HOPKINSON, District Judge.
By the third ■ section of the act of congress of 28th February, 1803 (2 Stoiy’s Laws, 883 [2 Stat. 203]), it is enacted “that whenever a ship or vessel belonging to a citizen of the United States shall be sold in a foreign country, and her company discharged; or when a seaman or mariner, a citizen of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master to produce to the consul, the list of the ship’s company," and “to pay to such consul, for every seaman three months’ pay over and above the wages which maybedue him; two thirds thereof to be paid by such consul to each seaman or mariner so discharged, upon his engagement on board of any vessel to return to the United States, and the other remaining third to be retained to create the fund” therein named. The object and policy of this enactment seems to be, not only to provide the means of the return of every American seaman to the United States, but to induce him to return, by making his engagement on board of a vessel to return to the United States, a condition upon which he is to receive his two thirds of the rliroe months’ wages paid to the consul. By the plain terms of the law, too, this money [991] is to be paid by the master to the consul in the foreign port, who is made the trustee or agent of the United States, as to one third part of the amount paid to him, and of the seaman as to the other two thirds; and it is his duty to account to each of these parties for their respective proportions. It is also to be observed, that the part reserved for the United States is appropriated, by the act, to the “purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, Mho may be desirous of returning to the United States, and for the maintenance of American seamen who may be destitute, and may be in a foreign port.” The act further directs, that the sums thus retained for this fund, shall be accounted for with the treasury every six months. Thus it would seem, that not only the terms of the law, but the objects to be attained by it. to wit, the return of American seamen to their country, and their maintenance when found destitute in a foreign port, all require that this money shall be paid to the consul in the foreign port, where the seaman is discharged, and that no other payment or obligation to pay is recognised or created by the act.
I confess that this nrould be my opinion if the question came up in this case for the first time, and of course X should consider that no recovery of this additional sum could be had, cither from the master or the owner of a vessel here. The court would make itself a volunteer unauthorised trustee of a public fund, without any legal direction for the disposition of it. The case of Emerson v. Howland [supra], reported and recognised in Judge Story’s edition of Abbott on Shipping, (page 146,) has been cited to prove the right of recovery here from the owners of the vessel. It was. a suit in the admiralty against the owners of a ship for subtraction of wages. The facts were that the seaman was shipped at Norfolk on a voyage to Liverpool, and thence to one or more ports in Europe, and back to the United States. She arrived at Liverpool, and sailed for Archangel, and while on that voyage was captured by a Danish cutter. The ship was finally restored; but ten days before the restoration, the captain discharged all his crew, under the pretence that they refused to remain any longer, and either had deserted or intended to desert. The ship did sao;, pursue her voyage to Archangel, under the pretence that a suitable crew could not be obtained. She took in a cargo and went to Ireland, and thence to Liverpool, and from thence returned to the United States. The libellant received his discharge with the rest of the crew in Denmark, and the captain gave him a due bill for the amount of his wages up to that time. The claim was for wages to the time of the actual return of the ship to the United States, which was the termination of the voyage described in the articles. On the other side it was contended that the seaman was entitled to wages only to the time of his discharge. By- this statement of the case, it appears that no question under the act of congress of 2Sth February, 1808, was involved in it. Nothing was demanded under that act; the circumstances did not bring it within the act. It does not appear that tire seaman was discharged by his own consent. It is said that the captain discharged the crew under the pretence that they would desert. The expression implies that this was not the real cause, and without it there is no pretence of any consent on the part of the seamen to their discharge. This charge of insubordination, at least so far as it concerned the libel-lant, was repudiated by the certificate given by the captain at the time of his discharge, in which he speaks with approbation of his conduct, and states that he has been captured, and was under the necessity of discharging him. This necessity in the common understanding of the language, would be referred to the capture, and not to any menace of desertion on the part of the seaman. In this respect, therefore, that case did not fall under the provisions of the act of congress; nor did the claim of the libellant so consider it. The three months’ additional wages were not demanded, but only what W'as considered to be due under, and by virtue of the contract, to wTit, full wages to the end of the voyage.
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HOPKINSON, District Judge.
By the third ■ section of the act of congress of 28th February, 1803 (2 Stoiy’s Laws, 883 [2 Stat. 203]), it is enacted “that whenever a ship or vessel belonging to a citizen of the United States shall be sold in a foreign country, and her company discharged; or when a seaman or mariner, a citizen of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master to produce to the consul, the list of the ship’s company," and “to pay to such consul, for every seaman three months’ pay over and above the wages which maybedue him; two thirds thereof to be paid by such consul to each seaman or mariner so discharged, upon his engagement on board of any vessel to return to the United States, and the other remaining third to be retained to create the fund” therein named. The object and policy of this enactment seems to be, not only to provide the means of the return of every American seaman to the United States, but to induce him to return, by making his engagement on board of a vessel to return to the United States, a condition upon which he is to receive his two thirds of the rliroe months’ wages paid to the consul. By the plain terms of the law, too, this money [991] is to be paid by the master to the consul in the foreign port, who is made the trustee or agent of the United States, as to one third part of the amount paid to him, and of the seaman as to the other two thirds; and it is his duty to account to each of these parties for their respective proportions. It is also to be observed, that the part reserved for the United States is appropriated, by the act, to the “purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, Mho may be desirous of returning to the United States, and for the maintenance of American seamen who may be destitute, and may be in a foreign port.” The act further directs, that the sums thus retained for this fund, shall be accounted for with the treasury every six months. Thus it would seem, that not only the terms of the law, but the objects to be attained by it. to wit, the return of American seamen to their country, and their maintenance when found destitute in a foreign port, all require that this money shall be paid to the consul in the foreign port, where the seaman is discharged, and that no other payment or obligation to pay is recognised or created by the act.
I confess that this nrould be my opinion if the question came up in this case for the first time, and of course X should consider that no recovery of this additional sum could be had, cither from the master or the owner of a vessel here. The court would make itself a volunteer unauthorised trustee of a public fund, without any legal direction for the disposition of it. The case of Emerson v. Howland [supra], reported and recognised in Judge Story’s edition of Abbott on Shipping, (page 146,) has been cited to prove the right of recovery here from the owners of the vessel. It was. a suit in the admiralty against the owners of a ship for subtraction of wages. The facts were that the seaman was shipped at Norfolk on a voyage to Liverpool, and thence to one or more ports in Europe, and back to the United States. She arrived at Liverpool, and sailed for Archangel, and while on that voyage was captured by a Danish cutter. The ship was finally restored; but ten days before the restoration, the captain discharged all his crew, under the pretence that they refused to remain any longer, and either had deserted or intended to desert. The ship did sao;, pursue her voyage to Archangel, under the pretence that a suitable crew could not be obtained. She took in a cargo and went to Ireland, and thence to Liverpool, and from thence returned to the United States. The libellant received his discharge with the rest of the crew in Denmark, and the captain gave him a due bill for the amount of his wages up to that time. The claim was for wages to the time of the actual return of the ship to the United States, which was the termination of the voyage described in the articles. On the other side it was contended that the seaman was entitled to wages only to the time of his discharge. By- this statement of the case, it appears that no question under the act of congress of 2Sth February, 1808, was involved in it. Nothing was demanded under that act; the circumstances did not bring it within the act. It does not appear that tire seaman was discharged by his own consent. It is said that the captain discharged the crew under the pretence that they would desert. The expression implies that this was not the real cause, and without it there is no pretence of any consent on the part of the seamen to their discharge. This charge of insubordination, at least so far as it concerned the libel-lant, was repudiated by the certificate given by the captain at the time of his discharge, in which he speaks with approbation of his conduct, and states that he has been captured, and was under the necessity of discharging him. This necessity in the common understanding of the language, would be referred to the capture, and not to any menace of desertion on the part of the seaman. In this respect, therefore, that case did not fall under the provisions of the act of congress; nor did the claim of the libellant so consider it. The three months’ additional wages were not demanded, but only what W'as considered to be due under, and by virtue of the contract, to wTit, full wages to the end of the voyage.
On the conclusion of the argument by the counsel of the parties, Judge Story, before he decided the. case, which he reserved for further consideration, threw out this observation; “In future, where seamen are discharged in a foreign port. I shall decree against the owners the whole of the three months’ wuges, authorised and required to be paid by the statute of 28th February, 1803. The.practice has heretofore been to allow only the two months’ wages which belong to the mariner. But the owner ought not to be in a better situation than if he had complied with the terms of the law; and it is the duty of the court to see that it is enforced. The additional month’s wages will not, however, be paid over to the mariner, but retained in the registry for the use of the United States, to be applied according to the regulations of the statute.” There is certainly not the cautious discrimination in the terms of this declaration, struck off in the course of a trial, which char-acterises the deliberate opinions of this learned judge. He says, “whenever a seaman is discharged in a foreign port,” he will give the additional three months’ wages, two of them to the seaman,' and r the third to the United States. But assuredly he would inquire whether the discharge is such a one as is expressly described in the act of congress; that is, “with the consent of the seaman.” He would not, as his language imports, in every case of a discharge in a foreign port, without inquiry for what cause it was done, apply the remedy of the act of congress, which is given only to a discharge of a specified description, leaving the seaman to his ordinary rights and remedies for a discharge of another description. The judge says, that in a future case he [992] would so decree; but no such decree appears to have been made by him, unless it may be found in the manuscript case in the Massachusetts circuit court, referred to iu Abbott on Shipping, but not reported. In a note to his-last edition of that work (page 443.) the judge again repeats his opinion, or declaration, made in the case of Emerson v. Howland [supra]. He adds; “But it has been decided that a seaman cannot recover, in a suit at common law, the whole or any part;" and he cites the case of Ogden v. Orr, 12 Johns. 143. Before I turn to that case I will remark, that I presume there can be no difference between theduty of a common law and an admiralty court, in the construction of an act of congress. The object of both courts must be the same, to understand the law truly, as it was intended by the legislature, and to execute it according to that understanding. The case of Ogden v. Orr, in the supreme court of New York, wa.s an action of assumpsit, for wages claimed by the plaintiff, as a seaman, and also for a breach of the shipping articles. The plaintiff had been discharged from the ship at Lisbon, and his demand was founded on the act of congress we have referred to. The plaintiff had left the vessel voluntarily, and with the master’s consent, and had received his wages to the time of his discharge. The inferior court had given judgment for the plaintiff; but the supreme court thought there was an error in the construction of the act of congress. After reciting the statute, the court proceeds; “Assuming that the plaintiff below was discharged with his own consent, the question is, whether he can maintain an action for his two ihirds of the three months’ wages required, in such cases, to be paid by the master. The act directs it to be paid to the consul; it •creates no obligation on the master to pay it to the seaman; and the policy of the law seems to have been, that the money shall pass through the hands of the consul, who is made, in some measure, the guardian of American seamen in foreign parts, for the purpose of protecting their rights, and relieving their wants. This three months’ pay was intended as a kind of penalty, and to create a fund for a benevolent purpose. It is likewise taking from the consul a commission to which he is entitled by the act. Besides, this is a suit against the owner, and not against the master of the vessel.” This judgment of the supreme court of New iork was rendered in January, 1815; the dictum of Judge Story •was delivered in May, 181G. It is probable that the case of Ogden v. Orr was not then known to the circuit court of Massachusetts. It does not appear to have been noticed either by the counsel or the court; and the volume containing it was not published until some time in 181G.
With these views of the subject it would be my duty to dismiss this libel, if the case did not present itself to the court under the protection of a judge who is entitled to high respect from every court, and especially upon a question of the description of that now under consideration. I am always unwilling, to disturb such opinions, although they do not come in the shape or with the authority of judicial judgments. It is very desirable that an uniformity of decision, particularly on the-construction of acts of congress, should prevail in the courts of the United States; and to-this object I would yield much of my own opinions. If the dictum of Judge Story maybe thought to have been hastily thrown out, yet we find he holds to it in the notes in his edition of Abbott on Shipping, already cited, (pages 145, 443.) I cannot but hesitate to-oppose myself, without a more deliberate examination of the question, to this learned and enlightened judge, and therefore have reluctantly determined to sustain this suit; but, at the same time, I shall not hold myself to be bound by this decree, if at any future time, on a more full argument, or by my own more-mature deliberation, I shall find my own impressions of the law to become deeper and stronger. As to the facts of the case, it is clear to me that no such necessity existed for breaking up the voyage and discharging the crew, as will take from it the character of voluntary discharge. The vessel was not greatly damaged by going on shore; or, certainly not so much so but that she might have readily been put in a condition to proceed on. her voyage.
Decree: That the three months' wages be paid by the respondent; two thirds thereof to be paid to the libellant, Joseph Bool, and one third for the use of the United States, with, costs.