BETTS. District Judge.
The libellant, in the first instance, introduced no testimony on the hearing, but relied upon his own statement of his case in the .libel, accompanied with a verbal call upon the claimants in court to produce the shipping articles. The deposition of the master of the vessel had been taken de bene esse, on the part of the claimants, pursuant to the thirtieth section of the judiciary act of September 24, 1789 [1 Stat. 73], and he had been cross-examined on the part of the libellant. The advocates of the libellant claimed the right to read that cross-examination from the deposition on file in court, and excepted to the admissibility of the direct examination of the witness, because he was part owner of the brig, and interested in the case; and also, because the shipping contract being in writing, parol evidence of its contents could not be given by the claimants. To obviate any objection to the witness because of his interest in the case, a formal release, executed and delivered to him by the claimants in court, was given in evidence, which discharged him from all liabilities to them because of any recovery that may be had against them in favor of the libellant for wages earned on the voyages in question, or for any property belonging to him left on board the brig; and they also relied upon his testimony in the deposition that he had sold and conveyed, before this action was brought, all his interest in the brig, to the claimants. The exceptions are insufficient to exclude the evidence on either ground.
The libellant cannot select a portion of the testimony of the master and make it evidence for himself, and then exclude the residue which is favorable to the claimants, because of the legal incompetency of the master to be a witness in the cause. A party who calls a witness to testify to the merits of a cause renders him a competent witness for the opposite party; and his entire testimony is thus necessarily made admissible against the libel-lant, and his general credit is also conceded.
But if the exception of the libellant prevails, and the evidence of the master is excluded, it may well be doubted whether he has furnished sufficient proof in the cause to support his action. None other would remain than his statement in the libel of the contents of the shipping articles. The evidence [870]*870implied from such statement could be carried no further than to prove the shipping contract contained those stipulations which are prescribed as part of it by act of congress. The provision of the statute is, ‘‘It shall be incumbent on the master to produce the contract, if required, to ascertain any matters in dispute, otherwise the complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on the master.” Act July 20, 1790, § 6. By the first section of that act the master of any vessel of fifty tons or upwards, bound from a port in the United States to any foreign port, is required, before he proceed on such voyage, to make an agreement in writing or in print, with every seaman on board, ‘•declaring the voyage or voyages, term or terms of time for which such seaman shall be shipped.”
The matters in dispute contemplated by the statute manifestly are those resting upon the stipulations in the shipping articles, and upon all sound principles of interpretation would be restricted to those which congress designated as vital to the contract. The penalty or disadvantage incurred by neglecting to fulfil the directions of the law is, that the master or owner will be bound by the statements of the mariner in respect to those provisions, and be further liable to the highest rate of wages paid within the last three months at that port. Whatever the seaman chooses to assert, the agreement ‘‘declared the voyage and term or terms of time of shipment to be,” if disputed, must be deemed to De as he states it. Between the two versions of the agreement alleged in these pleadings, that stated in the libel must, to that extent, be adopted and executed as the true one; but I find no intimation in any authority that a seaman acquires the right under that provision to set up a contract for himself relating to any matter not specified in the act as a particular which must appear in the written or printed agreement. How far, then, the omission in the act of wages, as one of the constituents of the contract to be declared in the shipping articles, will permit the statement of the libellant to be made evidence of that particular, may be regarded questionable. If, however, under that privilege a seaman has the power to embrace every species of obligation the master is capable of entering into, he could not have one which would supply the further ingredient essential to the maintenance of his action — that is, that he had performed the voyage agreed upon. This fact can come into existence only after the execution of the shipping articles, and is incapable of being proved by their contents any more than that of short allowance, injurious treatment or abandonment of the libellant during the voyage. With whatever fulness the execution of the articles themselves might then be proved in court, no decree could be obtained on that foundation alone. There must be the additional evidence that the stipulated services were performed. The averment or statement of that fact by the seaman could avail no more in establishing it than its denial by the owner or master in an answer would in disproving it. The bargain of hiring, however explicit, affords no ground of action without the agreed services have been performed or legally excused; and accordingly, if the statement of the libellant proves in this case the agreement he sets up in his favor, he does not thereby also prov£vshe has rendered services on the vessel, or '¿¡¡fered to do so on his part.
In my opinion, then, the libellant cannot derive from the effect given by statute to his declarations or statement, sufficient evidence to make out a right to wages. If he might, in this instance, find in the answer admissions which, in conjunction with his statements, establish a prima facie right of action, his counsel does not avail himself of that evidence, but asserts a right to a decree in his favor solely upon the ground of his own allegations and the failure of the claimants to produce the shipping articles. In my judgment this evidence is inadequate. There may be causes for question, whether the statute is intended to render the statement of a seaman proof of his contract on trial in court, or the privilege be not limited to disputes upon points arising before a judge or magistrate on a preliminary application for a summons to the master or owner to show cause why process in rem should not issue against a vessel for wages. Giving the statute the construction most favorable to seamen, there must, no doubt, appear probable evidence that the shipping articles are in possession of the master or owner, or in a situation to be at their command, to be produced by them in court on trial, before the mariner can substitute his statement for the contract, which by the rules of the common law he would be compelled to produce and prove on his part.
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BETTS. District Judge.
The libellant, in the first instance, introduced no testimony on the hearing, but relied upon his own statement of his case in the .libel, accompanied with a verbal call upon the claimants in court to produce the shipping articles. The deposition of the master of the vessel had been taken de bene esse, on the part of the claimants, pursuant to the thirtieth section of the judiciary act of September 24, 1789 [1 Stat. 73], and he had been cross-examined on the part of the libellant. The advocates of the libellant claimed the right to read that cross-examination from the deposition on file in court, and excepted to the admissibility of the direct examination of the witness, because he was part owner of the brig, and interested in the case; and also, because the shipping contract being in writing, parol evidence of its contents could not be given by the claimants. To obviate any objection to the witness because of his interest in the case, a formal release, executed and delivered to him by the claimants in court, was given in evidence, which discharged him from all liabilities to them because of any recovery that may be had against them in favor of the libellant for wages earned on the voyages in question, or for any property belonging to him left on board the brig; and they also relied upon his testimony in the deposition that he had sold and conveyed, before this action was brought, all his interest in the brig, to the claimants. The exceptions are insufficient to exclude the evidence on either ground.
The libellant cannot select a portion of the testimony of the master and make it evidence for himself, and then exclude the residue which is favorable to the claimants, because of the legal incompetency of the master to be a witness in the cause. A party who calls a witness to testify to the merits of a cause renders him a competent witness for the opposite party; and his entire testimony is thus necessarily made admissible against the libel-lant, and his general credit is also conceded.
But if the exception of the libellant prevails, and the evidence of the master is excluded, it may well be doubted whether he has furnished sufficient proof in the cause to support his action. None other would remain than his statement in the libel of the contents of the shipping articles. The evidence [870]*870implied from such statement could be carried no further than to prove the shipping contract contained those stipulations which are prescribed as part of it by act of congress. The provision of the statute is, ‘‘It shall be incumbent on the master to produce the contract, if required, to ascertain any matters in dispute, otherwise the complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on the master.” Act July 20, 1790, § 6. By the first section of that act the master of any vessel of fifty tons or upwards, bound from a port in the United States to any foreign port, is required, before he proceed on such voyage, to make an agreement in writing or in print, with every seaman on board, ‘•declaring the voyage or voyages, term or terms of time for which such seaman shall be shipped.”
The matters in dispute contemplated by the statute manifestly are those resting upon the stipulations in the shipping articles, and upon all sound principles of interpretation would be restricted to those which congress designated as vital to the contract. The penalty or disadvantage incurred by neglecting to fulfil the directions of the law is, that the master or owner will be bound by the statements of the mariner in respect to those provisions, and be further liable to the highest rate of wages paid within the last three months at that port. Whatever the seaman chooses to assert, the agreement ‘‘declared the voyage and term or terms of time of shipment to be,” if disputed, must be deemed to De as he states it. Between the two versions of the agreement alleged in these pleadings, that stated in the libel must, to that extent, be adopted and executed as the true one; but I find no intimation in any authority that a seaman acquires the right under that provision to set up a contract for himself relating to any matter not specified in the act as a particular which must appear in the written or printed agreement. How far, then, the omission in the act of wages, as one of the constituents of the contract to be declared in the shipping articles, will permit the statement of the libellant to be made evidence of that particular, may be regarded questionable. If, however, under that privilege a seaman has the power to embrace every species of obligation the master is capable of entering into, he could not have one which would supply the further ingredient essential to the maintenance of his action — that is, that he had performed the voyage agreed upon. This fact can come into existence only after the execution of the shipping articles, and is incapable of being proved by their contents any more than that of short allowance, injurious treatment or abandonment of the libellant during the voyage. With whatever fulness the execution of the articles themselves might then be proved in court, no decree could be obtained on that foundation alone. There must be the additional evidence that the stipulated services were performed. The averment or statement of that fact by the seaman could avail no more in establishing it than its denial by the owner or master in an answer would in disproving it. The bargain of hiring, however explicit, affords no ground of action without the agreed services have been performed or legally excused; and accordingly, if the statement of the libellant proves in this case the agreement he sets up in his favor, he does not thereby also prov£vshe has rendered services on the vessel, or '¿¡¡fered to do so on his part.
In my opinion, then, the libellant cannot derive from the effect given by statute to his declarations or statement, sufficient evidence to make out a right to wages. If he might, in this instance, find in the answer admissions which, in conjunction with his statements, establish a prima facie right of action, his counsel does not avail himself of that evidence, but asserts a right to a decree in his favor solely upon the ground of his own allegations and the failure of the claimants to produce the shipping articles. In my judgment this evidence is inadequate. There may be causes for question, whether the statute is intended to render the statement of a seaman proof of his contract on trial in court, or the privilege be not limited to disputes upon points arising before a judge or magistrate on a preliminary application for a summons to the master or owner to show cause why process in rem should not issue against a vessel for wages. Giving the statute the construction most favorable to seamen, there must, no doubt, appear probable evidence that the shipping articles are in possession of the master or owner, or in a situation to be at their command, to be produced by them in court on trial, before the mariner can substitute his statement for the contract, which by the rules of the common law he would be compelled to produce and prove on his part.
The point is open for consideration, whether Act July 20, 1840, § 1, art 2, which by necessary implication compels the owner to deposit the original articles with the collect- or of the port where the contract is made, does not modify the sixth section of Act July 20, 1790, in respect to the production of shipping articles in court, if not so far as to relieve the master or owner from producing them at the call of the seaman, be- ■ cause now in the custom-house and as much at the command of the mariner as of the owner or master, yet at least to compel the seaman to give distinct notice, a reasonable period of time previously, that he requires their production at a specified time and place, to be used on the trial. These shipping articles were executed, one at Boston, in December, 1842, and the other at New-Orleans, in March, 1843. This action was commenced in this court, without summons, in March, 1S4G, and the claim and answer was filed by the claimants the May there[871]*871after. No definite notice was given the claimants to produce either set of articles on the trial, previous to the time the cause was put on actual hearing. The issue was made on the pleadings the 30th of May, and the cause was heard the 16th of June. The brig being a foreign vessel, and the libel-lant, in both instances, having executed the articles in question out of the state of New-Tork three years previous to bringing his suit, I think it exceedingly questionable whether he can act upon his statement of their contents in the libel, without proof that the articles were at the time in court, or at least that he had given notice to the claimants in reasonable time that he should require their production there on the trial. This may become a very important question in the construction of the two acts together, and as the necessities of the case do not demand an explicit decision upon it, X shall leave the point open for consideration until the case shall arise which renders its determination indispensable, remarking only that the libellant has no right of standing in court other than on this technical point, that his own statement constitutes, prima facie, a full right of action and recovery in his favor. The claimants prove satisfactorily that the libellant had been paid wages due him to the time he left the vessel at Bordeaux, with the exception of three or four dollars. That he wilfully deserted her at that port, and caused thereby an expense to the vessel in waiting for and obtaining a substitute cook to fill his place, exceeding the balance unpaid him.
The counsel of the libellant takes two positions, which he insists- obviates the charge of his desertion: 'first, that he could lawfully abandon the vessel at any time on the voyage, because the claimants do not give legal proof that he had bound himself to the brig by shipping articles executed as required by law; and in the second place, lie-cause the log-book is not produced and proof furnished by that, according to the provisions of the 5th section of the act of July 20, 1790, that the libellant was absent from the ship without leave of the officers in command of her. There is clearly no foundation for the first point. The 10th article of section 1 of the act of July 20. 1840, renders all shipments of seamen made contrary to the acts of congress void, but that, or any other statute, does not annul the obligation of seamen to the vessel, and permit them to leave the service at their option, when the shipping articles are merely not forthcoming by the master to verify his authority over the crew. The obligation of the mariner is complete on the due execution of shiping articles, and is not revoked by its subsequent loss or destruction. If once duly executed it retains its binding effect upon all parties, if a reasonable excuse for not producing them in evidence be furnished.
' The libellant avers in his libel that he signed shipping articles, and claims wages under that contract from Boston to New-Orleans and from New-Orleans to Bordeaux, and thence back to a port of discharge in the United States. He thus precludes himself from asserting that his shipment was void. In the second place, it being proved that the libellant wilfully and clandestinely absconded from the brig with the intention not to return to her again, he forfeits his wages under the general marine laws. 3 Kent, Comm. 198. And the offence may be established according to those laws without resort to the methods of proof designated by the 5th section of the act of July 20. 1790. Cloutman v. Tunison [Case No. 2,907], 1 Hagg. 163; Pratt v. Thomas [Case No. 11,-377]. The statutory evidence is necessary to convict a seaman of a desertion, which carries a forfeiture of wages, when not shown to be wilful and with intention not to return to the vessel. The desertion punished as an offence by the maritime law is defined in the same terms and established by the same process as it was prior to the act of July 20, 1790. So, also, without invoking the law specially applicable to seamen, the libellant, under the common law contract of hiring, could not maintain an action for compensation for serving a portion of the time bargained for. When the engagement is for an entire period or undertaking, it must be fully performed, or all claim to compensation under it is lost. In either alternative, whether the libellant claims a right to recover on the effect given to his statements by the statute, or succeeds in excluding the testimony of the master, he will stand before- the court without evidence entitling him to a decree. But 1 think, independent of the act of the libellant in reading part of the deposition of the mas-j ter in support of his demand, and thus i bringing the whole deposition into the case i as evidence, that the proofs satisfactorily show the master was no way disqualified as a witness, having no interest in the vessel or in the event of the cause. The libel must accordingly be dismissed with costs.