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to be well appreciated by ship-owners. The regulations regarding advance wages have been enforced so far as practicable, and no material complaint concerning their operation is heard from the owners of vessels, or from the seamen, or even from the sailors' boarding-house keepers, who were the persons mainly benefited by the former order of things, when unrestricted advances to men were allowed.
An amendment of the law relating to shipments in one particular seems necessary and proper.
There is no good reason why the Government should pay for the shipment of seamen to be employed in harbors or on rivers where the trips are short, or when the men remain on board for another trip. Under a recent decision of the courts, overruling a decision of the Treasury Department, shipping commissioners can charge for shipments on steamers making regular trips on rivers. In such cases the regularity and shortness of the trips increase fees disproportionately, and as there is no very good reason for the performance of the service by a Government officer, the passage of the following amendment to the existing laws is recommended:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no compensation shall be paid or allowed to United States shipping commissioners, either under the act approved June nineteenth, eighteen hundred and eighty-six, entitled "An act to abolish certain fees for official services to American vessels," and so forth, or any other act, for the shipment of a seaman in the vessel from which he was last discharged, on a voyage to a domestic port, or to a place in the British North American possessions, or the West Indies, or the Republic of Mexico, if the vessel has not been to another port since such discharge, or for the discharge of a seaman who has not proceeded in the vessel to another port since his last engagement; or for the shipment of a substitute in place of a man discharged from a vessel which has not proceeded to another port since the man discharged was shipped, unless such substitute shall be in place of a reshipped man on whose reshipment no charge was made; or for the shipment of a seaman in place of a man who is absent or has deserted or absconded since his engagement and before the vessel has proceeded to any other port, unless the latter was reshipped without charge, or for services in engaging or discharging seamen employed on vessels exclusively navigating rivers, harbors, or other inland waters.
Another amendment needed is that formerly suggested by this office, restoring the operation of the laws regarding offenses and punishments to the coasting trade, in order that discipline at sea and contracts may be enforced.
The provisions of the shipping act of 1872 were repealed in 1874, so far as they related to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific ports, or in the lake-going trade touching at foreign ports or otherwise, or in the trade between the United States and the British North American possessions. The act of 1872 contained necessary legislation regarding offenses and punishments in the case of seamen, and the courts have held that the repealing act took effect in such a manner as to prevent the application of the act of 1872 to seamen in the coasting trade. Thus in the case of a seaman who was convicted of a most atrocious and brutal assault upon a master, the court held, after conviction and before sentence, that the judgment must be arrested and the indictment quashed, on the ground that the provision of section 4596, Revised Statutes, could not now be applied to coasting vessels, although it was so applicable prior to the approval of the act of 1874.
The Bureau does not consider that Congress intended the repealing act to include such cases, and suggests the following amendment to the existing laws:
Be it enacted, etc., That the provisions of the act approved June nine, eighteen hundred and seventy-four, entitled "An act in reference to the operations of the ship
ping commissioners' act, approved June seventh, eighteen hundred and seventy-two," shall not be construed as applying to any of the provisions of chapter seven, title fifty-three, of the Revised Statutes, relating to "offenses and punishments," the provisions of which chapter shall hereafter have the same force and effect as if said act of June nine, eighteen hundred and seventy-four, had not passed.
In the last report the following amendment of section 5346, Revised Statutes, was suggested by the insertion of the following clause after the word "thereof," in the fifth line of section 5346, viz:
And every person who, upon the Great Lakes, on the northern, northeastern, and northwestern frontiers of the United States, on board any vessel belonging in whole or in part to the United States or any citizen thereof, etc.
It might be well to consider whether there might not be a limitation so that the amendment would take effect only as to vessels out of the jurisdiction of any particular State.
As indicating the interest taken by State governments in the matter and as a matter of interest to ship-owners, the following act of the Oregon legislature is inserted:
Be it enacted by the legislative assembly of the State of Oregon: SECTION 1. That section 1952 of the general laws of Oregon, as annotated by William Lair Hill, be amended to read as follows:
"SEC. 1952. That if any person or persons shall entice, persuade, or by any means attempt to persuade any seaman to desert from, or without permission of the officer then in command thereof, to leave or depart from, either temporarily or otherwise, any ship or steamer or other vessel, while such ship, steamer, or other vessel is within the waters under the jurisdiction of this State, or within the waters of concurrent jurisdiction of this State and the Territory of Washington, such person or persons shall, upon conviction thereof before any justice of the peace, or before a circuit court of this State, be punished by imprisonment in a county jail for not less than one nor more than six months, or by a fine not less than fifty nor more than two hundred dollars, or by both such fine and imprisonment."
SEC. 2. That section 1953 of the general laws of the State of Oregon, as annotated by William Lair Hill, be amended to read as follows:
"SEC. 1953. If any person shall knowingly, and with manifest intention to deprive the owner or master of any ship or vessel of the service of any seaman, harbor or secrete, or by any means aid in harboring or secreting, with the intention aforesaid, any seaman mentioned in this act, such person or persons shall, upon conviction thereof before a justice of the peace or circuit court, be punished by imprisonment in the county jail not less than sixty days nor more than six months, or by a fine of not less than fifty dollars nor more than two hundred and fifty dollars."
SEC. 3. If any person or persons shall demand or receive, either directly or indirectly, from any seaman or apprentice, or from any person seeking employment as a seaman or apprentice, or from any person on his behalf, any remuneration whatever for providing him with employment on board a sea-going vessel, he shall for every such offense, on conviction thereof before any justice of the peace or circuit court of this State, be punished by imprisonment in a county jail for a period not less than ten nor more than one hundred days, or by a fine not less than twenty nor more than two hundred dollars.
SEC. 4. If any person or persons shall demand or receive, either directly or indirectly, from any owner or master, or agent of owner or master of a sea-going vessel, any remuneration whatever, other than a fee of ten dollars per man, for supplying any seaman or apprentice to be entered on board such sea-going vessel, he shall for every offense, on conviction thereof before a justice of the peace or circuit court, be punished by imprisonment in a county jail for a period not less than ten nor more than one hundred days, or by a fine not less than twenty nor more than two hundred dollars.
SEC. 5. If any person, not acting in an official capacity, shall board or attempt to board any ship or vessel on the Willamette or Columbia River, not engaged in the carrying of passengers for hire, without the consent first obtained of the captain, master, or other officer in command thereof at the time, such person, on conviction thereof before any justice of the peace or circuit court, shall be fined not less than twenty nor more than one hundred dollars, or be imprisoned in a county jail not less than ten nor more than one hundred days, or both.
SEC. 6. No officer or seaman of a sea-going vessel or ship shall be arrested or imprisoned for debt; and any officer executing a process of arrest for debt upon such officer or seaman shall, upon conviction thereof before any justice of the peace or
circuit court, be fined in a sum not less than twenty nor more than one hundred dollars.
SEC. 7. It is hereby made the duty of the mayor and common council of the cities of Portland and Astoria, in this State, severally to appoint or designate a person or officer, whose duty it shall be to see that this act is not violated and that the provisions thereof are enforced; and such person or officer, so appointed or designated, shall have all the authority and powers of a peace officer, and may make arrests for violations of the provisions of this act, and shall perform such other duties as to the enforcement of this act as may be enjoined upon him by the common council of said cities respectively, and shall receive such compensation for his services as said common council may by ordinance provide.
In many cases the supply and the quality of the seamen are affected by the operation of the sailors' unions, especially upon the Pacific coast. As an instance an extract from a circular prepared in this office for the information and guidance of United States shipping commissioners is inserted:
SEAMEN SHIRKING DUTY.
[Opinion of Court.]
DEADY, J.-This suit is brought by the libelants, John Raftery and Jorgan Olsen, against the ship T. F. Oakes, to recover the sum of $150.65 each, alleged to be due them as wages for services as seamen thereon.
It is alleged in the libel that on May 25, 1888, the libelants shipped on the Oakes, then lying at the port of San Francisco, for the voyage from there to Nanaimo, B. C., thence to Acapulco, and thence to a port of discharge on the west coast of the United States, the voyage not to exceed six months; that on said day the libelants agreed with the master of the Oakes, Edward W. Reed, to serve as able-bodied seamen on said voyage at the wages of $40 a month, and signed articles to that effect; that the libelants performed their agreement, as seamen on board said vessel until it arrived at Acapulco, when and where the master put the libelants ashore, without just cause, and without the payment of their wages; that the Oakes arrived at Portland on September 17, 1888, when and where she completed her voyage, and is now lying; and that, the premises considered, the libelants are each entitled to recover the sum of $150.65.
The answer of the master and claimant, E. W. Reed, admits the allegation of the libel as to the voyage of the Oakes and the shipment of the libelants as seamen thereon, but denies that the libelants performed their agreement, or that they were discharged without just cause, or without the payment of wages, or that there is anything due either of them on account of the voyage.
It is also alleged in the answer that during all the voyage the libelants were insubordinate, and refused to obey the lawful commands of the officers of the vessel, and by persuasion and threats prevented the rest of the crew from doing their duty thereon; that on account of said insubordination and misconduct, the libelants were taken before R. W. Loughery, the United States consul at Acapulco, Mexico, where they were discharged, and paid in full all wages due them," on "account of said insubordination and continued disobedience to the lawful commands of the officers of the vessel."
The shipping articles, in addition to the description and duration of the voyage, provide that the crew must "load and unload all cargoes if required,"-" bend and unbend sails, trim, coal, and dock the ship at her port of discharge, if required, or pay for the same being done;" and that "no dangerous weapons or grog allowed, and none to be brought on board by the crew," nor any "money advanced during the voyage."
The articles also contain the general stipulation in the form of the agreement given in the table (A) of the schedule to the shipping act just following section 4612 of the Revised Statutes to the effect that the "crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be all times diligent in their respective duties, and to be obedient to the lawful commands" of their superior officers, 66 whether on board, in boats, or on shore."
Attached to the articles is a certificate, dated August 11, 1888, given under the hand and seal of the United States consul at Acapulco, Mexico, R. W. Loughery, to the effect that the libelants on July 26 were duly discharged at that port from the ship T. F. Oakes of New York, "according to law," "for insubordination;" the master, C. W. Reed, "having deposited in this consulate" the sum of $82.66 as wages for each of them, and $80 extra wages.
It also appears from the testimony of the libelants that they are members of what is called "the Coast Seamen's Union of the Pacific Coast." A letter was found by the mate in the forecastle of the vessel at this port, dated "August 9, 1888," and
addressed as follows: "John Raftery, and crew of T. F. Oakes-Dear Comrades.". It purports to be written by one "H. Furwell," on paper with the title of this "Union,' and the words, "Headquarters, San Francisco, Cal., 613 East street," printed at the head of the sheet. It reads as follows:
“Your letter from Acapulco has come to hand, has been read in here in the office a dozen times, and has caused much merriment. It was thought here that he (the master of the Oakes) would try to get rid of you, and evidently he is trying pretty hard, but the policy which you have followed will make that just about impossible. With reference to weighing out the provisions for each man, Hutton says there are no law on the point, and no decisions either, and that the point is a delicate one and had better not be touched; but one man should be present to see provisions weighed. About keeping up on afternoon watches, he says that Hoffman held that when work was necessary the men will have to do it, and, further, that the men are not competent to judge whether it be necessary or not; so you, inasmuch as it will be a judge and not a jury's decision you would have in any suit for wages, it would not be safe to try. You have your medicen, though, first in the coals and then at anything which comes along. You know as long as you pretend to work, as long as you make an effort, no matter how small, he can do nothing; as long as you work he can do nothing. If only 25 tons of coal get out per day you are doing as much as you can, you know; and that settles it.
"In taking in sails you may be an hour to do what could be done in five minutes. You may be four hours hoisting a top-sail, and he can do nothing; if his sails blow away you can not help it, and so forth. You know pretty well how to do that, anyhow."
Then follows a page or so on the state of the sailor market in San Francisco, and the prospect for the winter.
A certificate under the hand and seal of the same consul at Acapulco, on August 15, 1888, addressed "To whom it may concern," was offered in evidence. It is to the effect that the Qakes arrived at that port on July 21, with a crew reported by the master as disposed to resist discipline and refuse duty;" that the libelants "were supposed to be the ringleaders, and after two or three days were discharged and paid off, believing that when they were removed there would be peace; on the contrary, the next day nearly all the men refused duty,” naming them. The master "was compelled to hire men from shore to unload the coal, of which there were 3,000 tons on board. The obdurate seamen refusing duty were sent to prison by me, and were kept confined by the captain of the port until the ship was ready for sea.'
The libelants admit that soon after the arrival of the vessel at Acapulco they were taken before the consul at that port, and there discharged by the master, with the consent of the consul, for insubordination, and that the consul afterwards procured a passage for them on the steamer to San Francisco, and tendered them the balance of the wages deposited with him, which they refused to take.
By the general maritime law a master is authorized to discharge a seaman at either a foreign or domestic port for continued disobedience or insubordination, and such discharge terminates the relation of such seaman to the vessel and his right to compensation for the unperformed part of the voyage.—(Hutchinson v. Coombs, 1 Ware, 70; 2 Pars. Shipp. & Adm., 80.)
By section 4580 of the Revised Statutes, as amended by the act of June 26, 1884, a consul is authorized to discharge a seaman on the application of the master, or that of the seaman. The causes for which he may discharge on the application of the seaman are specified, but not in the case of the application by the master. In either case, before a discharge is made, the consul must require of the master payment of the wages then due the seaman; but, as I read the statute, the payment of extra wages is not required where a seaman is discharged for misconduct. Nor should it be. There is no ground on which such a seaman is entitled to any such consideration. By section 1152 of the Revised Statutes the President is authorized to prescribe regulations concerning the duties of consular officers. In the book of "Consular Regulations," approved February 3, 1888, it is stated (section 178) that a master can not lawfully discharge a seaman in a foreign port without the intervention of a consular officer, and that one of the usual cases in which a seaman may be discharged is his "misconduct." It is also provided therein (section 181): "When a seaman is discharged in a foreign port, it is the duty of the consular officer to attach a certificate thereof to the crew-list and shipping articles," for which a form is given on page 573. It appears, then, that the discharge of the libelants at Acapulco was in due form; and the only question is, was it done on sufficient cause, and what is the effect of it? The causes for which a seaman may be discharged on the master's application not being specified in the statute, must needs be, in the language thereof, such as are sanctioned by "the principles or usages of maritime law, as recognized in the United States."
In my judgment a premeditated and persistent shirking and slighting of duty, as well as a deliberate and continued attitude of insolence and defiance to his superiors,
on the part of a seaman, is such a cause; particularly where it appears that the seaman thereby intends to coerce or constrain the master in the discharge of his duty. Such conduct is in effect disobedience and insubordination in its most injurious and provoking form.
The certificate of the consul is not conclusive evidence in this suit on that point, but it is prima facie evidence that the libelants were duly discharged for insubordi nation. In the case of the steamer Uncle Sam (1 McAll., 77), it was held that the certificate of the consul to the discharge of the seaman does not preclude the court from inquiring into the cause of the discharge. But the certificate is made by a public officer, in pursuance of a statute, and is therefore prima facie evidence of the pertinent or material facts contained therein as against the libelants. (1 Whart. Ev., §§ 640-643; The Nith, ante, 86.)
And first, as to the letter from the secretary or agent of the "Coast Seaman's Union," H. Furwell. There is no doubt in my mind as to its genuineness. The internal evidence is very satisfactory; and it is equally clear that it was written in reply to one from the libelant Raftery, as spokesman for the crew, from Acapulco, detailing the progress of the voyage, including the contest with the master for the rule of the vesBel. But it is quite certain that the libelants never saw the letter, as they left Acapulco for San Francisco at the date of it. Under the circumstances it is fair to presume that it was delivered to some of the "crew," to whom it was addressed, as well as Raftery. However, it betrays the animus and ideas of the "Union," of which these libelants are members and co-workers, and plainly discloses the illegal and dishonest practices and conduct to which a crew of that kind might and would resort, for the purpose of having their own way "on board ship," and getting along with as little work as possible.
The letter is material as showing the probable character of Raftery's to the "Union," to which it is a reply, as well as the probable state of mind and sense of duty, or want of it, in which the libelants went on board the Oakes. They already knew, as the letter states, how to idle along and consume a day in discharging 25 tons of coal instead of 250, to be an hour taking in sails that could be done in five minutes, to be four hours hoisting a top-sail, or let the sails blow away.
The oral evidence consists of the testimony of the libelants on their own behalf and that of the mate, who was also discharged, with his consent, at the same time they were; and the testimony of the master and second mate, now mate, for the claimant.
The libelants are young men. Raftery is entered in the articles as of New York, aged twenty-seven years, and says he has been two and a half years on this coast. Olsen is entered as of Norway, aged twenty-two years. He says he has been five years at sea and two on this coast. He is apparently candid and outspoken, and, while claiming that he did his duty, substantially admits several instances of gross misconduct. Raftery is sullen and taciturn, and denies most of the instances of misconduct alleged against him in the testimony of the master and second mate.
The first mate appears to be a pleasant, plausible man, about fifty-five years of age, with considerable experience at sea. On his examination-in-chief he stated unqualifiedly that the crew was a good one, and did their duty well, and that there was much complaint of the food on the ship. But on cross-examination he was forced to admit that the trouble about the food was not during the voyage, but only at Nanaimo, while the vessel was loading with coal, and that the material was sufficient in quantity and quality, but it was not well cooked; and also that he had made an entry in his log charging Olsen with misconduct and insolence to the master in the Strait of Fuca, and signed one to the same effect, and more in the official log of the ship. My impression is that he is more concerned to support the case of the libelants than to tell the whole truth.
The treatment of the crew by the master and his officers was kind and considerate. The ship was well provided, and the voyage does not appear to have been a hard one. No complaint of any specific ill usage or injury is made by or for any one.
Raftery was in the habit of putting himself forward as spokesman for the crew or any member of it whenever an opportunity offered. He once said to the second mate, apparently in justification of such impertinence, that a 99 "union crew always had a leader, and he was leader of that crew.
On one occasion, when the yards were being braced, the second mate said to the men handling the braces or ropes, "Run!" Raftery, who was next to the block, said "No, don't run !" and the men didn't run.
On another occasion he refused to help serve out water because it was not yet 6 o'clock, as it was contrary to the coast rule to "turn to " before that time.
On the first day out from San Francisco, Olsen produced a loaded revolver, and discharged three barrels over the forecastle head. The master ordered him to give up the pistol, which he refused to do until the articles were shown him, prohibiting the bringing of any "dangerous weapon" on board. His conduct in this matter was lawless and defiant. Presumably, the articles were read to him by the shipping com