ship was going 300 feet; so that the ship, which was 1,500 feet, or 500 yards, ahead when she commenced her sheer, would have been carried by the tide alone 1,000 yards before the bark could have reached her, even without the tug's slackening speed. The tide alone, therefore, would have carried the ship beyond Hallett's point, a distance more than three times the space in which there was any danger from Flood rock, before the tug would have reached her. This rock does not extend more than 1,000 feet from the point where the sheer began, and must have been passed within three minutes, and before the tug could have overtaken the ship. These facts are indisputable. They were easy to be perceived and estimated upon the spot. It was evident at the time that, notwithstanding the sheer, the ship must pass through the dangerous part of the passage long before the bark could reach her. In the situation in which the Hell Gate on the bark found himself when the sheer was observed, his course being already shaped for the easterly channel, the circumstances did not require him to resort to the dangerous maneuver of changing his course to attempt the north channel, in the face of the rocks ahead. From the result, it may be admitted that if the bark had starboarded instantly, as soon as the tug starboarded, she would probably have just barely escaped injury.. But the attempt to change her course was highly dangerous,-far more so than keeping on. The pilot of the ferry-boat near by, familiar with the waters, expected the accident when he saw the attempt, and he hailed the tug in order to prevent it. As the event turned out, I have no doubt that had the view of the Sound pilot to keep ahead, or the view of the captain of the tug when he starboarded, been followed, without embarrassment from the other, no accident would have happened. The accident arose from divided counsels, and from the tug's assuming the control of the navigation without leave. Even if there were no rule determining who should control in such cases, there can be no doubt, upon the facts above recited, that the Hell Gate pilot had the better judgment, and was incurring less danger in following the ship than in attempting a change of course. But the rule is well established that the navigation is under his control, and not under the control of the tug, and that the latter is bound to follow, and not to lead. The circumstances were all as plainly in view of the pilot of the bark as of the captain of the tug. The tug-boat herself was in no danger; she was capable of taking care of herself in any situation. The Hell Gate pilot was responsible for the bark. It was a clear breach of duty on the part of the captain of the tug, and without any legal excuse or justification, that he took into his own bands the control of the navigation of the bark, by changing the conrse of the tug and bark without any previons notice to the Hell Gate pilot, and to insist upon that change, as he did, without the other's consent. It was therefore legally at his risk and peril, and the grounding must therefore be held the fault of the tug.
It constitutes no defense that if the pilot had immediately acqui. 8sced in the tug's maneuver she would have escaped. The pilot on board the bark was bound to exercise his own best judgment. He was on board the bark for that purpose, and for nothing else. That was his legal obligation to the bark; and it would have been at his own risk had he surrendered that judgment to the captain of the tug without necessity. The maneuver attempted by the tug was, as I have said, clearly a dangerous one,-apparently far more dangerous than to keep on. When the pilot shouted, "You can't do it," had the tug returned to the course of the bark, as it was her duty to do, no ac· cident would have happened. There was no obstinate persistence, however, on the pilot's part. He acted rapidly. The hails were in quick succession. The time of the delay must have been less than half a minute; and when he saw that the tug kept on and insisted upon her maneuver, he immediately put his helm hard a-starboard. In this the pilot certainly did not exceed the limits of a reasonable assertion of his own superior authority and judgment, and he yielded as soon as it was perceived that the tug insisted upon her course. The captain of the tug, in wrongfully assuming the control of the navigation, took upon himself the risk of divided opinions, and of a reasonable time necessary to procure the pilot's concurrence. In adopting, without authority, a dangerous maneuver, the tug put the pilot in a situation in extremis; and even if the pilot made an error of judgment in not acquiescing instantly, and without protest, that was not a legal fault. The fault in such cases is legally his alone who wrongfully brings the othednto that situation. The Elizabeth Jones, 112 U. S. 514, 526; S. C. 5 Sup; Ct. Rep. 468; The Bywell Oastle, 4 Prob. Div. 219. But, as above observed, there was not, in my opin· ion, any error of judgment even on the part of the pilot in his pro· test. To keep on was apparently the safer course; bnt he speedily acquiesced when he found he could not help himself, and froll that moment he did everything that he could to aid the tug. The bark is, in my judgment, without legal fault, and the libelant is entitled to a decree, with costs. In this decision I exclude all reference to the damages to the cargo, since that is no longer represented in the case; and the subsequent conduct of the bark leaves it an open question whether she is not at least jointly responsible for the damages.
THE SAN MARCOS.
THE SANMARCOS.1 MoARTHUR
(District Oourt, S.
York. May 15, 1888.)
BEAMEN-WAGES-FORFEITURE OF WAGES-SHIPPING ARTICLES-STATUTORY PROVISIONS.
In 80 far as shipping article8 provide for a forfeiture of wages in excess of that provided by statute, they are contrary to law.
In coastwise vessels. as well as in foreign trade, an entire forfeiture of wages. upon the analogy of the statute, should be limited to cases of desertion. In a case not amounting to desertion, and not of any aggravated misconduct. the forfeiture should not exceed more than two days' pay and the expense of a substitute, etc. 8. SAME-SECTION 4596, REV. ST.-STATEMENT OF CASE. Libelant. an engineer on the Mallory Line. was absent without leave when his vessel sailed. but. as the evidence indicated, had no intention of deserting. Under the provisions of the shipping articles, all wages were declared forfeited for absence without leave. Section 4596. Rev. St., provides that "any seaman, for neglecting. without reasonable cause, to join his vessel, or to proceed to sea with his vessel. or for .absence without leave, at any time within 24 hours of the vessel sailing. * * * shall be punishable by imprisonment, and also, at the discretion of the court, by forfeiture of not more than two days' pay." etc. Held that, whether these provisions are now strictly applicable to coastwise voyages or not, since the maritime law does not enforce against seamen unreasonable or. oppressive stipulations. the analogy of the statute should be followed, and but two days' wages should be deducted, the ship having been put to no expense by the libelant's absence.
SAME-ENTIRE FORFEITURE-DESERTION-ABSENCE NOT AMOUNTING TO DESERTION.
Hyland J: Zabriskie, for libelant. Butler, Stillman et Hubbard, (George Gordell,) for claimants.
BROWN, J. The libelant sued for 11 days' pay as second engineer on board the steam.ship San Marcos, of the Mallory Line, running between New York and Galveston. He signed shipping articles for the voyage on the twenty-ninth of August last, in New York; did duty on the steamer upon her outward trip, and was left behind at Galveston on account of his absence without leave at the time of sailing. He was entered in the log as a deserter, and payment of wages during the time he had served having been refused, this libel was filed to recover them. The articles contained a stipulation that if any seaman should "absent himself at any time without liberty, the wages due at the time of his disobedience or absence should be forfeited." In the case of Webb v. Duckingfield, 13 Johns. 389, a similar provision in the articles was sustained, and held to preclude recovery. But that case, as held by the cOQrt, was one of desertion, the seaman having left contrary to orders, and refused to help unlade the shiV' before the termination of the voyage. Upon the facts in this case I cannot find that
lReported. by Edward G. Benedict, Esq., olthe New York bar.
the libelant was a deserter. The vessel sailed a little before 12. Be· tween 10 o'clock and the time of sailing the libelant went ashore twice, to post two letters and get stamps. On his way to the ship the last time he met an acquaintance; who took him to another vessel some 600 yards distant, arid not long afterwards the San Marcos was seen leaving her dock. The libelant testified that he was informed by the first assistant engineer that the ship was not to sail until half· . past 1. He left his clothes on board, and, I am satisfied, had no intention of deserting the vessel. He was somewhat addicted to the use of liquor. but testified that he was sober that day. The evidence of the claimant is to the effect that the chief engineer had given notice to his department that, the vessel would sail about noon, and .that preparatiolls for departnre were making when the libelant went away the last time, some of the lines being already cast off. But tbe first officer, who saw him going, gave him no notice of the speedy departure. I have no doubt that the libelant's absence was negligent and inexcusable; but he had no intention of nut returning before the ship sailed. He was absent without leave, however, and in fault; and the claimants contend that the provision of the articles forfeit· ing his wages for that cause is a valid legal defense to this action. The absence without lell,ve in the case of Webb v. Dlickingfield, being a case of desertion, tbo decision was in fact only an application of the ordinary role of the maritime)aw, and in harmony with the sixth section of the act of 1790, and was so viewed by the court. Since that time the whole subject of desertion, and of the' penalties therefor, has been regulated by the act of June, 1872, now section 4596 of the Revised Statutes, though, by a subseqoent general exception, coastwise voyages may be now excepted. Subdivision 2 of that section provides that "any seaman, for neglecting without reasonable cause to join his vessel, or to proceed to sea with his vessel, or for absence without leave at any time within 24 hours of the vessel sailing from any port, either at the commencement or during the progress of any voyage, shall be punishable by imprisonment of not more than one month; and also, at the discretion of the court, by forfeiture of his wages of not more than two days' pay; and for every 24 hours' aLsencE\ either a sum not exceeding 6 days' pay, or any expenses which have been properly incurred in hiring a substitute." '1'he seventh subdivision of section 4511 allows shipping articles to contain regulations as to deducting fines, "or other lawful punishments for misconduct, which may be sanctioned by congress as proper." The eighth allows "other matters not contrary to law." It has long been the settled practice in admiralty to regard with disfavor all provisions of the shipping articles that are either unusual or tend to operate oppressively upon seamen. In the case of Harden v. Gordon, 2 Mason, 541, 556, STORY, J., says:
"Every deviation from the terms of the common shipping paper (whict stands upon the general doctrines of maritime law) is rigidly inspected; and