¶1Phe court below have foimSed their opinion of the. plaintiff’s right to recover, altogether upon the act of congress.; (2d sess. 7th. con. c. 62. § 3.) and.if. the action is at all to .be sustained; it must lie under that statute; for-the facts in thé cáse lead irresistibly- to the conclusión, that the„ plaintiff ■below-left the vessel voluntarily, and with the consent cl the *145master. He received his wages up to the time of his discharge, and the evidence will not fairly warrant the inference that he was driven away by harsh and cruel treatment. Although the great disparity between the wages of the 'plaintiff and those given to the new crew, affords pretty good reason to conclude that the master was very willing to' part with his old crew ; yet the conclusion drawn from the facts in this part of the case, by the court below, against the plaintiff’s claim, ought not to be disturbed. . •
¶2But we think the court below have, erred in the construction given to the act of congress. This act provides, that when a seaman or mariner* being a citizen Of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master to exhibit to the consul, or certain other officers, the list of his ship’s company, and to pay to the officer, for every seaman or mariner so discharged, three months’ pay, over and above his wages then due; two thirds of which is to be paid by the consul to the seaman discharged, and the other t hird to be retained by him, for the purpose of creating a fund for the benefit of destitute American seamen, and for which sün^the consul is to account with the treasury of the United States. Assuming that the plaintiff below was discharged with his own consent, the question is, whether he can maintain an action for the two thirds of the three months’ wages required in such cases to be paid by the master. The act directs, it to be paid to the consul; it creates no obligation on the master to pay it to the seaman; and the policy of the law seems to have been, that the money should pass through the hands of the consul, who is made, in some measure, the guardian of American seamen in foreign parts, for the. purpose of protecting their rights and relieving their wants. This three months’ pay was intended as a kind of penalty upon masters of vessels, to prevent their discharging" American seamen in foreign’ countries; and to allow the seaman to call upon and receive from the master his proportion' of the penalty, would not only be against the policy of the act, but would be depriving the fund, intended to be created for the "benevolent purpose of relieving.distressed seamen, of its share. It is, likewise,' taking from the consul the commissions to which, by the act, he is entitled. Besides,, *146this is a suit against ’the owner, and not against the master of vesseí- In whatever point of light, therefore, it is viewed,the judgment cannot be supported, ' -
¶3Judgment reversed.