States, and on proof by exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged, at the time of desertion, to the crew of said vessel, it shall be the duty of any court, judge, justice, or other magistrate, having competent power, to issue warrants to cause the said person to be arrested for examination; and if on examination the facts stated are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the said consul or vice consul, to be sent back to the dominions of any such government, or, at the request, and at the expense, of the said consul or vice consul, shall be detained until the consul or vice consul finds an opportunity to send him back to the dominion of any such government. Provided, nevertheless, that no person shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. And provided, further, that if any such deserter shall be found to have committed any crime or offence, his surrender may be delayed until the tribunal, before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect."

It has been held that this act does not confer any power upon State officers, but only upon courts and officers of the United States. The true rule, however, seems to be that although the Federal government has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it, yet it may authorize him to perform a particular duty, which, if not forbidden to do by the State government, he may then legally perform.2

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By statute, desertion seems to be defined as an absence from the ship for more than forty-eight hours without leave." And

1 In re Bruni, 1 Barb. 187. It was also said that it must be alleged that the desertion was from the vessel while it was "in a port of the United States." See Kentucky v. Dennison, 24 How, 107, 108.

Act of 1790, c. 29, § 5. An important question has arisen in regard to the construction of this act. On the one hand it has been held, that as the statute defines the offence of desertion, and provides the method by which it is to be proved, there can be no forfeiture of wages by the maritime law. This was the view taken by the District Court for the Southern District of New York in numerous cases. See the Cadmus, Blatchf. & H. Adm. 139; The Martha, id.

there must be an exact entry of the fact on the log-book setting forth the circumstances, made on the day when the absence begins; and it must be a continued absence for forty-eight suc151; The Elizabeth Frith, id. 195; The Union, id. 545, 555. The same view seems to have been taken in the Eastern District of Pennsylvania. See Wood v. The Nimrod, Gilpin, 83; Snell v. The Independence, id. 140; Knagg v. Goldsmith, id. 207. See also The Schooner Phoebe v. Dignum, 1 Wash. C. C. 48; Brig Betsey v. Duncan, 2 Wash. C. C. 272; Herron v. Schooner Peggy, Bee, Adm. 57. On the other hand Mr. Justice Story, in Cloutman v. Tunison, 1 Sumner, 373, 380, speaking of this act, said: "But, inasmuch as such prolonged absence might endanger the safety of the ship, or the due progress of the voyage, it deems forty-eight hours' absence without leave, to be ipso facto a desertion, and inflicts upon it a total forfeiture of wages. It thus creates a statute desertion, and makes that conclusive evidence of the fact, which would, upon the common principles of the maritime law, be merely presumptive evidence of it. It does not supersede the general doctrine of the maritime law, or repeal it; but merely in a given case applies a particular rule in pœnam, leaving the maritime law in all other cases in full efficiency." Although these remarks are to a great extent obiter, there being neither maritime nor statutable desertion in that case, yet the doctrine therein contained was fully sustained by the same learned judge in a subsequent case, Coffin v. Jenkins, 3 Story, 108, and it may now be considered as the settled construction. See The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; Barton v. Salter, U. S. C. C. Mass., 21 Law Rep. 148; Ship Union v. Jansen, 2 Paine, C. C. 277; The Rovena, Ware, 309. The Brig Osceola, Olcott, Adm. 450, 461. If a seaman remains on shore more than forty-eight hours without leave, seeking redress before a public tribunal for an assault committed on board the vessel, it would seem that he could not be treated as a deserter. wood v. McIntosh, Ware, 109.

Sher

1 Act of 1790, c. 29, § 5, 1 U. S. Stats. at Large, 100. In Cloutman v. Tunison, 1 Sumner, 373, 381, Mr. Justice Story said: "To work the statute forfeiture, it is made an indispensable condition that the mate, or other officer having charge of the log-book, should make an entry therein of the name of such seaman, on the day on which he should so absent himself; and the entry must not merely state his absence, but that he is absent without leave. The entry on the very day is, therefore, a sine quâ non.” See also Spencer v. Eustis, 21 Maine, 519; The Schooner Phoebe v. Dignum, 1 Wash. C. C. 48; Brig Betsey v. Duncan, 2 id. 272; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; The Rovena, Ware, 309, 312; Lord v. Kimball, Sup. Jud. Ct. Mass., 1804, Abbott on Shipping, Am. ed. 648, n; The Cadmus, Blatchf. & H. Adm. 139; The Martha, id. 151; The Union, id. 545; Wood v. The Nimrod, Gilpin, 83; Snell v. The Independence, id. 140; Knagg v. Goldsmith, id. 207; Magee v. The Moss, id. 219; Hunt v. The Brig Otis, Crabbe, 52; Bray v. Ship Atalanta, Bee, Adm. 48; Herron v. Sch. Peggy, id. 57. In Ulary v. The Ship Washington, Crabbe, 204, the entry in the log-book on the day the men left was they ran away," and on subsequent days, "absent without leave." Held, that the latter entries were explanatory of the

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cessive hours. But where the absence without leave, and without good cause, does not come within the terms of this definition, it is undoubtedly still an offence, punishable as such, and makes the seamen responsible in damages for the consequences.2 It first, and sufficient. But see The Rovena, Ware, 309, 313. In The Hercules, 1 Sprague, 534, the entry was, "May 16th, Aleck and William absconded, and defied us." "May 17th, men still away." This was held not sufficient, because the men might have been away on both days without being absent forty-eight hours. The entry is necessary although the absence is permanent. Knagg v. Goldsmith, supra. The entry in the log is not conclusive, and parol evidence is admissible to falsify it. Malone v. The Brig Mary, 1 Pet. Adm. 139, 140; Whitton v. The Brig Commerce, id. 160; Jones v. The Brig Phoenix, id. 201; Thompson v. The Ship Philadelphia, id. 210; The Rovena, Ware, 309, 312; Orne v. Townsend, 4 Mason, 541; The Hercules, 1 Sprague, 534. The question has arisen, in the case where a seaman goes on shore without leave, and the ship sails before the expiration of the forty-eight hours, whether this amounts to a statute desertion, he being unable to return to the ship. Mr. Justice Story, in Coffin v. Jenkins, 3 Story, 108, 113, speaking of this said: "In short, the argument went to this, that it was not a desertion at all, either by the maritime law or under the statute, unless at the time of the seaman's leaving, he left it with the intent absolutely to desert, or animo non revertendi. To this doctrine I cannot, in any manner, subscribe. I understand the statute to declare, that an absence from on board the ship without leave, is a forfeiture of his wages, and a desertion, unless he actually rejoins the ship within forty-eight hours; and that it is at his own peril, under such circumstances, to absent himself; and if he is unable to rejoin the ship within the forty-eight hours, the forfeiture is complete and absolute. The ship is not bound to wait for him; but he is bound to rejoin the ship within that period, suo periculo." This language would clearly seem to embrace the case of a seaman leaving the ship without leave, but with no intention of deserting. To this extent the remarks are obiter, for, in Coffin v. Jenkins, the seaman left animo non revertendi. In The Union, Blatchf. & H. Adm. 545, 559, Judge Betts held, that where the seamen left, intending to return, if the ship sailed before the expiration of forty-eight hours, their wages were not forfeited. But this ruling was reversed on appeal. Ship Union v. Jansen, 2 Paine, C. C. 277. If the return is prevented by the act of the captain, they are entitled to their wages. The Westmorland, 1 W. Rob. 216. If seamen, who are absent without leave, attempt to return to the ship at night without saying who they are, or what they want, this is not a return which will remit the forfeiture. Ulary v. The Ship Washington, Crabbe, 204. See also Allen v. Hallet, Abbott, Adm. 573. So, if they return, but refuse to do duty. The return must be unconditional. The Brig Cadmus v. Matthews, 2 Paine, C. C. 229. See also The Ship Philadelphia, Olcott, Adm. 216.

The Rovena, Ware, 309, 313; The Cadmus, Blatchf. & H. Adm. 139; Borden v. Hiern, id. 293.

2 In Cloutman v. Tunison, 1 Sumner, 373, a desertion was not proved, but the second mate was absent without permission during the unlivery of the ship, and a

seems, however, that if the desertion takes place before the vessel is moored on her arrival at the end of the voyage, it is a statute desertion, working a forfeiture; but if it occurs after she is moored, and before the full unlivery of the cargo or the discharge of the crew, it is not a desertion under the law merchant,2 but gives to the ship-owner his claim for compensation in damages.3 A desertion of a part of the crew does not exonerate the remainder from their obligation to perform their duties, although it may make these duties more onerous. And it is no justification for a

desertion that the crew were ordered to work on Sunday.5

forfeiture of two months' wages was decreed. See also The Rovena, Ware, 309, 317; Snell v. The Brig Independence, Gilpin, 140; Knagg v. Goldsmith, id. 207, 217; Lang v. Holbrook, Crabbe, 179; The Ship Philadelphia, Olcott, Adm. 216; Herron v. Schooner Peggy, Bee, Adm. 57; The Martha, Blatchf. & H. Adm. 151; Jansen v. The Heinrich, Crabbe, 226. In Turner's Case, Ware, 83, it was held that the master might retake the person so leaving and confine him on board, although it was in a home port.

1 The Pearl, 5 Rob. Adm. 224; The Baltic Merchant, Edw. Adm. 86.

2

* Hastings v. The Ship Happy Return, 1 Pet. Adm. 253; Cloutman v. Tunison, 1 Sumner, 373; Francis v. Bassett, 1 Sprague, 16; The Ship Elizabeth v. Rickers, 2 Paine, C. C. 291; The Martha, Blatchf. & H. Adm. 151, 157; Granon v. Hartshorne, id. 454; Knagg v. Goldsmith, Gilpin, 207; Jansen v. The Heinrich, Crabbe, 226; Herron v. Schooner Peggy, Bee, Adm. 57. See also Frontine v. Frost, 3 B. & P. 302; M'Donald v. Joplin, 4 M. & W. 284; The Two Sisters, 2 W. Rob. 125. See contra, Webb v. Duckingfield, 13 Johns. 390.

* See cases supra, p. 104, note 2. This was claimed in Francis v. Bassett, 1 Sprague, 16, but refused on the ground that the seaman was suffering from disease to the extent which should excuse him from the performance of a contract for personal service.

See ante, p. 43, note 1.

3 Ulary v. Ship Washington, Crabbe, 204.

CHAPTER XVI.

OF PILOTS.

SECTION I.

WHO PILOTS ARE AND WHAT THEIR DUTIES ARE.

THIS word had formerly, and now has, perhaps, in some of the countries of Europe, two meanings: one was the pilot for the whole voyage, or the sea pilot,1 the other is the pilot who carried the ship out of or into the harbor to which the pilot belonged, or the coast pilot. But it is in the latter sense that the word is generally used with us. A pilot is for many purposes considered as a mariner or seaman,2 but has duties and rights which are quite peculiar to him. The office is one of so much importance that it is regulated by law in most civilized countries. In this country, an act of Congress expressly authorizes the several States to make their own pilotage laws; and questions under these laws are cognizable in the State courts.4 The law of 1789 provides

1 L'Ord. de la Marine, liv. 2, tit. 4. See also Keeler v. Fireman's Ins. Co. 3 Hill, 250; Steamship Co. v. Joliffe, 2 Wall. 450.

2 Ross v. Walker, 2 G. Wilson, 264; The Anne, 1 Mason, 508; Hobart v. Drogan, 10 Pet. 108.

3 Act of 1789, c. 9, § 4, 1 U. S. Stats. at Large, 54. By the Act of 1837, c. 22, 5 U. S. Stats. at Large, 153, the master of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, may employ a pilot duly licensed by either State.

* In The Wave, Blatchf. & H. Adm. 235, it was held that the United States courts had concurrent jurisdiction with the State courts to entertain suits for pilotage. On appeal the decision was reversed, on the ground that the act of Congress which adopted the State laws, was passed prior to the passage of the Judiciary Act, and that cases of pilotage was therefore not embraced in the general delegation of admiralty jurisdiction to the district courts. Schooner Wave v. Hyer, 2 Paine, C. C. 131. See also Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, 207; Low v. Commissioners of Pilotage, R. M. Charlt. 302, 314. But in Hobart v. Drogan, 10 Pet. 108, Mr. Justice Story held that the United States courts had a concurrent jurisdiction with the State courts, although