ers.

2 Benedict, 289.

Arrest of desert

1 Curtis, 69.

Desertions to be noted on crew list.

Desertion

con

master; or when the voyage is altered in the articles without consent.

292. A casual overstay of leave, therefore, is not desertion, nor is the going ashore without leave but with the intent to return. The Consular Officer will be careful to inquire on these points, as sailors on shore often overstay their leaves of absence. He will also take care to assure himself that a reported desertion has not been fraudulently favored or permitted by the master for the purpose of avoiding the payment of extra wages upon a regular discharge of the seaman. 293..In countries with which the United States have stipulations by treaty or convention providing for it, or where it is permitted by the local authorities, Consular Officers may cause the arrest of deserters and imprison them until required by the master, or send them on board (Forms No. 31, 32, and 34). The imprisonment, however, is only in order to detain the deserter, and not to punish him; and there is no authority for its infliction at the request of a master after the discharge of a seaman from his contract with the vessel. Apart from the stipulations of treaty, the local laws of a country often provide for the arrest of deserters, in order to prevent their becoming a public charge, and these laws may be availed of by Consular Officers. Authority for the arrest and detention is also granted in some countries as a matter of comity or has the sanction of long established usage. But in the absence of a treaty or convention, a Consular Officer cannot claim as a right from the local authorities the detention or return of a deserter.

294..It is the duty of a master when a desertion occurs to note the fact on the list of the crew, and to have the desertion officially authenticated at the port or place of the Consular office where it takes place, if it is possible; if not, at the Consular office at the port first visited by the vessel after the desertion, if it shall have occurred in a foreign country. The form of the note is given in Form No. 33. If the vessel is at a port where there is a Consular Officer, it is the duty of the master to report to the latter the desertion of a seaman within forty-eight hours thereafter.

295..The circumstance that higher wages are now paid by masters. to seamen shipped in the United States than to seamen

nived at or incited

shipped in many foreign ports is known to be taken advantage of by masters to rid the vessel of the crew engaged in a home port and to ship a new crew abroad at a lower rate of wages. It is understood that to this end desertion is often permitted or connived at, that extra liberty is granted in the expectation that the seaman will not return to duty; or that, if he remains by the vessel, harsh and unusual tasks are imposed or other improper measures taken to incite him to desert. These facts, together with the additional facts that desertions have of late largely increased and that the provisions for the relief of destitute seamen have in many instances been injudiciously used for the relief of deserters, make it necessary to enjoin upon Consular Officers to take every proper measure to discourage and defeat any proceedings on the part of masters under which seamen are permitted or forced to desert and subsequently come upon the Consulate for relief. And with this view they are forbidden to certify the desertion list of any master until it is satisfactorily shown that the desertion was not consented to or abetted by the master or his officers or was not made justifiable by the conduct on their part towards the seaman, and that all proper efforts were made to recover and secure the deserter.

296.. As has been stated, it is required that the desertion of a seaman should be noted on the crew-list and officially authenticated by a Consular Officer. This provision is to be construed in connection with the provision that the bond given by the master for the return of the seaman shall not be forfeited on account of his absconding, of which satisfactory proof is to be exhibited to the Collector. No seaman can be said to abscond who openly goes off with the consent of the master or under circumstances showing the desire or intention to get rid of him. When, therefore, the Consular Officer is satisfied that the seaman did not abscond or that he could have been reclaimed if the master chose to make an effort for that purpose, he is instructed to decline making any certificate which would facilitate the master in evading the obligation of the bond for the return of his crew.

297..It is by law made the duty of Consular Officers, in cases where deserters are apprehended, to inquire into the

Absconding of sea.

men.

Desertion from

cruel treatment. R. S., sec. 4600.

Extra wages may be exacted.

Desertions to be reported within 48 hours.

facts; and if he is satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be discharged, and receive, in addition to his wages to the time of the discharge, three months' pay; and the Consular Officer discharging him shall enter upon the crew-list and shippingarticles the cause of discharge and the particulars in which the cruelty or unusual treatment consisted, and subscribe his name thereto officially. It will be observed that the enforcement of this provision is imperative, and not discretionary, with the Consular Officer, when he is satisfied that the cause of the desertion is within its terms. The disposition of the extra wages in such a case is controlled by the general provisions of statute (sections 4581 and 4584 of the Revised Statutes), under which two-thirds only of the extra wages are payable to the seaman, after deducting the expense of his relief and transportation.

298.. In like manner, when it satisfactorily appears to the Consular Officer that the desertion has taken place under the circumstances referred to in paragraphs 295 and 296, he is instructed to exact the full three months' extra wages, if the vessel is still in the port where the desertion occurred. If, however, after the vessel has sailed and the desertion has been certified on the crew-list, it shall appear that the desertion was within the provisions of those paragraphs, the Consular Officer will at once report the facts and circumstances to the Department of State, when measures will be taken, through the proper law officer of the Government, to set aside the Consular certificate and to enforce the penalty of the bond given by the master for the return of the seaman and to collect the extra wages.

299.. It is well known that masters often neglect to report desertions until a considerable period after they occur or until the vessel is about to sail, and that consequently no effort is made, or can successfully be made, for the recovery of the deserters, who subsequently come upon the Consulate. In order, therefore, to aid in the enforcement of these regulations, the regulation by which the master of a vessel is required to report the desertion to the Consular Officer within forty-eight hours after it has occurred must be strictly insisted upon. If the master neglects so to report the deser

tion, the Consular Officer is authorized and directed to decline to certify the desertion on the crew-list. He may, however, formally discharge the seaman, but only upon the condition of the payment of the three months' extra wages. In the event that it shall afterwards appear in such a case that the omission to report the desertion was unavoidable on the part of the master, or that the collection of the extra wages was, under the particular circumstances, inequitable, a full statement of the facts should be submitted to the Department of State with a view to the remission of the extra wages, if it shall be deemed proper. The Consular Officer, however, is not authorized in his discretion to forego the collection of the extra wages pending the submission of the case to the Department, but is instructed to exact them. If restitution is subsequently made, it will be done through the proper officer of the Treasury Department on a report from the Department of State.

cretion.

300..The benefits of the law are sometimes imperatively Consul to use disinvoked, as in the case of a mariner driven from his ship by intolerable treatment-treatment proceeding sometimes from reckless cruelty, and sometimes, as is believed, with a design to make the seaman leave his vessel when his services have ceased to be of value for the completion of the cruise. It is believed that the foregoing instructions will be sufficient to meet such cases; but Consular Officers are cautioned so to use the funds appropriated for relief as not to encourage seamen to break their shipping engagements from a confidence that in so doing they do not forfeit their claim to relief and protection.

301.. As has already been adverted to, authority has been provided for in treaties and conventions with several powers, under which the assistance of the local authorities may be invoked for the arrest and detention of deserters. In other countries the privilege is accorded as a matter of comity or is established by long usage. The Consular Officer will inform himself of the provisions in this respect of the particular treaty or convention by which the authority is conferred, or of the practice under the comity or usage; and in making his request he will be careful that his proceedings conform thereto. Such requests are to be made upon the

Treaty provisions as to desertion.

General principle

of treaties.

Wheaton, 178.

Limitation of ju risdiction.

Exclusive juris diction.

application of the master, and the expenses attending the proceeding are to be paid by him. A general form of request will be found in Form No. 34. In case of a refusal by the local authorities to render the aid stipulated for in a treaty or convention, the Consular Officer will at once communicate all the facts, with copies of the correspondence, to the Diplomatic Representative of the United States, if there be one in the country, and to the Department of State.

ARTICLE XVIII.

Disputes Between Masters, Officers, and Crews.

302..The general principle of the treaties and conventions of the United States with foreign powers, in reference to vessels and seamen, is that Consular Officers shall take jurisdiction over questions of wages, shipment, and discharge of seamen, and over all transactions occurring on board vessels of the United States lying in a foreign port, whether in the nature of contracts, torts, or crimes, so far as they concern only the vessels and their cargoes, and the persons belonging on board. If they concern the public peace of the country, or the rights of persons not belonging on board, they are subjects of local jurisdiction. A list of these treaties and conventions will be found in Appendix I, and the countries with which stipulations have been provided for disputes between masters and crews are mentioned in paragraph 93.

303..In some treaties the jurisdiction of the Consular Officer is restricted to differences in regard to wages; in others it is extended to all disputes whether arising out of tort or contract. And in some cases the Consular Officer is authorized to call upon the local authorities to give forcible assistance to preserve and enforce his decisions and to imprison the crew of a vessel. Whenever a case arises, reference must be made to the provisions of the particular treaty or convention with the country in which the Consular Officer is acting for the extent of his jurisdiction in these respects. 304.. By treaties with several non-Christian States and semi-civilized countries, exclusive jurisdiction has been provided for not only as regards vessels and mariners and disputes between American citizens, but also as to offenses and