ship; but he has no authority to nullify a contract at his will, or for light and trifling causes. A contract is a solemn engagement, not to be vacated without the consent of all parties, or on considerations, on which the law must decide through the tribunals established to make such decisions.

The mate is a respectable officer in the ship, and generally chosen with the consent of the own.