291. Passage money to be paid from arrears of wages, etc.-The amount to be paid at the Treasury Department for the passage of a seaman to the United States on a consular certificate is to be estimated with the expenses of the seaman and deducted from his arrears of wages or the extra wages in the same manner as the expenses for relief that are paid directly by the consular officer. When, also, a seaman is sent to an intermediate port, if any part of the arrears of wages or the extra wages is available for the purpose, the amount paid in advance for his passage, or requested to be paid, by the consular officer at the port of destination should be deducted in like manner. 292. Accounts and drafts.-All accounts relating to the relief and transportation of destitute seamen must be in the name of the principal consular officer, and drafts on the Secretary of the Treasury must be made by those officers only. No account or draft of a vice-consul or vice-commercial agent or consular agent will receive attention, unless in the absence of the principal consular officer from his post, in which case a certificate of that fact must accompany the account or draft. (Paragraphs 557, 558.) ARTICLE XVII. DESERTION OF SEAMEN. 293. Desertion, how punished. It is provided by statute that desertion shall be punished by imprisonment for not more than three months, and by the forfeiture of all or any part of the clothes or effects the deserter leaves on board, and of all or any part of the wages or emoluments which he has then earned; and that when a seaman or apprentice neglects or refuses to join the ship, or deserts from or refuses to go to sea in any vessel in which he is duly engaged to serve, or is found otherwise absenting himself therefrom without leave at any place out of the United States, he may be apprehended and detained or conveyed on board. It is also made the duty of consular officers to reclaim deserters and to employ the local authorities for the purpose whenever that can be done.— R. S., secs. 4596, 4599, 4600. (Paragraph 299.) 294. Desertion defined.-Desertion is defined to be the quitting of the ship and her service by one of the ship's company without leave and against the obligation of the party and with an intent not again to return to the ship's duty. Neglect or refusal to rejoin the ship after an absence with leave when ordered to return is desertion; but it is not desertion when a mariner, through excess of indulgence, overstays his time of leave, and when he has not refused or neglected to comply with an order to return; nor when the seaman leaves the ship on account of cruel or oppressive treatment, or for want of sufficient provisions in port when they can be procured by the master, or when the voyage is altered in the articles without consent.-18 Fed. Rep., 605; 39 Id., 624. Where a seaman signs articles for a voyage, agreeing to go to the port where the vessel is lying to join her, and fails to do so, he is a deserter.-53 Fed. Rep., 551. 295. Casual overstay not desertion.-A casual overstay of leave is not desertion; nor is the going ashore without leave, but with the intent to return. The consular officer will be careful to inquire on these points, as sailors on shore often overstay their leaves of absence. He will also take care to assure himself that a reported desertion has not been fraudulently favored or permitted by the master for the purpose of avoiding the payment of extra wages upon a regular discharge of the seaman.-2 Ben., 189. 296. Forfeiture of clothes, wages, etc.-The clothes, effects, and wages which are forfeited for desertion are to be applied in payment of the expenses occasioned by the desertion to the master or owner of the vessel from which the desertion took place, and the balance, if any, is to be paid by the master or owner to any shipping commissioner resident at the port at which the voyage of the vessel terminates. In all cases of forfeiture of wages, the forfeiture shall be for the benefit of the master or owner by whom the wages are payable.-R. S., sec. 4604. Under the provisions of this statute it has been decided that a consular officer has no authority to demand and receive from the master the money and effects belonging to a deserter from the vessel.-14 Op. Att. Gen., 520. 297. Upon sale of vessel abroad.-If a vessel is sold in a foreign port and the master then has a balance of wages of a deserter in his hands which would be delivered to the shipping commissioner if the voyage were to terminate in a port of the United States, the consul may properly demand such balance; and he is instructed to make the necessary inquiries of the master in this respect. If the master refuses to comply with the demand, the consul will report the facts, together with the amount of the balance and the name of the deserter, to the Department of State. If the master complies with the demand, it will be the duty of the consul to give a receipt for any money delivered to him, and to transmit the amount, through the Department of State, to the shipping commissioner at the port to which the vessel belonged, or, if there is no shipping commissioner, then to the district judge for the district in which the port is situated. (Appendix V.) 298. Consul to protect fund arising from forfeitures.-The balance of the proceeds of the forfeited clothes, effects, and wages of deserters, to be paid to the shipping commissioner, ultimately goes into a fund for the relief of sick and disabled and destitute seamen. It is the duty of a consular officer, so far as possible, to protect this fund. To that end, therefore, he will require the master, when a desertion list is to be settled and certified, to exhibit his slop-book and an account of all items charged against the seaman, and the amount, if any, due to him from the ship at the date of desertion. He will 17824 C R- -8 closely examine the account of the ship against the seaman, and he may withhold his approval, if he shall be satisfied that the account is overstated, or the prices of articles are extortionate, or that the account is fraudulent in any respect, until the master shall consent to its rectification. In settling the account of a deserter's wages, or his interest in the cargo, no allowance or deduction shall be made except for moneys actually paid, or goods at a fair price supplied, or expenses incurred for the seaman, any receipt or voucher from or arrangement with the seaman to the contrary notwithstanding.-R. S., secs. 4545, 4604. 299. Arrest of deserters. In countries with which the United States have stipulations by treaty or convention providing for it, or where it is permitted by the local authorities, consular officers may cause the arrest of deserters and imprison them until required by the master or send them on board. (Forms Nos. 31, 32, and 34.) The imprisonment, however, is only in order to detain the deserter, and not to punish him, and there is no authority for its infliction at the request of a master after the discharge of a seaman from his contract with the vessel. Apart from the stipulations of treaty, the local laws of a country often provide for the arrest of deserters in order to prevent their becoming a public charge, and these laws may be availed of by consular officers. Authority for the arrest and detention is also granted in some countries as a matter of comity or has the sanction of long-established usage. But in the absence of a treaty or convention, a consular officer can not claim as a right from the local authorities the detention or return of a deserter.-1 Curtis, 69. (Paragraphs 88, 306, 320.) 300. Desertions to be noted on crew list.-It is the duty of a master, when a desertion occurs, to note the fact on the list of the crew (Form No. 33), and to have the desertion officially authenticated at the port or place of the consular office where it takes place, if it is possible; if not, at the consular office at the port first visited by the vessel after the desertion, if it shall have occurred in a foreign country. If the vessel is at a port where there is a consular officer, it is the duty of the master to report to the latter the desertion of a seaman within forty-eight hours thereafter. This provision is to be construed in connection with the provision that the bond given by the master for the return of the seaman shall not be forfeited on account of his absconding, of which satisfactory proof is to be exhibited to the collector. (Paragraph 205.) 301. Desertions connived at by masters.-Consular officers are enjoined to take every proper measure to discourage and defeat any proceedings on the part of masters under which seamen are permitted or forced to desert and subsequently come upon the consulate for relief. And with this view they are forbidden to certify the desertion list of any master until it is satisfactorily shown that the desertion was not consented to or abetted by the master or his officers or was not made justifiable by the conduct on their part toward the seamen, and that all proper efforts were made to recover and secure the deserter. No seaman can be said to abscond who openly goes off with the consent of the master or under circumstances showing the desire or intention to get rid of him.-24 C. Cls. R., 160. When, therefore, the consular officer is satisfied that the seaman did not abscond or that he could have been reclaimed if the master chose to make an effort for that purpose, he is instructed to decline making any certificate which would facilitate the master in evading the obligation of the bond for the return of his crew. 302. Desertion from cruel treatment. It is by law made the duty of consular officers, in cases where deserters are apprehended, to inquire into the facts; and if he is satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be discharged and receive, in addition to his wages |