1876.] Opinion of the Court-Hoffman, J. crime of embezzling the mail sack intrusted to his care, to five years' imprisonment at hard labor, this being the maximum punishment provided for the offense; and for the crime of taking the gold dust from the sack already so embezzled he is sentenced to one year's imprisonment at hard labor, that being the minimum punishment provided for the offense, and it is also ordered that this judgment be executed in the penitentiary of this State. THE SHIP ERICSON. DISTRICT COURT, DISTRICT OF CALIFORNIA. 1. DESERTION BY SEAMAN.-When a seaman, against the orders of the master and knowing that the ship was about to sail, went ashore and failed to return to the ship, and subsequently, when apprehended by the master, broke away from his custody, and it appeared that further delay would have imperilled the ship: Held, that this conduct amounted to a desertion, and that the wages due the seaman were forfeited. 2. ALITER. Where he has gone ashore by permission and without knowing that the ship was about to sail, and his failure to rejoin her is caused by drunkenness, but without any intention on his part to desert, but a qualified forfeiture will in such case be imposed. Before HOFFMAN, District Judge. Daniel T. Sullivan, proctor for libellants. Charles Page, proctor for claimants. HOFFMAN, J. The evidence shows that the libellant McKenzie, against the orders of the master and with the knowledge that the ship was about to sail, persisted in going on shore "to take a drink," as he said. Circumstances which will be detailed hereafter rendered the immediate departure of the vessel indispensably necessary. The captain deemed it so important to get over the bar that he abandoned about twelve tons of freight which he would otherwise have taken on board. As many of the men were missing, the remaining crew objected to going to sea short-handed. Opinion of the Court-Hoffman, J. [January, The captain, however, persuaded them to work the ship over the bar by the promise that he would either recover the deserters or procure substitutes. He accordingly left the ship in charge of the pilot and mate, and went into the town (Newcastle, N. S. W.), to endeavor to find the missing men. He found the libellant, with some others, at a dramshop and directed them to remain where they were while he went to look after the other men. On his return with the men he had shipped, he found the libellant and proceeded with him and the rest towards his boat. They had approached within a short distance of the boat when the libellant broke away and ran. The captain and two men pursued him. They were unable to overtake him. When he found they had abandoned the pursuit he, as the captain states, "turned round and abused him fearfully." The captain had no alternative but to go to sea without the libellant, notwithstanding that he was the carpenter, whose services might be of great importance. It was nightfall; the ship was on a lee shore; the barometer was low; storm signals were set, and the harbor-master had warned him of the approach of an easterly gale. Had he continued the pursuit of the carpenter he might have lost the men whom he had just recovered or shipped. The ship, therefore, set sail without the libellant. He now sues to recover wages, not only for the time of his service actually performed, but for the whole voyage up to the arrival of the ship at this port. This last claim is wholly inadmissible; and it was not insisted on at the hearing. The only question is, whether the abandonment of the service by the libellant constituted a desertion to which the statute attaches the penalty "of forfeiture of all or any part of the wages he had then earned." In the case of Scully v. The Great Republic, 1 Sawyer, 31, a somewhat similar case was considered by this court. The libellant, in that case, had gone ashore by permission. By some accident not clearly explained, but probably owing to indulgence in liquor, he did not return to the landing until after the ship sailed from Yokohama for Hongkong. On her return to Yokohama, he claimed to be reinstated, which the 1876.] Opinion of the Court-Hoffman, J. captain refused. He sued for wages for the whole voyage, and his expenses at Yokohama from the time he offered his services to the master. He was allowed wages up to the time of his leaving the vessel. The court held that there was no reason to believe that he intended to finally abandon the service. But the circumstances of this case are clearly distinguishable from those of the case at bar. In Scully's case, the absence, though culpable, was the result of accident; or, if that term be inapplicable to a neglect caused by drunkenness, the facts negatived the idea of any intention to desert. But in the case at bar, the libellant went on shore without permission and against the express command of the master, who informed him that the ship was to sail at eleven o'clock. He did not, like Scully, merely arrive at the landing too late to rejoin the ship; but when the master, who was at pains to recover him, was taking him to the boat, he broke away and ran. He himself admits having done so. The natural and inevitable consequence of this was to compel the master to proceed to sea without him. He must be held to have intended what was the necessary result of his conduct. He cannot, by alleging drunkenness, or rather forgetfulness of all that occurred except his starting back, escape the consequences of his own acts. He does not, in his testimony, explicitly say that he was drunk; and the fact that he was able to outrun his pursuers would seem to indicate that he was only partially intoxicated. His running away was, under the circumstances, an act of desertion, and must have been so intended by him. Whether that intention was formed while under the influence of liquor, I consider immaterial. In the case of the libellant Weston, the evidence is very meagre, but I think it hardly sufficient to show a desertion. He left the ship about seven o'clock by permission of the master, as he says. He got drunk and remembers nothing. until the next morning. The captain denies that he gave permission to the man to go ashore; but it does not appear that he knew that the ship was to sail, or that he commenced his debauch with the knowledge that, if he did not [March, Opinion of the Court--Hoffman, J. rejoin the ship during the morning, he would certainly be left. His case seems nearly identical with that of Scully. If the decision in that case was correct, Weston is entitled to his wages, subject to such qualified forfeiture as this court may, by section 4596 revised statutes, impose. In cases of absences without leave, not amounting to desertion, the offender may be punished by imprisonment for not more than one month, "and also, at the discretion of the court, by forfeiture of his wages of not more than two days' pay, and for every twenty-four hours of absence either a sum not exceeding six days' pay, or any expenses which have properly incurred in hiring a substitute." The amount of the forfeiture, if any, which is to be imposed thus seems, within the limits prescribed, to be left to the discretion of the court. If Weston had known that the ship was about to sail, I should be inclined to inflict the extreme statutory penalty. But this is not shown. I shall impose a forfeiture of such a sum for each twenty-four hours of absence as will amount to twenty days' pay. Decree accordingly. The libel of McKenzie is dismissed. These suits, though separately brought, were tried together. I have, therefore, considered them both in one opinion. STINER HALVERSON v. E. P. NISEN ET AL. DISTRICT COURT, DISTRICT OF CALIFORNIA. 1. INJURIES BY NEGLIGENCE OF A FELLOW-SERVANT.-The owner of a vessel is not responsible for injuries to a seaman, caused by the negligence of the mate, where no personal negligence on the part of the owner appears. Before HOFFMAN, District Judge. J. McHenry, J. P. Dameron and A. H. Townshend, for libellant. Milton Andros, for respondent. HOFFMAN, J. This action is brought to recover compensation for injuries sustained by the libellant, a seaman on 1876.] Opinion of the Court-Hoffman, J. the schooner Twilight, by reason of the giving way of a rope to which a triangle on which the libellant was working, was attached. The libellant fell to the deck and sustained grave injuries. The respondents are the owners of the schooner. The rope which gave way was the jib downhaul, and the accident was caused by the chafed condition of the seizing, by which the down-haul block should have been secured. The triangle was rigged by the mate, and it is to his negligence or unskillfulness that the accident is to be attributed. No evidence whatever has been offered to show actual negligence on the part of the respondents. It is not pretended that they failed to exercise due care in the selection of the mate, or that there was any carelessness or neglect in the original outfit and appointments of the vessel. It is contended that in the owner's contract with the seaman there is an implied warranty that the vessel shall be, and continue during the voyage, seaworthy in every respect, and that the owner is responsible for any damage that may happen to the seamen through any defect in the tackle, apparel, or furniture of the ship. I do not consider it necessary to examine at much length the soundness of this proposition, for the circumstances of this case do not admit of its application if its soundness were conceded. In a certain sense it is as much a part of the implied engagement of the owner with the mariner that the ship shall, at the commencement of the voyage, be furnished with all the customary requisites for navigation, or, as the term is, shall be seaworthy; as that the master shall supply the mariners with good and sufficient provisions. (Dixon v. The Cyrus, 2 Pet. Admr. 411; Curtis, R. & D. 20.) If, by the owner's negligence, the rigging or apparel are defective, and the seaman sustains an injury in consequence, the owner would be liable. His liability in this respect does not differ from that of any other master to a servant in his employment. It is the master's duty in all cases to use ordinary care and diligence to provide sound and safe materials for his servants. But he does not warrant them to be so nor insure the servant against the consequences of their defects. The foundation of his liability is his personal |