1

SEAMEN'S WAGES.

sometimes remains on board for more than one voyage. Exercising therefore a discretion, according to circumstances, I have given more or less time, as the evidence justified me. To fix on the time of discharge would be difficult, uncertain, and often unjust. It depends on the industry, the inclination, or the interest of the owner, whether the discharge be accelerated, or unreasonably retarded. I have allowed, at the least, ten days from the end of the voyage; and at the most, fifteen working days to unlade. The latter period is given, in the collection law, for this purpose; after the time in which the master is bound to report. Although it. has been contended that ten days even after this period, should be allowed, I have not thought it just to extend the interpretation, to a length appear ing so unreasonable. It is too great a hardship on seamen, and very injurious to commerce, to delay the payment of wages, and thereby reduce the mariner to distress, as well as prevent his employment in other service. Or, if he is forced by necessity. to enter into other employment, it may be at the price of abandoning, or selling for a trifle, the earnings of a precedent voyage. The law was enacted to do justice, and not to impose unnecessary hardships by granting unreasonable indulgences. Although all the freight may not be collected within the ten or fifteen days, it can scarcely ever hap-, pen that a sufficient sum is not received, in that time, to discharge the demands of the crew.

In the case before me, I allow fifteen working days, from the end of the voyage: that is, from the day on which the vessel was made fast to the wharf, and ready to discharge..

Thorne,

versus

White.

SEAMEN'S WAGES.

1806.

Quarrels and affrays between the master and mariners

during the voyage, in what degree they affect

claims for wages.

A SEAMAN cited the master, to shew cause why process should not issue against the ship, for wages.

Cause shewn.-That the mariner, who had conducted himself well, in other respects, during the whole voyage had a difference with the captain, in the river Delaware, on the ship's return. A quarrel ensued, and blows passed. The master began the affray, with violence and intemperate passion.

AT the circuit court of the United States, October, 1806, before judges Washington and Peters, one Magill, mate of the brig Rover, Budden, master, lying, at the time when the offence was said to have been committed, in the haven of Cape Francois, was indicted for murder, in killing, with malice, &c. his captain. The death ensued a quarrel and affray, originating from intoxication on the part of Budden, and imprudently aggravated by intemperate language and ill-timed resistance on the side of the mate. The fatal stroke was given with a very large club, on board the vessel, but the death took place on shore. The testimony supported only one of the counts in the indictment; and was substantially as before stated. The defence on the merits was suspended, to take the opinion of the court on the point of jurisdiction. It was alleged, and so ruled by the court, that the stroke having been given at sea, or in the haven, and the death occurring on land, within a foreign territory, the crime was not completed within the jurisdiction of the court, which only

SEAMEN'S WAGES.

He threw scalding water, into the seaman's face-
provoked resistance first, and afterwards a return
of blows, from the seaman. Both parties conducted
themselves improperly. The master confined the
mariner in the fore-castle, and threatened his life,
if he came on deck. A neglect, and refusal to do
duty was alleged, which the mariner denied. No
order, or demand to do duty, was proved. The
resistance to, and attack on, the captain, and the
sailor's leaving the ship, before she was unladen,
were also insisted on, to repel the claim to wages.
Court. It is unreasonable to insist on the
lect of duty, when the seaman was prevented by
confinement and threats. Passes at him, with a

neg

Thorne

VS.

White.

Seamen restrained by confinement

and threats,

not chargelect of duty.

able with neg

embraced offences" on the high seas. On two of the counts, a nol. pros. was entered, and a verdict of acquittal taken on the third; though some doubts arose whether, if the court had no jurisdiction, the verdict could legally be recorded.

Many authorities from the British books were cited by the prisoner's counsel, to shew, that the place where the stroke was given, and that of the death, must be within the jurisdiction; and the offence was not complete unless both circumstances concurred. Unless the stroke and death so concurred, it was not murder " on the high seas." The name of the offence is only mentioned in the act of congress; its definition is left to common law interpretation—and the authorities cited shew the construction.

On the part of the United States it was contended; that the authorities cited, only applied to the subject of vicinage, and were directory of the place of trial, as it respects the summoning the jury. The place of trial is here fixed by our law-to wit, the district of first arrival, or apprehension of the party, and therefore the British authorities are irrelevant and useless. That the British admiralty jurisdiction extended to parts beyond the seas, though the jurisdiction not being local, but personal over

Ꮓ

Thorne

VS.

White.

SEAMEN'S WAGES.

drawn sword were made by the captain, at one time, when he attempted to come on deck.

If affrays on board ships, arising from sudden quarrels, are to forfeit wages, forfeitures would be very common indeed.

It is a mistake, frequently entertained by owners and masters of ships, that broils, assaults on, or resistance to masters (produced most commonly by Their affrays faults on both sides) forfeit wages. Such offences are improper are often improperly called mutiny or revolt; but tiny or revolt. they do not amount to this offence, which is defined by our statute, and declared to be a capital crime, and punishable with death. They may be, when the fact justifies the conclusion, evidence of

ly called mu

their subjects, in whatever country they committed offences, cognizance was not taken by their ordinary courts. A court, consisting of the admiral and constable, had cognizance in cases of offences committed by British subjects beyond seas. This court is obsolete by non user; but the jurisdiction remains among the powers of admiralty and maritime cognizance; though it is not exercised in modern times. Its existence is only suspended not destroyed. Civilians (Domat, &c.) have asserted this jurisdiction in other countries.-No case of the actual exercise of this authority was produced.

It was further contended, that the constitution having given to congress, and they having assigned, by the 11th section of the judiciary act, the jurisdiction contended for, the court is legally invested therewith. If it be not within admiralty and maritime jurisdiction (in which no distinction appears in the constitution between civil and criminal cases) congress have no power to legislate in the case; and so such heineous offences must go unpunished, when attended with circumstances like those of the present transaction.

It was replied by the defendant's counsel (Mr. Ingersol), that the 8th section of the act relating to crimes (and not the

SEAMEN'S WAGES.

intent, or overt acts, furnishing ingredients for this crime. But in general, they are merely the intemperate effects of personal animosities, sudden passion, the pride of power, and the sourness of reluctant obedience, or mulish resistance.

It is the duty of seamen to bear even the illtemper of the master, and to get out of his way, when instances of passion occur. Some of the maritime laws are particular in adjusting how a mariner shall demean himself when the master is enraged, and when he may stand on his defence.

a Consulato del mare, 16. Sea laws, 139, 140.

11th section of the judiciary act) is explanatory and decisive, being subsequent to the judiciary act. The only enquiry under this section is, whether murder was committed on the "high seas," and as the stroke and death must be in the same place to fix jurisdiction, and both were not, though one was, “ on the high seas," as they should have been, to warrant the court's taking cognizance in this case, and the cause is coram non judice, &c.

The court agreed in the general result, though judge Peters gave no opinion as to the general powers included in the words "admiralty and maritime jurisdiction." Judge Washington declared that no cognizance was given, over offences committed on land in foreign parts, by these words; but both judges agreed that the stroke and death must occur on the “high seas” to warrant the jurisdiction of this court. It was also agreed by the court-That congress might define the offence, and fix the punishment, if either substantial ingredient happened on the "high seas." They might declare it capital, and punishable as murder, if the stroke, with malice and intent to kill, was given on the "high seas," and the death, in consequence, occurred on land. And so vice versâ.

The defendant was bound over to answer at the next court, to a charge of assault and battery, &c. Dallas, attorney of the U. S. Ingersol and Jos. Reed, for the defendant.