THOMPSON, Circuit Justice.
This cause-comes up on appeal from a decree of the-district court, by which the respondents were allowed the amount of wages claimed for services as seamen, on board the brig Cadmus. This claim was resisted by the appellants on two grounds: 1. That the voyage had not terminated when the proceedings were commenced; and, 2. That the seamen had forfeited their wages. The voyage as described in the shipping articles, is, “From the port of Boston to port or ports in the West Indies, and back to port or ports in the United States, one or more times, for [978] and during the term of six months, from the 25th day of September, 1S29.”
This suit was commenced before the expiration of the six months, on the ground that the seamen were discharged from their contract, either actually by the master, or by operation of law by reason of an alleged deviation. The deviation set up in the libel is, that from St. Thomas, in the West Indies, the voyage was continued to Maracaibo on the Spanish Main, before returning to the United States. The answer denies that this is any deviation, but alleges that Maracaibo is a port in the West Indies, within the meaning of the shipping articles, and is so considered by nautical and mercantile men conversant with voyages to the West Indies. The case was left upon these allegations in the pleadings, without any proofs on the one side or the other, and the district court pronounced no opinion upon the point. It was a question px-operly open to proof, and not one which the court can decide as matter of law; it is a question relating to usage and the course of trade, and is to be determined as a question of fact upon the evidence introduced by the parties, and cannot be judicially noticed by the court as a question of law. I am not, therefore, called upon to decide this question, as it seems to have been waived by the libellants, and passed by without any opinion expressed by the district court.
The questions upon which the cause turned in the court below were, that in point of fact the seamen were discharged by the master in the port of New York, before the expiration of the six months, and that they had not, by anything that had taken place, forfeited their wages. If the seamen were discharged by the master in the port of New York, there can be no doubt but that a right of action accrued immediately, and they were not bound to wait until the expiration of six months. It becomes an important point, therefore, to inquire how the evidence stands upon this question; and the bearing of this evidence will be bettor understood by seeing what are the allegations in the libel with respect to the voyage for which the seamen shipped, and the discharge set up by them. The libel describes the voyage to be ■“from the port of Boston to St. Thomas, from thence to Wilmington, N. 0.. from thence to ■one or more ports in the West Indies, and from thence back to a port in the United States.” And it is then alleged, that the ■Cadmus arrived in the port of New York on the 25th day of December, in the same year, and that three of the libellants. Matthews, Estrom and Smith, were on the same day discharged; and that Harrison was discharged on the second day of January thereafter. It is very evident that the proctor who drew this libel had not the shipping articles before him, or he would not have so misdescribed the voyage: and from the testimony of some of the seamen, it is equally clear that they had forgotten or were ignorant of the voyage for which they shipped. The libel appears to be shaped on the assumption that the voyage ended on the return of the vessel to a port in the United States, and such would seem to have been the understanding of the seamen; and that the question first raised by the seamen was, whether they were bound to unlade the cargo before they were entitled to their discharge, and not-whether they were bound to remain the six months, according to the shipping articles. And the libel accordingly alleges the discharge, in fact, on the very day the brig arrived in New York. The evidence, however, is entirely insufficient to support this allegation, and it was not relied upon by the district court; but the discharge is placed upon what took place at a subsequent day. The evidence in support of the alleged discharge on the 25th of December, is, that several of the seamen swear, that, whilst they were making the vessel fast, the captain told the mate that when he had made her fast, he should let the men go ashore; and that after they had made her fast, the mate told the men they might go ashore and go to hell, if they liked. This language, although extremely reprehensible in the mate, could not have been intended by him. or understood by the seamen, as a general discharge from the brig. The order of the captain to the mate was given in then1 hearing, and must have been understood by them as a mere permission to go ashore for a short time, according to the usual practice on the arrival of a vessel in port; and the whole conduct of the seamen afterwards shows that such was their understanding of the permission. But it is unnecessary to pursue the evidence on this point, as it was disregarded by the court below, and has not been relied upon by the respondents in this court.
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THOMPSON, Circuit Justice.
This cause-comes up on appeal from a decree of the-district court, by which the respondents were allowed the amount of wages claimed for services as seamen, on board the brig Cadmus. This claim was resisted by the appellants on two grounds: 1. That the voyage had not terminated when the proceedings were commenced; and, 2. That the seamen had forfeited their wages. The voyage as described in the shipping articles, is, “From the port of Boston to port or ports in the West Indies, and back to port or ports in the United States, one or more times, for [978] and during the term of six months, from the 25th day of September, 1S29.”
This suit was commenced before the expiration of the six months, on the ground that the seamen were discharged from their contract, either actually by the master, or by operation of law by reason of an alleged deviation. The deviation set up in the libel is, that from St. Thomas, in the West Indies, the voyage was continued to Maracaibo on the Spanish Main, before returning to the United States. The answer denies that this is any deviation, but alleges that Maracaibo is a port in the West Indies, within the meaning of the shipping articles, and is so considered by nautical and mercantile men conversant with voyages to the West Indies. The case was left upon these allegations in the pleadings, without any proofs on the one side or the other, and the district court pronounced no opinion upon the point. It was a question px-operly open to proof, and not one which the court can decide as matter of law; it is a question relating to usage and the course of trade, and is to be determined as a question of fact upon the evidence introduced by the parties, and cannot be judicially noticed by the court as a question of law. I am not, therefore, called upon to decide this question, as it seems to have been waived by the libellants, and passed by without any opinion expressed by the district court.
The questions upon which the cause turned in the court below were, that in point of fact the seamen were discharged by the master in the port of New York, before the expiration of the six months, and that they had not, by anything that had taken place, forfeited their wages. If the seamen were discharged by the master in the port of New York, there can be no doubt but that a right of action accrued immediately, and they were not bound to wait until the expiration of six months. It becomes an important point, therefore, to inquire how the evidence stands upon this question; and the bearing of this evidence will be bettor understood by seeing what are the allegations in the libel with respect to the voyage for which the seamen shipped, and the discharge set up by them. The libel describes the voyage to be ■“from the port of Boston to St. Thomas, from thence to Wilmington, N. 0.. from thence to ■one or more ports in the West Indies, and from thence back to a port in the United States.” And it is then alleged, that the ■Cadmus arrived in the port of New York on the 25th day of December, in the same year, and that three of the libellants. Matthews, Estrom and Smith, were on the same day discharged; and that Harrison was discharged on the second day of January thereafter. It is very evident that the proctor who drew this libel had not the shipping articles before him, or he would not have so misdescribed the voyage: and from the testimony of some of the seamen, it is equally clear that they had forgotten or were ignorant of the voyage for which they shipped. The libel appears to be shaped on the assumption that the voyage ended on the return of the vessel to a port in the United States, and such would seem to have been the understanding of the seamen; and that the question first raised by the seamen was, whether they were bound to unlade the cargo before they were entitled to their discharge, and not-whether they were bound to remain the six months, according to the shipping articles. And the libel accordingly alleges the discharge, in fact, on the very day the brig arrived in New York. The evidence, however, is entirely insufficient to support this allegation, and it was not relied upon by the district court; but the discharge is placed upon what took place at a subsequent day. The evidence in support of the alleged discharge on the 25th of December, is, that several of the seamen swear, that, whilst they were making the vessel fast, the captain told the mate that when he had made her fast, he should let the men go ashore; and that after they had made her fast, the mate told the men they might go ashore and go to hell, if they liked. This language, although extremely reprehensible in the mate, could not have been intended by him. or understood by the seamen, as a general discharge from the brig. The order of the captain to the mate was given in then1 hearing, and must have been understood by them as a mere permission to go ashore for a short time, according to the usual practice on the arrival of a vessel in port; and the whole conduct of the seamen afterwards shows that such was their understanding of the permission. But it is unnecessary to pursue the evidence on this point, as it was disregarded by the court below, and has not been relied upon by the respondents in this court.
The discharge relied upon by the district court, and which has been pressed upon the argument of the case here, is inferred from what took place on the 6th or 7th oí January. It does appear from the testimony of several of the seamen, that the captain did declare to Matthews, Smith and Estrom. that he had nothing more to do with them; that he did not know them any more than men that never sailed with him. This, it will be perceived, was eleven or twelve days after the arrival of the brig; and to a right understanding of the force and effect of this declaration of the captain, we must look at the attending circumstances, and what had previously taken place between the captain and the seamen, with respect to their refusing to do duty on board the brig. These three men had done no duty on board the vessel after the 25th of December, the day of her arrival; although they were occasionally on board, and at some times intimated a willingness to assist in discharging the cargo, but utterly refused to do duty generally. Under these circumstances, and according to [979] ¿he testimony of Matthews, they came on board on the 6th or 7th of January, and told the mate they were willing to discharge the cargo. The captain was not on board, but soon after came, and the mate told him the men were willing to discharge the cargo: to .which the captain replied, that he had nothing more to do with them; that he did not know them any more than men that never sailed with him. The other two seamen state substantially the same thing, except that they do not state that the offer to work was confined to the unlading of the cargo. But the statement made by Matthews corresponds in this respect with that of the mate, who testifies that these three seamen had, some days before, been on board, and the captain asked them if they would go to their duty, and they said they would not; they then went away and remained until the day above mentioned, when he says they came on board and offered to discharge the cargo, but did not offer to do duty generally; that the captain was not on board, but soon after came, and then told them that he had given them every opportunity to return to their duty; that he had offered to receive them after they had been absent forty-eight hours or more, but that they had refused; and that now, having been absent four or five days, they might get along with it the best way they could, and that since that time they had not been on board. On his cross-examination, he states that when the captain told them they must do the best they could with it, one of the men asked, “Then you do not want us?” to which the captain replied, “No, I will have nothing more to do with you.” Under these circumstances, I cannot think that these declarations of the captain ought to be considered a discharge of the seamen from their contract as contained in the shipping articles. It is reasonably to be inferred from the conduct of these men, that they were ignorant of their engagement under the shipping articles, and that they considered their term of service ending at the port of New York, and that the only question with them was, whether they were bound to un-lade the cargo. After such a course of conduct, in violation of their duty, and the express terms of their contract, and after the cargo had been discharged, the reply of the •captain to the offer made by them to discharge the cargo, that he would have nothing more to do with them, can admit of no ■other reasonable construction than a declaration to them: “You have taken your stand; you have put yourselves upon what you consider your legal rights; you must do the best you can with it, I will have nothing more to do with you.” If this is a fair and reasonable conclusion from the evidence in the case, as I think it is, then nothing has taken place on the part of the captain that can be considered an absolute or constructive discharge of the seamen; and if they were not discharged, it follows, as matter of course, that no proceedings could be instituted by them for the recovery of wages until the expiration of the six months, according to the shipping articles. But it becomes important to inquire whether there was a forfeiture of wages by any or all of the respondents, or whether the present proceedings were only prematurely commenced.
I entirely concur in the opinion of the district judge, that the entry in the log-book, in order to lay the foundation for a forfeiture of wages under the act of congress, — 2 Bior. & D. Laws, 117 [1 Stat. 133], — must state substantially the absence to be w;thout leave; and that such entry must be made on the same day the seaman absented himself, that is, the entry can take effect only from the day when made. Such are the plain and explicit requirements of the act. The entry in the log-book on the 26th of January, as to two of the respondents, is as follows: “John Smith and Charles Matthews have been absent from the vessel during the day without permission.” This entry as to them is sufficient, and the forty-eight hours began to run from that day; and. the question is, whether they afterwards returned to their duty, so as to stop the time running against them, .and save the forfeiture. The evidence, independent of the log-book, is very conclusive to show that these men, although they came on board again within the forty-eight hours, absolutely refused to do duty. Was such appearance accompanied by a refusal to do duty, a return within the sense and meaning of the act? I think it was not. It cannot be necessary, in order to bring the case within the act, that the seaman should keep himself concealed and beyond the reach of the captain. If he presents himself on board the vessel, the master might probably have the right to cause him to do duty; but the law does not impose upon him the necessity of exercising force. He may rely upon the more mild and peaceable redress provided by the shipping articles, and the law applicable to the case; and I should say, generally speaking, when the vessel is in a home port, and the place of the seaman can be supplied, coercive measures had better be avoided. The absence contemplated by the act must mean a total withdrawing himself from his duty as a seaman. He is, in such case, as to every benefic’al purpose, absent. It appears to me to be inconsistent with the spirit and object of the act to permit the seaman to redeem the time, by appearing from day to day, and insulting or treating with contempt the authority of the captain. The return of the seaman, which shall save the forfeiture, is, according to the language of the act, a return to his duty within the forty-eight hours: and can it be said, that his personal presence, accompanied by an absolute refusal to do duty, is a return to his duty? This, it appears to me, involves an inconsistency that ought not to be allowed in the construction of the act; nor would it, in my judgment, have saved the forfeiture, if [980] these men had, within the forty-eight hours, returned and offered to discharge the cargo. Such a qualified return to duty would not have been a compliance with the law, the voyage for which they shipped not being ended. It should have been unconditional, and a return to duty generally. Not having been discharged by the captain their term of service had not expired, and they were then as much under obligation to do duty generally as at any time during the voyage. In the case of The Bulmer, 1 Hagg. Adm. 1C3, it was decided that a mariner had incurred a forfeiture of his wages by neglecting or refusing to return to his ship when required by the master, although previously absent by leave. In that case, the mariner had permission to leave the ship to perform some work for the British consul at Tangier, and refused to return when required by the captain. The defence to the claim of the mariner for <wages was, that this refusal to return to his duty constituted a desertion: and Lord Stowell observes, that the mariner, being absent by permission, was entitled to his wages, unless they were forfeited by his subsequent misconduct; that it does not appear that there was any specific mention of a return to the ship, but it belongs to the nature of the thing: he who retires under a permission, goes with the stipulation of a return when the ship requires him; and that the evidence was clear, that to the applications made to the mariner to return, his answers were a distinct refusal, and given in terms of reproach; and that he would not countenance the claim to wages. In this case, the mariner did not secrete himself; he was within reach of the master. But this did not save the forfeiture; that was incurred by a refusal to return to his duty when required. The same rule is laid down in Abbott on Shipping (page 463, by Story), that, if a mariner quit the ship with leave of the master, and when ordered to return, refuses to do so, his wages are forfeited. It is also stated by the same author, that desertion from the ship is held to be a forfeiture of wages previously earned, in all maritime countries (page 463); and the learned editor of that work, in a note to his last edition (page 463. note 1), says, it may be gen-erallj' stated that in America, independent of the act of congress, the general doctrine of the marine law, as to the nature and effect of desertion, has been uniformly recognized. It is uniformly held to incur the penalty of forfeiture of all wages antecedently due, and that to constitute a desertion, there must be a voluntary departure without reasonable cause.
With respect, therefore, to Matthews and Smith, their cases. I think, are brought within the act of congress, and that they have forfeited all claim to wages. With respect to the other respondents, their cases must be considered unaffected by any entries in the log-book. They are not included in the entry of the 26th of December; and all the other entries, down to the 7th of January, are defective, and not in compliance with the requisites of the act of congress: and this last entry must be laid out of view, having been made after the commencement of the proceedings in this case. I have looked with considerable attention, and not without some, wish, to find in the cases of the other two respondents, Estrom and Harrison, something upon which I might distinguish their cases from those already noticed, and protect them from an absolute forfeiture of their wages; but I have been unable to find any safe and satisfactory ground upon which to stand. They certainly appear in a less blamable point of light; and there is reason to conclude they were influenced by the bad example, if not by the persuasions of Matthews and Smith. They returned on board the morning after leave had been given them to go on shore and perform some trifling service, and seemed to manifest some disposition to return to their duty; for, on being told by the captain that they were not discharged, and that they must continue to do duty on board, they said they were perfectly satisfied. This was on Saturday; but on Monday morning Estrom came on board with Smith and Matthews, and the captain asked them if they would go to their duty, and they all said they would not, and went away, and did not afterwards return and offer to do duty, except on one occasion, when they offered to unlade the cargo; but even this was after it had been discharged: and although Harrison continued doing duty until the second of January, he then declared that he had found another vessel, and that he did not intend to do any more work on board, and left the vessel without leave of the captain or mate, and did not afterwards return to his duty. Here was, therefore, an abandonment of duly both by Estrom and Harrison, and a voluntary withdrawing or departure from the vessel without leave and without any reasonable cause, and which, according to the authorities I have referred to, constitute a desertion under the marine law, and work a forfeiture of wages; and in the act of congress on this subject, absence without leave is spoken of as importing the same thing as a desertion.3
[981] In considering the obligations of seamen, arising out of their contract in their shipping articles, according to the formula in common use, due weight ought to be given to the character and situation of this class of men. Generally ignorant and improvident, and probably very often signing the shipping articles without knowing what they contain, it is the duty of a court to watch over and protect their rights, and apply very liberal and equitable considerations to the enforcement of their contracts; particularly when are drawn in question the minor and more unimportant stipulations that are usually thrown into the shipping articles. But with respect to the great and leading objects of the contract, viz., the designation and agreement, on the part of the ship-owner, with respect to the intended voyage, and the engagement, on the part of the seamen, to serve for certain stipulated wages during such voyage, they are so plain and simple, [982] and so easily understood, and so intimately connected with the interests of navigation, that a strict compliance with the contract, in these respects, ought to he enforced. I afii the less reluctant to decree a forfeiture of wages in this case, because the amount in question is very inconsiderable; and the example, I hope, may have a beneficial effect upon seamen, to let them understand that they are not to abandon a vessel for light and trifling causes, before the termination of the voyage for which they have shipped.
[NOTE. A seaman who deserts the service of the ship forfeits wages previously earned. Coffin v. Jenkins. Case No. 2,948; The Rovena, Id. 12,090; Burton v. Salter, Id. 2,218; The John Martin, Id. 7.357; The Philadelphia, Id. 11,084; The Swallow, Id. 13,664; The Merrimac, Id. 9,474. The desertion must occur during the voyage. The Martha, Id. 9,144; Francis v. Bassett, Id. 5,037; Cloutman v. Tunison, Id. 2,907. The forfeiture is discretionary with the court. Gifford v. Ivollock, Id. 5,409; Swain v. Holland, Id. 13,661; Lovrein v. Thompson, Id. 8.557; The Union, Id. 14,347; The Balize, Id. 809. Quitting the ship with intention not to return is desertion. The Balize, supra; The Union, supra; The Catawanteak, Case No. 2,-510; The Rovena, supra; Hart v. The Otis, Case No. 6,154; Hayes v. The J. L. Wickwire, Id. 6.262; Costello v. American Steamship Co., Id. 3 263; The Ericson, Id. 4,510; Scully v. The Great Republic, Id. 12,571. To forfeit wages for desertion under the act of 1790, an entry of the desertion must be made in the log book. Magee v. The Moss. Id. 8,944; Cloutman v. Tunison, supra; The Phoebe v. Dignum, Case No. 11,110; The Hercules. Id. 6,401; Wood v. The Nimrod. Id. 17,959; Brower v. The Maiden, Id. 1.970; The Catawanteak, supra; Knagg v. Goldsmith. Case No. 7,872; Bray v. The Atlanta, Id. 1,819; The T. F. Whiton, Id. 13,849; Hart v. The Otis, Id. 6.154. As to what should be entered, see The Hercules, supra; Wood v. The Nimrod, supra; The Catawanteak, supra; Ulary v. The Washington, Case No. 14,-323; Snell v. The Independence, Id. 13,139.]
The decree of the district court must, accordingly, be reversed, and the libel dismissed.