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
THE SAN MARCOS.
if additional burdens or sacrifices are imposed upon the seamen without adequate remuneration, the court feels itself authorized to interfere, and moderate or annul the stipulation." Mac\. Shipp. 223; Abb. Shipp. *610, note; 2 Pars. Shipp. 99; 3 Kent, Comm. *193; The Mentor, 4 Mason, 84, 100; The Minerva, 1 Hagg. 347; Brown v. Lull, 2 Sum. 443, 449; Brink v. Lyons, 18 Fed. Rep. 605.
One of the objects of the various acts of congress in reference to seamen is to protect them against their own imprudence, as well as' against being overreached by their employers. By providing forthe punishments and forfeitures specified, these acts, by implication, forbid the exaction of greater punishments or forfeitures for the same causes. If further penalties and forfeitures could be legally enforced by the mere change of the form of the shipping articles, the protectiondesigned by congress would be evaded. In so far as the articles provide for a forfeiture of wages in excess of that provided by law for the same offense, it is contrary to law, and not in conformity with section 4511. An entire forfeiture of wages must be limited to cases of desertion. Whe,ther these provisions of law are now applicable to coastwise voyages or not, the principles involved in them should govern the courts in dealings with seamen. They but reflect the spirit of the maritime law as laid down in the authorities above cited. Following the general rule of the maritime law" which abhors the entire forfeitures that would often leave seamen helpless and dependent, (The Mentor, 4 Mason, 100,) and which refuses to enforce such forfeitures except for gross misconduct, a forfeiture of entire wages, such as is here claimed, under these articles, should be limited to cases of that character; In a case not amounting to desertion, and not of any aggravated misconduct, the forfeiture, upon the analogy of the statute, should not exceed more than two days' pay, etc., and the expense of hiring a substitute.. " In this case no substitute was hired; the ship incurred no loss; and there was no voluntary absence on the part of the libelant for any period after the day when the ship sailed. I deduct, therefore, two days' pay, and allow a decree for nine days' wages, with the disbursements of suit.
NATIONAL STEAM-SHIP CO.
(Di8triot (Jourt, 8. D. New York. May 17, 1886.)
CARRIER-OF GOODS BY VESSEL-DELIVERY OF CARGO-DISPUTE AS TO QUA.l'r' TITY-CARRIER'S RIGHT TO IMMEDIATE SETTLEMENT OF CONTROVERSY.
A carrier is entitled to have settled upon the spot, in some form, any dispute concerning the number of articles delivered by him. He cannot be required to adjourn the controversy to a distant place, or a future time, fordetermination and settlement in a remote forum. The delivery is conditional only until such a receipt is either given or waived.
SAME-eAllRIER's RIGHT TO HAVE RECEIPT-ATTACHMENT OF CARGO FOR RECEIPT-TALLIES DISCORDANT-SUBSEQUENT DELIVERY TO OWNERS-COSTS.
Where a dispute arose, upon discordant tallies, between the National Steamship Company and the schooner M., concerning the number of certain pack· ages delivered by the former to the latter; and the schooner sailed away with the articles on board without any retally, or adjusting the controversy, or give ing a clean receipt for the number she had actually received; whereupon the steam-ship company attached the whole of the articles, and also the schooner: held, that the steam-ship company was entitled to a receipt: and that the schooner, in departing without settling the controversy, and without giving or tendering a clean receipt, acted at her peril; and that the libel was therefore legally filed to arrest the whole quantity. Held, further, that as, after the bonding of vessel and cargo, the cargo had been delivered to the owners, and the latter had been compensated by the schooner for all shortage, no further question remained to be adjusted but that of costs and expenses, and these the libelant is entitled to recover, as the schooner was in fault, ana the evidence does not establish any fault in the libelant.
B. ADMmALTY-JuRISDIOTION-IKPLIED CONTRACT TO GIVE RECEIPT-MARlTIM&
The claim of the libelant in this case rested wholly upon the obligation of the implied contract of the schooner to give a clean receipt for the packages taken aboard, and to have any doubt about the number settled before sailing. Held, that the obligation of the schooner to so receipt for the cargo was a maritime obligation within the jurisdiction of the admiralty.
John Ohetwood, for libelant. Wilcox, Adams a Macklin, for ctaimants.
BROWN,J. In March, 1886, the steam-Ship Qneen, of the libelant's line, arrived.in this port with 7;775 pa.ckages of iron wire, belonging to the American Screw Company of Providence. The company were in the habit of receiving similar consignments, and had arranged with the owners of the Morrell, and of other vessels, to take their goods from the dock when landed, to be transported to Providence. The wire in question was all landed upon the dock, was weighed by the custom-house weigher, and placed in six piles, on different parts of the dock. The Morrell took it all on board, and kept tally of the bundles taken. An employe of the libelants also kept tally; and the custom-house weigher kept tally of the weight, and, to a certain extent, of the bundles. The tally of the libelants' man exceeded by one the number stated in the bill of lading, making 7,776; the Morrell's tally made 108 bundles less. The captain of the Morrell refused to give a clean receipt for the full number of the steamer's
Reported by Edward G. Benedict, Esq., of the New York bar.