BETTS, District Judge.
Tbe whole amount of wages earned not having been paid, the defence to the action is put upon two grounds: (1) An absolute forfeiture of the wages; and (2) that no right of action existed at the time the suit was commenced. Admitting that the penalty of the act may be applied to a case of absence without leave in the port of destination and after the vessel has been moored, (which point is not now considered.) it seems to me that the specific proof required by the act to entitle the claimants to a forfeiture of wages is not supplied. The act provides, that if any seaman who has signed articles shall absent himself, without leave, and a proper entry shall be made thereof in the log-book, on the same day, &c., and the absence continues more than forty-eight hours at one time, he shall forfeit his wages, &c. It seems to me, that the act designates the only case in which a forfeiture of wages, eo nomine, must be inflicted by the court, and thus far qualifies the punishments awarded under the law maritime for various acts of mal-conduct on the part of sailors, that of desertion included. Judge Story, in his note to Abb. Shipp. (Ed. 1829) p. 4CS, sums up the effect of the decisions upon this provision of the statute. To lay a foundation for the forfeiture of wages, under the statute, the entry must strictly conform to the terms of the act. The absence must be stated to have been without leave, and to have continued more than forty-eight hours, and the entry must be made in the log-book on the day the mariner absents himself. No other proof will supply either of these ómissions. The de-fence on this point accordingly rests on the question, whether, in fact, the libellants were logged, as it is termed, on the same day they left the ship, and charged with absenting themselves without leave; and whether such entry was made forty-eight hours previous to their being dismissed by the master.
Those of the libellants who are charged with having deserted the vessel, and thus forfeited their wages, are Charles Matthews, Abraham Estrom and John Harrison. I thing the evidence produced does not make out the fact of desertion, according to the requirement of the statute. The only explicit entry affecting the libellants, is that of December 2fith in relation to Charles Matthews, and that of January 7th in relation to the three above named. The first entry may have been sufficient in form, but the succeeding entries show that Matthews did not continue absent forty-eight hours, and no more could be effected by this entry, if good proof, than a deduction of wages for the time of his absence. The last entry is deficient in one important requisite, as it does not purport to have been made on the same day the seamen absented themselves. It rehearses the fact that they were absent without permission, but would seem to have reference, as to two of them, to the entry of the 31st of December, to denote the time and manner of such absence. That entry is, that nothing had been seen of the three men who left during the day. The reference to the previous mention of their names may be sufficient to indicate, with all necessary certain'ty, Matthews and Estrom as those intended. The reading of the two entries then would be, that Charles Matthews and Abraham Estrom left the vessel during the 31st of December, and were still absent, without permission, on the 7th of January. This is not that positive and distinct assertion, by an entry made at the time of absence, which is demanded by the act and recognised by the decisions as requisite to fix a forfeiture of wages on the seaman, even if the terms “without permission” may avail the claimants the saíne as the statutory phrase “without leave.” The entry was not made on the day the act was done, and does not assert that the libellants absented themselves without leave, but equally admits the construction that it was the continuation of the absence, and not its inception, that was without permission. The entry of the 6th of January, in respect to Harrison, is equivocal and insufficient in two respects: first, it is uncertain whether his simply going away, or his going away with the carpenter’s tools, was against the orders of the mate; and, secondly, the log-book does not aver that he was absent without leave, but only without leave of the mate, even if the entry of his going against orders is to be taken as asserting that he went without leave. The proofs in such a case should show that the authority over the vessel and the men was, at the time, with the mate; otherwise, a special entry in this form would leave room for an implication that the saiior had leave of absence from some other officer. But. without pressing this criticism upon the terms of the entry, the entry is not in substance of a character to produce a forfeiture of wages. It does not purport to charge the man with absenting himself from the ship without leave, but with disobedience of the orders of the mate in going ashore. The mate may have forbidden his going, though he had previous leave from competent authority. The entry of the 7th of January, for the reasons before given,, is not sufficient to subject Harrison to a forfeiture of wages. The mate testifies, that on Wednesday, the Cth of January, at furthest, (and he is not certain but it might have been on Tuesday, the 5th,) the other two libellants offered to unload the cargo, but the master refused to receive them, or to have anything further to do with them. This act of the master, therefore, destroys, as to them, all the efficacy of the entries in the log subsequent to that day. [976]*976There is cot, then, as against either of the libellants, proof that they were absent from the vessel without leave for forty-eight hours after being logged, even if the entry had been made in the manner required by law, and a forfeiture of wages cannot be enforced against them. As the claimants insist upon the enforcement of the inflexible punishment of a forfeiture of wages for the offence charged upon the crew, it is no more than meet that, in obtaining such penalty, they should, on their part, be held to conform their proof to the strictest letter of the law.
It is unnecessary to consider how far the conduct of the libellants might subject them to punishment, by diminution of wages, for an infraction of the law maritime, because no equitable indemnity is sought by the owners for that cause. The whole defence is, that the libellants were guilty of the desertion which carried with it the penalty inflicted by the statute. It is not claimed in the answer that the libellants have, by disobedience of orders, unwarrantable absence from the ship, or neglect of duty, rendered themselves liable to make good the damages sustained by the claimants, or exposed themselves to such punishment as the court may, in its discretion, under the rules of the maritime law, in respect to acts of malfeasance or nonfeasance on the part of sailors, see fit to impose — such as an adequate mulct or abstraction of wages, because of a breach of contract or an omission to perform the duties enjoined by law. On the contrary, an absolute forfeiture is insisted on, upon the ground that the statutory offence has been committed and that the statutory punishment must follow. I shall accordingly hold, upon this branch of the defence, that the necessary proof, as required by the statute, has not been produced on the part of the claimants, to subject the libellants to a forfeiture of wages.
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BETTS, District Judge.
Tbe whole amount of wages earned not having been paid, the defence to the action is put upon two grounds: (1) An absolute forfeiture of the wages; and (2) that no right of action existed at the time the suit was commenced. Admitting that the penalty of the act may be applied to a case of absence without leave in the port of destination and after the vessel has been moored, (which point is not now considered.) it seems to me that the specific proof required by the act to entitle the claimants to a forfeiture of wages is not supplied. The act provides, that if any seaman who has signed articles shall absent himself, without leave, and a proper entry shall be made thereof in the log-book, on the same day, &c., and the absence continues more than forty-eight hours at one time, he shall forfeit his wages, &c. It seems to me, that the act designates the only case in which a forfeiture of wages, eo nomine, must be inflicted by the court, and thus far qualifies the punishments awarded under the law maritime for various acts of mal-conduct on the part of sailors, that of desertion included. Judge Story, in his note to Abb. Shipp. (Ed. 1829) p. 4CS, sums up the effect of the decisions upon this provision of the statute. To lay a foundation for the forfeiture of wages, under the statute, the entry must strictly conform to the terms of the act. The absence must be stated to have been without leave, and to have continued more than forty-eight hours, and the entry must be made in the log-book on the day the mariner absents himself. No other proof will supply either of these ómissions. The de-fence on this point accordingly rests on the question, whether, in fact, the libellants were logged, as it is termed, on the same day they left the ship, and charged with absenting themselves without leave; and whether such entry was made forty-eight hours previous to their being dismissed by the master.
Those of the libellants who are charged with having deserted the vessel, and thus forfeited their wages, are Charles Matthews, Abraham Estrom and John Harrison. I thing the evidence produced does not make out the fact of desertion, according to the requirement of the statute. The only explicit entry affecting the libellants, is that of December 2fith in relation to Charles Matthews, and that of January 7th in relation to the three above named. The first entry may have been sufficient in form, but the succeeding entries show that Matthews did not continue absent forty-eight hours, and no more could be effected by this entry, if good proof, than a deduction of wages for the time of his absence. The last entry is deficient in one important requisite, as it does not purport to have been made on the same day the seamen absented themselves. It rehearses the fact that they were absent without permission, but would seem to have reference, as to two of them, to the entry of the 31st of December, to denote the time and manner of such absence. That entry is, that nothing had been seen of the three men who left during the day. The reference to the previous mention of their names may be sufficient to indicate, with all necessary certain'ty, Matthews and Estrom as those intended. The reading of the two entries then would be, that Charles Matthews and Abraham Estrom left the vessel during the 31st of December, and were still absent, without permission, on the 7th of January. This is not that positive and distinct assertion, by an entry made at the time of absence, which is demanded by the act and recognised by the decisions as requisite to fix a forfeiture of wages on the seaman, even if the terms “without permission” may avail the claimants the saíne as the statutory phrase “without leave.” The entry was not made on the day the act was done, and does not assert that the libellants absented themselves without leave, but equally admits the construction that it was the continuation of the absence, and not its inception, that was without permission. The entry of the 6th of January, in respect to Harrison, is equivocal and insufficient in two respects: first, it is uncertain whether his simply going away, or his going away with the carpenter’s tools, was against the orders of the mate; and, secondly, the log-book does not aver that he was absent without leave, but only without leave of the mate, even if the entry of his going against orders is to be taken as asserting that he went without leave. The proofs in such a case should show that the authority over the vessel and the men was, at the time, with the mate; otherwise, a special entry in this form would leave room for an implication that the saiior had leave of absence from some other officer. But. without pressing this criticism upon the terms of the entry, the entry is not in substance of a character to produce a forfeiture of wages. It does not purport to charge the man with absenting himself from the ship without leave, but with disobedience of the orders of the mate in going ashore. The mate may have forbidden his going, though he had previous leave from competent authority. The entry of the 7th of January, for the reasons before given,, is not sufficient to subject Harrison to a forfeiture of wages. The mate testifies, that on Wednesday, the Cth of January, at furthest, (and he is not certain but it might have been on Tuesday, the 5th,) the other two libellants offered to unload the cargo, but the master refused to receive them, or to have anything further to do with them. This act of the master, therefore, destroys, as to them, all the efficacy of the entries in the log subsequent to that day. [976]*976There is cot, then, as against either of the libellants, proof that they were absent from the vessel without leave for forty-eight hours after being logged, even if the entry had been made in the manner required by law, and a forfeiture of wages cannot be enforced against them. As the claimants insist upon the enforcement of the inflexible punishment of a forfeiture of wages for the offence charged upon the crew, it is no more than meet that, in obtaining such penalty, they should, on their part, be held to conform their proof to the strictest letter of the law.
It is unnecessary to consider how far the conduct of the libellants might subject them to punishment, by diminution of wages, for an infraction of the law maritime, because no equitable indemnity is sought by the owners for that cause. The whole defence is, that the libellants were guilty of the desertion which carried with it the penalty inflicted by the statute. It is not claimed in the answer that the libellants have, by disobedience of orders, unwarrantable absence from the ship, or neglect of duty, rendered themselves liable to make good the damages sustained by the claimants, or exposed themselves to such punishment as the court may, in its discretion, under the rules of the maritime law, in respect to acts of malfeasance or nonfeasance on the part of sailors, see fit to impose — such as an adequate mulct or abstraction of wages, because of a breach of contract or an omission to perform the duties enjoined by law. On the contrary, an absolute forfeiture is insisted on, upon the ground that the statutory offence has been committed and that the statutory punishment must follow. I shall accordingly hold, upon this branch of the defence, that the necessary proof, as required by the statute, has not been produced on the part of the claimants, to subject the libellants to a forfeiture of wages. I am the more ready to exact a strict compliance, on the part of the master, with the rule prescribing the manner in which the entry of absence shall be made in order to be evidence of desertion, because it most manifestly appears that the seamen were on inquiry as to their rights, and had not wilfully abandoned the vessel with the design of desertion. They did not intend to leave her, unless they were legally acquitted of their agreement. If this will not entirely exonerate them under the maritime law, it may at least be rightfully regarded, in a court of admiralty, as mitigating the offence, and taking from it the character of wilful desertion. Abb. Shipp. (Ed. 1S29) 404. note. They presented themselves every day on board, and evinced no intention to commit a wilful violation of their contract or duties. The officers also seem to have impliedly acquiesced in the propriety of the seamen’s proceedings, inasmuch as no steps were taken 10 enforce their obedience to the service asked of them.
The other branch of the defence is, that no right of action existed at the time this suit was instituted. The period of service contracted for by the articles had not expired by lapse of time. The libellants contend, that the true meaning of the articles is, that the contract continued until the arrival of the vessel at her port of delivery in the United States; that she might make one or more ports before reaching that of her final delivery; but that the whole run must be accomplished within the period of six months. The claimants contend, that the term of service was to last for six months, and did not expire when the vessel reached the United States, or, if it did, that the libellants were bound to discharge the cargo, and could not prosecute for their wages until the expiration of ten days after the safe mooring and unlading of the vessel. The libellants also show a deviation from the voyage mentioned in the articles, to Maracaibo, on the Main, and claim that this absolved them from their agreement, and gave them a right to their discharge and pay on the entrance of the vessel into this port. The view I take of the evidence will render it unnecessary to discuss the meaning of the agreement in the articles, or to consider what effect a deviation like the one here set up might have upon the mariner’s contract. Because, as it seems to me, the libellants show that they were discharged from the vessel after her arrival in this port. After such discharge, a mariner’s connection with his vessel and his obligation under his contract are terminated, and he may at once recover wages then due. The libellants swear, that as soon as the vessel was made fast, the mate gave them leave to go ashore, making at the same time declarations which might well be taken as a discharge, if the proof of them were clear. This, however, is denied by the mate, and higher credit is to be given to his testimony, in this case, as to his own declarations. Still, the conduct of the master for several succeeding days, in not requiring the men to go to their duty, though they were in the habit of coming on board the vessel every day, might import that he understood they were discharged and meant they should so understand it There is room for doubt, however, whether the discharge was absolute, and one of which the libellants can avail themselves, previous to the Cth of January, when the captain sent them off, telling them he should have nothing more to do with them. This was but three days before the suit was commenced, and had the point of discharge been made a subject of controversy at the hearing, I should have felt disposed to direct further proofs to be taken Upon it. This point may have been fully litigated on showing cause before the magistrate, before issuing process against the vessel, and his decision may have been satisfactory to the parties, especially as it appears by the proofs that the cargo was discharged on the 2d of January, and that on the 12th, [977]*977when the mate was examined, the brig was about to proceed to Boston. Although this point is open upon the pleadings, and the claimants are authorized to raise the objection and demand the judgment of the court upon it, yet the court may be satisfied with less evidence than if it had been the leading point in contestation before the magistrate on the summons, or on the hearing here.
NOTE [from original report]. This decree was reversed on appeal by the circuit court, in December, 1830. on two grounds, as it is understood: 1st. That the contract did not terminate with the arrival and discharge of the tessel at her last port of destination, but was for six months certain: 2d. That the statutory penalty of forfeiture applied to an unlawful absence of a seaman from his vessel for forty-eight hours, if proved according to the general ■ules of evidence.
When the contract is terminated, the right to wages becomes perfect in the' seamen. The contract need not end by the fulfillment of its terms. A discharge of the seamen by the master, or a constructive discharge by breaking up the voyage, will entitle them to demand payment of their wages. Abb. Shipp. (Ed. 1829) 442, note. The proofs satisfy me that the men were allowed to leave the service by the master, and, therefore, the defence that the right of action had not accrued when the suit was brought, cannot be maintained. Accordingly, I decree for wages and costs, with the usual reference to the clerk to ascertain the amount due, and report thereon to the court. Decree accordingly.