Seamen left behind in a foreign country on account of inability from sickness to return in the vessel in which they went out, are within the provisions of the act of 1803 (2 Stat., 203; R. S., 4580), and for them the master should deposit with the Consul three months' extra pay, as in other cases of voluntary discharge. (1:593.) The three months' pay, over and above the wages due mariners, establishes a necessary connection between the pay so to be advanced to the Consul by the ship-master and the rate of wages then accruing to the seaman. See act 1803 (2 Stat., 203; R. S. 2 4580, 4582). (2:256.) The policy of the law and the plain intention of Congress were to discourage, as far as it was practicable, the discharge of American seamen in foreign countries. (Ibid.) Where a vessel had been wrecked on the coast of Spain, and the captain, exercising the authority which was vested in him under the circumstances, sold her on account of the underwriters, and discharged the ship's company, held, that the case is not within the act of 1803 (R. S., ? 4582), and that, therefore, the Consul of the district of Alicante and Carthagena cannot retain three months' extra wages for the seamen. (2:418.) The provisions of the act of 1803 (R. S., 4582), in relation to the extra wages of American seamen, to be paid to the Consul where the ship is sold and her crew discharged in a foreign country, are confined to vessels owned by citizens of the United States and constituting a part of our mercantile marine by sailing under our flag. (Ship-masters and seamen, 2:448, Berrien, 1831.) American seamen on foreign vessels must look to the laws of the country under whose flag they sail for remuneration and protection in such emergencies. (Ibid.) Seamen on board vessels of war are not entitled to pecuniary assistance from Consuls abroad, under the act of 1803. (R. S,, 4577.) (3:683.) The moneys in the hands of the Secretary of State were raised from the wages of merchant seamen only, and should be applied only for the relief of that class of seamen which have contributed to the fund. (Ibid.) Seamen on board of ships of war are not entitled to pecuniary assistance from Consuls under the acts of 1792 (1 Stat., 256; repealed) and 1803 (2 Stat., 203; R. S., 4577). (3:685.) Trivial depredations on ship's cargo does not of itself forfeit wages. (Olsen v. The Edwin Post, 6 Fed. Rep., 314.) Return of Seamen to United States. Where a minor concealed himself, without the knowledge of his father, on board of a whaling-ship, and was not discovered till the vessel was at sea, and was then left by the master in the care of the American Consul at the first port at which he touched, it was the duty of the Consul to provide for and send him home to the United States. (Luscom vs. Osgood, 1 Sprague, 82.) Shipmasters in foreign ports are subject, on the requisition of the Consul, to take on board and convey to the United States distressed seamen; but not seamen or other persons accused of crimes, to be transported to the United States for prosecution. (7:722.) Seamen of the United States put on board a vessel of the United States by a Consul in a foreign port are bound by the same regulations as articled seamen. (See R. S., 4577; United States vs. Sharp, Peters, C. Cls., 118.) Under the act of 1803 (2 Stat., 203; R. S., § 4578), requiring the masters of American vessels bound homeward to provide passage for destitute seamen, on the request of Consuls, the Consul's certificate shall be presumptive evidence, not merely of the fact of the master's refusal to take the seaman on board, but of all the facts stated in the enacting clause, which are necessary to bring the case within the penalty. (Matthews vs. Offley, 3 Sumner, 115.) If a seaman be entitled to the privileges of an American seaman, and be destitute, the Consul is the proper judge as to the ship on board of which he should be placed for his return to the United States. (Ibid.) Foreigners shipped in an American vessel in a port of the United States are deemed to be "mariners and seamen of the United States," within the language and policy of the act of 1803 (2 Stat., 203; R. S., & 4577), which provides for destitute seamen in foreign ports. (Ibid.) The bond given to the United States under the act of Congress of 1803 (2 Stat., 203; R. S., & 4576), by the master of a vessel, conditioned for the return of the crew to the United States, is not forfeited where a vessel is sold in a foreign port and does not return to the United States; nor does it extend to the seaman who is lawfully separated from the ship, without the fault of the master or owner; but to those cases only where the vessel returns to the United States and where the ship's company continue subject to the authority of the master. (Montell vs. United States, Taney's Decisions, 24. See ? 4522a.) Desertion of Seamen. By the general maritime law, desertion is an unauthorized absence from the ship, with an intention not to return. (Coffin v. Jenkins, 3 Story, 108.) To constitute desertion and work a forfeiture of wages there must be an intent to desert. Going ashore without leave and with intent to return is not desertion. (The Catawanteak, 2 Benedict, 189.) A seaman, by the consent and assistance of the mate, but unknown to the master, left the vessel. Held, not liable to desertion or to a forfeiture of wages. (The Caroline E. Kelly, 2 Abbott, U. S., 160.) The statute provision for the surrender of deserting seamen applies only to seamen of those governments with which a treaty exists to that effect. (6: 148.) Where seamen are shipped on a vessel unseaworthy at the time, they may abandon her or refuse to do duty on board. Such acts, under such circumstances, not amounting to mutinous conduct, do not work a forfeiture of wages. (The Moslem, Olcott, 289.) A Consul has no authority to demand and receive from the master of a vessel the money and effects belonging to a deserter from the vessel. 520.) Discharge of Seamen. (14, Masters of American vessels cannot lawfully discharge seamen in foreign ports without intervention of the Consul. (See R. S., 4576.) (7: 349.) It does not help the matter to allege that the seamen consent, or have misconducted themselves, or are not Americans. Of all that, it is for the Consul to judge. (Ibid.) The act of a Consul in discharging a seaman in a foreign port is not conclusive on the court where a libel is filed for wages. (Campbell v. The Uncle Sam, 1 McAllister, 77.) Where a seaman is hurt in the service of the ship, his inchoate right to recover the expenses of his cure from the ship accrues at once, and is not affected by his subsequent discharge while sick ashore, under the act of June 26, 1884, 3, by a consul in a foreign port. Whether such discharge is valid, quaere. (The W. L. White, 25 Fed. Reps., 503.) A slight disobedience may not justify a discharge and loss of wages. (The Cornelia Amsden, 5 Benedict, 315.) Miscellaneous. A certificate under the act of 1860 (12 Stat., 84; R. S., 5271) should show upon its face that the officer who made it is the principal Diplomatic or Consular Officer of the United States resident in the country making the demand of extradition, and should declare that the documents to which it is attached are legally authenticated, according to the laws of the country from which the fugitive escaped, so as to entitle them to be received as evidence for similar purposes by the tribunals of that country. (10, 501.) The master of an American vessel sailing to or between ports in the British North American provinces is required, on arriving at any such port, to deposit his ship's papers with the American Consul. (11, 72.) The act of 1861 (12 Stat., 315; R. S., ? 1720) does not change or affect the duties of masters of American vessels running regularly by weekly or monthly trips, or otherwise, to or between foreign ports, as imposed by act of 1803 (2 Stat., 203; R. S., 4309.) (Ibid.) If an American vessel is obliged by the law or usage prevailing at a foreign port to effect an entry, and she does enter conformably to the local law or usage, her coming to such foreign port amounts to an arrival within the meaning of section 2 of the act of 1803 (2 Stat., 203; R. S., 4309), independently of any ulterior destination of the vessel, or the time she may remain or intend to remain at such port, or the particular business she may transact there. (Ibid.) If a vessel be compelled, by an overruling necessity, to take refuge in the ports of another country, she is not subject to the municipal law of that country, so far as concerns any penalty, prohibition, tax, or incapacity, that would otherwise be incurred: Provided, she do nothing further to violate the municipal law during her stay. (4:98.) The second section of the act of 1803 (2 Stat., 203; R. S., 24309) does not require the papers of an American vessel in a foreign port to be delivered to the Consul, except in cases where it is necessary to make an entry at the custom-house. (4:390.) Masters of American vessels entering foreign ports where there is an American Consul, and remaining so long that, by the local regulations, they are required to enter and afterward to clear in regular form, are required to deposit their registers, etc., with such Consul, irrespective of the purpose for which the port was entered. (5:161.) In order that the master of a ship, on her "arrival" in a foreign port, shall be compellable to deposit the ship's papers with the Consul, the arrival must be such a one as involves entry and clearance. (6: 163.) A citizen of the United States may lawfully purchase a merchant-ship of either of the belligerents, Turkey, Russia, Great Britain, France, or Sardinia; and, if purchased bona fide, such ship becomes an American vessel in the sense of American property, although she is not an American vessel in the sense of the registry or enrollment acts; and she is entitled to protection and to the flag of the United States. Although she can not take out a register, that is because she is foreign-built, not because she is belligerentbuilt. The question as to what documents such a ship is entitled to, referred to, but not decided. (6: 638.) The advice of an American Consul, in a foreign port, gives to the master of a vessel no justification for an illegal act. (Wilson v. The Mary Gilpin, 33.) The right given to seamen by the act of 1840 (5 Stat., 396; R. S., & 4567) to lay their complaints before the American Consul'in foreign ports, is one of great importance, which a court of admiralty will carefully protect. (Morris ». Cornell, 1 Sprague, 62.) Masters of American vessels are subject to prosecution in the name of the Consul for omission to deposit with him the papers according to law, but not to indictment. (2 Stat.. 203, ? 2; K. S., 4309.) (7: 395.) The commander of an American vessel is required to deliver his register and other ship's papers to the Consul at a foreign port, only in cases where he is compelled to make an entry at the custom-house. (9: 256.) A Consul has no right to detain seamen in prison as a punishment after he has discharged them from their contract at the request of the master. (Jordan v. Williams, 1 Curtis, 69 [85].) A |