¶1: — As the case is presented before the Court, I think Evans is entitled to be discharged.
¶2In my opinion he is not liable to be treated as a deserter, under the United States Navigation Act of 1790 ; or by reason of any stipulation in his contract as evidenced by the shipping articles ; or under the general maritime law.
¶3In regard to the binding force of the usage or- custom which is alleged to exist at this port, by which seamen shipped under the same circumstances with Evans, are obliged to remain by their ships for eiglit days after their return at the end of the cruise, I do not think it is necessary in this case that I should give a positive opinion. I have considerable doubt as to whether the usage is shown to have become sufficiently established, and to be so definite and reasonable, that the Court should regard it as binding.
¶4But, admitting that such a usage does exist, and that Evans left his ship without leave, before the eight days after her arrival had expired, but after she had been anchored in safety within the harbor, he could not for that reason be arrested and imprisoned as a deserter. He may have made himself liable for the customary charge exacted in such cases under the. usage which is set up, or to the payment of the wages given to a person employed to work in his stead, during the eight days, if anyone had been employed for that purpose, which is not the case.
¶5He cannot be treated as a deserter from his ship during the voyage, under the United States Act of 1790, because no entry of his having quitted the ship without leave was made in the ship’s log-book, and when arrested he had not been absent from the ship forty-eight hours. In fact he had not been absent twenty-four hours.
¶6In my opinion, he cannot be treated as a deserter under the general maritime law, because it is not satisfactorily proved that he left the ship with the intention to desert. Assuming that a binding usage or custom has been shown, he was not liable to be arrested as a deserter, under the general maritime law, simply because he went on shore without leave, unless he intended to desert, which in my opinion he did not, from the facts of the case as they appear before me.
¶7The main ground upon which he is entitled, in my opinion, to be discharged, is that the ship having arrived within the harbor and been anchored in a place of safety, the cruise for which Evans shipped was ended, so far at least that he could not, for quitting the ship without leave, be arrested and imprisohed as a deserter.