#### Austin *versus*Dewey.

Oct. Term, 1828.

A seaman, charged with disobedience of orders and mutinous conduct, was voluntarily discharged from the ship by his captain, who expressed regret for the difficulties which had occurred, and promised to pay the seaman his wages. In an action brought by the latter against the master, *it was held,*that the captain’s promise operated as a waiver of any forfeiture of wages by the seaman, for disobedience of orders during the voyage.

Certiorari from the Marine Court. The present defendant brought an action in the Marine Court against the plaintiff, as master of the ship Savannah, to recover the amount of his wages, as a seaman on board that vessel.

The defence setup was disobedience of orders and mutiny *on*the part of the seaman, and desertion of the ship before her cargo was discharged.

This defence was met by proof, that the seaman left the vessel with the captain’s- permission, who promised, after the arrival of the ship, to pay him his wages, and expressed regret for the difficulties which had occurred on the passage.

The cause was tried before the justices of the Marine Court, without the intervention of a jury, and judgment being rendered in favour of the plaintiff, the defendant below brought the cause into this court, by *certiorari.*

*Mr. Gerard,*for the captain,

went into an examination of the testimony to prove the facts as to disobedience of orders: but as they are not noticed in the opinion of the court, they are not here set forth. He contended, that the shipping articles were conclusive evidence of the contract between the parties: *[Abbot on*
      *239
      *Ship.*472.] and that seamen, by disobedience of orders, forfeit their wages. *[He cited Abbot,*456, 7. *and the act of Congress, of July*20, 1790.]

*Mr. Clizbe,*for the defendant,

examined the testimony at large, and the points of law. He contended, that the defence being founded entirely upon a clause in the agreement between the master and seaman, is not to be favoured, because the latter can hardly be supposed to be acquainted with the extent of his obligations. For disobedience of orders, he is liable to punishment, and the court will not willingly superadd another. *[He cited*2 *Mason’s Rep.*556.]

Oakley, J.

The defendant in error sued the plaintiff in error in the Marine Court, for his wages as a seaman on board the ship Savannah. The defence to the action rested on the ground, that the seaman had been guilty of disobedience of orders and mutinous conduct during the voyage, and that he had left the ship before the end of the voyage, without the permission of the captain.

It is not necessary to consider, whether any act of disobedience or mutiny, on the part of the plaintiff below, was proved, or whe- • ther such act, if proved, worked a forfeiture of his wages. It sufficiently appeared, from the evidence in the case, that after the vessel had arrived at New-York, the captain voluntarily discharged Dewey from the ship; that he expressed his regret that any difficulty had occurred during the voyage, and promised to pay him his wages. Such a promise by the captain, under the circumstances of the case, we think operates as a waiver of any forfeiture of wages by disobedience of orders, during the voyage. The court below appear to have rested their judgment on this view of the case. We think they were right, and that their judgment must be affirmed.

' *Judgment affirmed.*

[Ira Clizbe, *Att'y for the deft, in error.]*

[Henry M. Western, *Att’y for the pl'ff in*error.]