of the master, and lean towards the support of authority and discipline (7). The powers of the master to punish for disobedience have been detailed in an earlier Chapter (r). The punishments imposed by the Merchant Shipping Act, 1854, in cases where the seaman has been engaged in accordance with the terms of the act, will be mentioned in a subsequent part of this Chapter (s). Desertion, which, in many cases, includes disobedience, con- Desertion. sists in an unlawful abandonment of the ship, or an unlawful absence from her with the intention of not returning, occurring during the voyage for which the seaman has contracted to serve (t). Refusing to return after quitting the ship by permission (u), or leaving her without waiting a reasonable time, when she cannot enter the port by reason of its crowded state, amounts also to desertion (x). If, however, the master violates the terms of the agreement by which the mariners are engaged, or employs the ship on a voyage that is illegal or involves a special risk beyond what was originally contemplated (≈), the seamen are justified in leaving the ship, and their departure is not a desertion. Under the 7 & 8 Vict. c. 112, every wilful absence without permission within twenty-four hours immediately preceding the sailing of the ship, either before the commencement of the voyage, or during its progress, amounted to a desertion. This act was, however, repealed by the Merchant Shipping Act Repeal Act, 1854 (17 & 18 Vict. c. 120); and the statute now in force, the Merchant Shipping Act, 1854, as amended by the Merchant Seamen Act, 1880, does not treat absence without leave within twenty-four hours of the ship's sailing as a desertion, but provides that this offence shall be punishable by forfeiture of a portion of the wages (a). In inquiring whether or not a particular act amounts to a desertion, the animus of the mariner who commits it must be N 2 (1) The Bulmer, 1 Hagg. 163; The Jupiter, 2 Hagg. 221. (x) The Pearl, 5 Rob. 224. (z) The Minerva, 1 Hagg. 347; The Eliza, ib. 182; The George Home, ib. 370; The Countess of Harcourt, ib. 248; The Cambridge, 2 ib. 243; Burton v. Pinkerton, L. R., 2 Ex. 340. (a) The M. S. Act, 1854, s. 243; The M. S. Act, 1880, sects. 10, 12 (Appendix, pp. ccclxxe, ccclxxh). x (1349) i justify considered, since acts of irregular absence may occur without coming within the terms by which this offence is defined; thus, where a sailor having gone ashore at a foreign port, got drunk, and overstayed his leave of absence, but there was no evidence of an intention or desire to quit the ship, the Court held that this was not a desertion (b). There are other acts, besides a deviation from the voyage agreed upon, which, when done by the master, have been held to justify a desertion, or rather to make that which would be otherwise a desertion a lawful quitting of the ship. Thus, where a reasonable request by a seaman to remain on shore to procure victuals was refused, and he remained notwithstanding, and returned the next morning to the ship, and offered to resume his duty, this was held not to be a desertion (c). So, a want of provisions, amounting to a substantial case of hardship, has been held to be a justification for leaving the ship (d); and desertion is excusable where the seaman cannot remain without risk to his personal safety by reason of the inhuman treatment and unreasonable severity and cruelty of the master (e). In a case where, although the men had grossly misconducted themselves, there was room for a belief that they might have misunderstood the words of the master, and have thought that they were discharged, the Court refused to construe their absence as an actual mutiny and desertion (ƒ). It has been held, independently of any statutory enactment in this respect, that if the master receives the mariner back the unlawful absence will be purged, at least so far as to prevent a forfeiture of the wages (g). Leaving the ship for the purpose of forthwith entering into the navy, is not a desertion (); but a wrongful abandonment of the ship is not purged by an entry within twenty-four hours into the navy, not intended at the time of the desertion (i). (b) The Ealing Grove, 2 Hagg. 15. See also Button v. Thompson, L. R., 4 C. P. 330. (e) Sigard v. Roberts, 3 Esp. 71. (d) The Castilia, 1 Hagg. 59. (e) Limland v. Stephens, 3 Esp. 269; Edward v. Trevellick, 4 E. & B. 59. (f) The Frederick, 1 Hagg. 211. (g) Miller v. Brant, 2 Camp. 590; Beale v. Thompson, 4 East, 546; Train v. Bennett, 3 C. & P. 3. By the just and merciful rule of the maritime law, if the mariner repented and sought to return to his duty, the master was bound to receive him. See the judgment of Mr. Justice Story in Cloutman v. Tunison, 1 Sumner (American) Rep. 373. (h) See the M. S. Act, 1854, s. 214. Any arrangement by which the wages are to be forfeited, if the seamen enter into the navy, is void. Ib. And see sect. 215, as to the payment of wages and delivering up of the clothes and effects of seamen upon their volunteering into the navy. (i) The Amphitrite, 2 Hagg. 403. In cases of mutiny we have already seen that the master Mutiny. possesses a summary authority over the offenders, and that he may resort to force even although the mutiny be only threatened (k). ENACTMENTS DISCIPLINE. Numerous statutory provisions have been made for the STATUTORY punishment of the acts of misconduct of which the seamen may FOR THE PREbe guilty. The earlier statutes relating to this subject were SERVATION OF repealed by the Merchant Shipping Act Repeal Act, 1854, and the principal act which is now in force is the Merchant Shipping Act, 1854 (1). This statute contains the following provisions (m). By sect. 239, any master of or any seaman or apprentice Breach or neglect of belonging to any British ship who by wilful breach of duty or duty. by neglect of duty, or by reason of drunkenness, does any act tending to the immediate loss, destruction or serious damage of the ship, or tending immediately to endanger the life or limb of any person belonging to or on board of the ship, or who by wilful breach of duty or by neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss, destruction or serious damage, or for preserving any person belonging to or on board of the ship from immediate danger to life or limb, is guilty of a misdemeanor (n). By sect. 243 of this act, as amended by sects. 10 and 12 of the Merchant Seamen Act, 1880, whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offences, he is liable to be punished summarily as follows (0): (1.) For desertion he is liable to forfeit all or part of the Desertion and clothes and effects he leaves on board, and all or any part of the wages or emoluments which he has then (k) See supra, pp. 126, 127. (7) See the M. S. Act, 1854, ss. 239 -259, and the earlier statutes, now repealed-the 7 & 8 Vict. c. 112, and the 13 & 14 Vict. c. 93. (m) The sections of the M. S. Act relating to discipline apply only to British ships. Leary v. Lloyd, 3 E. & E. 178. But see the M. S. Act, 1876, s. 37. (n) To sustain an indictment under this section, it is not necessary to prove any actual loss, destruction, or damage. Rex v. Gardner, 1 F. & F. 669. (0) 43 & 44 Vict. c. 16, ss. 10, 12 (Appendix, pp. ccclxxe, ccclxxh). In addition to the list of punishments mentioned in the text, the Board of Trade has sanctioned and published in pursuance of this act, a list of minor acts of misconduct and breaches of discipline, to which a loss of pay is attached. See Appendix, "Forms," Nos. 24, 25. If this list is adopted in the agreement it becomes obligatory. other offences. earned. If the desertion takes place abroad, he is also liable, at the discretion of the Court (0), to forfeit all or any part of the wages or emoluments he may earn in any other ship in which he may be employed until his next return to the United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship from which he deserts to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him: (2.) For neglecting or refusing, without reasonable cause, to join his ship, or to proceed to sea in his ship, or for absence without leave at any time within twenty-four hours of the ship sailing from any port, either at the commencement or during the progress of any voyage, or for absence at any time without leave and without sufficient reason from his ship, or from his duty, not amounting to desertion or not treated as such by the master, he is liable to forfeit out of his wages a sum not exceeding the amount of two days' pay, and in addition for every twenty-four hours of absence either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute: (3.) For quitting the ship without leave after her arrival at her port of delivery and before she is placed in security, he is liable to forfeit out of his wages a sum not exceeding one month's pay: (4.) For wilful disobedience to any lawful command he is liable to imprisonment for any period not exceeding four weeks, with or without hard labour, and also, at the discretion of the Court, to forfeit out of his wages a sum not exceeding two days' pay: (5.) For continued wilful disobedience to lawful commands, or continued wilful neglect of duty, he is liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour, and also, at the discretion of the Court, to forfeit for every twenty-four hours' continuance of such disobedience or neglect either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute: (0) See infra, pp. 188-191. (6.) For assaulting any master or mate he is liable to im- (7.) For combining with any other or others of the crew to (9.) For any act of smuggling of which he is convicted, and whereby loss or damage is occasioned to the master or offences in Upon the commission of any of the offences which have been Entry of just mentioned, it is also provided by sect. 244 of the Merchant official log. Shipping Act, 1854, that an entry must be made in the official log-book (9) and signed by the master and also by the mate or one of the crew; and the offender, if still in the ship, must, before the next subsequent arrival of the ship at any port, or if she is at the time in port, before her departure therefrom, either be furnished with a copy of the entry or have the same read over distinctly and audibly to him, and he may thereupon make any reply thereto which he thinks fit; and a statement that a copy of the entry has been so furnished or read over, and the reply made by the offender, must likewise be entered and signed in the manner mentioned above; and in any subsequent legal proceeding these entries must, if practicable, be produced or proved, and in default of their production or proof, the Court hearing the case may, at its discretion, refuse to receive evidence of the offence. (p) See 24 & 25 Vict. c. 97, ss. 4247, 49 and 72; 24 & 25 Vict. c. 100, ss. 13, 30. (2) See Appendix, "Forms," No. 43. |