And 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 suc

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. 151; 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 panam, 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 Reporter, 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 fortyeight 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. Sherwood v. McIntosh, Ware, 109.

1 Act of 1790, ch. 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 shall 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, 119; 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, 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 logbook 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 first, and sufficient. But see The Rovena, Ware, 309, 313. The entry is necessary although the absence is permanent. Knagg v. Goldsmith, supra. The entry in the log is not conclusive, and parol is admissible to falsify it. Malone v. The Brig Mary, 1 Pet. Adm.

cessive hours.1 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 seaman responsible in damages for the consequences.2 It 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; 3 but if it occurs

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 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 fortyeight 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, Mr. Justice 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.

1 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 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.

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

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 lawmerchant, but gives to the ship-owner his claim for compensation in damages.2 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.3

SECTION IX.

OF THE CONTRACT OF THE SEAMEN.

4

We would add the general remark, that the contract between a seaman and the owner of the ship, or the master as his agent, is essentially a contract of hiring and service. All that is implied in such contracts by the law generally belongs to their contract; as, on the one hand, the doing the work faithfully, obeying all proper orders and directions, and possessing and exerting the knowledge, skill, and care requisite for doing in a proper way the service undertaken; and, on the other, good treatment, and due payment. All of these are somewhat modified by the peculiar nature of this contract, or relation, and by the statutes to which it has given rise. But so far as these modifications or qualifications do not apply specifically, we find the general principles of the law in force.

Seamen may be hired and payment promised in four ways. They may be employed for a certain voyage, to receive a certain

1 Hastings v. The Ship Happy Return, 1 Pet. Adm. 253; Cloutman v. Tunison, 1 Sumner, 373; 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.

2 See cases supra, p. 475, note 2.

3 See ante, p. 448, note 1.

4 The Dawn, Ware, 486, 494; The Brig Osceola, Olcott, Adm. 450, 461; The Cadmus, Blatchf. & H. Adm. 139; Matthews v. The Cadmus, 2 Paine, C. C. 229.

proportion of the freight earned; 1 but we doubt whether this is ever practised in this country, unless, perhaps, in small coasting vessels. They may be hired for a certain voyage,2 or by the run, to be paid a round sum at the close; and this is not very unusual. They may be hired on shares, which is in practice confined to whaling and fishing voyages, with some exception in the case of coasting vessels. But the fourth, which is by far the most common and well-established practice, is to hire them for a definite voyage or voyages, or sometimes for a definite period, on monthly wages.7

5

1 The Sarah Jane, Blatchf. & H. Adm. 401; Anonymous, 1 Pet. Adm. 205, note. 2 The Debrecsia, 3 W. Rob. 33.

3 The Louisa Bertha, 1 Eng. L. & Eq. 665; Miller v. Kelly, Abbott, Adm. 564. 4 Barney v. Coffin, 3 Pick. 115; Bishop v. Shepherd, 23 Pick. 492; Coffin v. Jenkins, 3 Story, 108; Joy v. Allen, 2 Woodb. & M. 303; Allen v. Hitch, 2 Curtis, C. C. 147; The Sarah Jane, Blatchf. & H. Adm. 401; Reed v. Hussey, id. 525. The contract is one of hiring, and not of partnership. Wilkinson v. Frasier, 4 Esp. 182; Mair v. Glennie, 4 M. & S. 240; The Frederick, 5 Rob. Adm. 8; Baxter v. Rodman, 3 Pick. 435; Grozier v. Atwood, 4 id. 234; Bishop v. Shepherd, 23 id. 492; Reed v. Hussey, Blatchf. & H. Adm. 525; Knight v. Parsons, U. S. D. C., Mass., 18 Law Reporter, 96. In the above case of Barney v. Coffin, it was held that a usage that the master of a whaling ship should have a lien on the lays of the seamen for necessary clothing furnished during the voyage was reasonable in its nature, and that the lien was not lost by putting the oil marked with the ship's mark on a wharf, whence part of it was taken by one of the owners of the vessel but afterwards returned and delivered up to a general agent to be sold for the purpose of settling the voyage. In Jay v. Almy, 1 Woodb. & M. 262, it was held that the master of a whaling ship is not personally responsible for the wages of a seaman, when the vessel has been lost, and the cargo sent home. In Hussey v. Fields, U. S. D. C., Mass., 20 Law Reporter, 673, eight hundred barrels of oil had been sent home, and two thousand more taken when the ship put into a foreign port and was condemned and sold. The master settled with the men for their share on board and gave them orders on the owners for their proportion of the eight hundred barrels. The other portion was handed over to the consul to be sent home, when it was illegally seized and sold. The owners claimed, that as the crew were only entitled to share the net profits of the voyage, the portion they had received should be debited to them as against the whole amount of oil realized by the voyage. But the court held, that the captain, in making the disposition of the property, acted as the agent of the owners and not of the crew, and that the latter were entitled to their proportion of the eight hundred barrels.

5 See Wait v. Gibbs, 4 Pick. 298.

6 The Crusader, Ware, 437, 441.

7 The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; The Cadmus, Blatchf. & H. Adm. 139. See also, The Steamboat Hudson, Olcott, Adm. 396. It is sometimes important to determine whether the contract is for the entire voyage at so much per month, or for that rate so long as the party remains during the voyage. In Taylor v. Laird, 1 H. & N. 266, 38 Eng. L. & Eq. 281, the following letter was written to the

If a female serves on board as a cook, or in any capacity, she is entitled to all the rights and is subject to all the disabilities of a seaman.1

plaintiff by the owner of the vessel: "I am willing to give you the command of the steamer destined for an exploring and trading voyage up the River Niger and its tributaries. Your pay to be at the rate of £50 per month, commencing from the first of December, 1853, and a commission of twenty per cent. on the net proceeds of the produce you may bring down." The plaintiff accepted the offer. Held, that this was not an entire contract for the whole voyage, but a contract which gave a cause of action for the salary as each month arose, and which, when once vested, was not subject to be lost, or divested by the plaintiff's abandonment of the voyage.

1 The Jane and Matilda, 1 Hagg. Adm. 187; Wolverton v. Lacey, U. S. D. C., Ohio, 18 Law Reporter, 672; Sageman v. Sch. Brandywine, 1 Newb. Adm. 5.