Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1834-12-04
~ From the n. y. Jonrn'I Of Commerce.
CIRCUIT COURT, Nov. ?2d.
JUDGE EDWARDS, PRESIDING
John Miller. ys. Nathaniel Gardner.

v John Miller, vs. Nathaniel Gardner.
\ This was an action to recover compensa-
ton for i'll treatment received by the plaintiff,
who was a seaman on board defendants ship.
4 Damages laid at $1,000.
From the evidence adduced on the part of
the plaintiff, it appeared that the defendant
was captain and part owner of the William
n Tell, whaling ship. In the month of De-
cember, 1899, the William Tell sailed from
this port, to the South Seas, on whaling
voyage, and the plaintiff shipped on board of
her, as a "green hand" In the month of
June, 1882, being about two years and n half
after she commenced her voyage, she touch
ed at Valparaiso, to take in stores and re-
/ fresh her crew. Whilst she remained there,
the crew had general permission to go on
shore, and the plaintiff purchased some small
stores for his own use, during the voyage
homewards. On the morning Of the day on
which the ship left Valparaiso, after she was
hove up and got ready for sea, the plaintiff
and another of the crew got permission from
the second mate to go oil shore, for the stores
/ they purchased, and left the ship in small
skiff belonging to fisherman. Whilst on
| shore, they were informed that their ship was
under weigh, and they Immediately charter
ed boat to take them on board. The ship,
| that they could not overtake her, and after
following her four or five miles, they gave up
the pursuit, and returned TO Valparaiso. 1t
was alleged on the part of the plaintiff, that
the boat in which he followed the ship. must
have been seen BY her, though the ship was
not hove to, to enable him to come up with
her. After returning to Valparaiso, the plain
tiff and his companion applied to the Ameri-
can Consul, who in few days procured them
a passage to Coquimbo, where they expected
to find the William Tell, and where they ar
rived in Ia or Is days after she left Valparai-
so. On coming to Coquimbo, they ascertain
ed that the ship was at Tongoy, port forty
miles nearer TO Valparaiso. Thither they ac-
cordingly proceeded on foot, and found their
ship lying within half q mile of the Shore
After making several signals to her, to send q
boat ashore for them, and finding that the
ship paid no attention to them, the plaintiff,
who was entirely destitute ofmoncy, gave his
neck k-kerchief to the owner of small boat, to
take him on board. The boat was too small
to contain three persons, and his companion
remained on shore until the boat should re-
turn. When the boat got within about thirty
yards of the ship, the Captain most perempto-
rily ordered the boatman to go back to the
shore. The boatman accordingly turned a.
bout his boat, but the plaintiff leaped into the
water and swan to the ship and got on board.
The Captain, however, would not let him re-
main on board, and ordered three men to take
the boat and set him on shore, which they ac-
cordingly did, and he was thus left in state
Of complete destitution, to make his way home
to the United States, in the best way he
could. He ultimately worked his passage
home in ship bound to Baltimore. Two
days after the ship left Valparaiso, the plain
titf's clothes were sold at auction to the crew,
by the defendants orders, who retained the
price of them, and when the ship arrived at
New York, her cargo of oil was sold, and no
part of the proceeds ever paid to the plaintiff,
payment for his services, during the voyage.
This was the case for the plaintiff.
For the defence, it was alleged that the
plaintiff had no right to go ashore without the
permission Of the Captain PARTICULARLY when
the ship was about to go to sea,-and that his
having done so, dissolved the contract be-
tween himself and the Captain. 1t was also
alleged that the second mate had no author
ity to give him leave to 90 on shore, and it
was urged as being extremely improbable !,
that he did so. There was also some cir
cumstantlal evidence adduced to show, that
the second mate had not given him leave to
60 on shore, but it was impossible to prove it
positively, the second mate being dead. Re-
lative to the Captains having sold the plain
tiff's clothes by auction on board the vessel,it
was shown that the plaintiffs absence had
given the Captain power to do so according
to law. 1t also appeared that when the plain
tiff went on shore at Valparaiso, for the al .
legged purpose of procuring stores, he remain
ed there at least four hours, and went to
place of equivocal character, called "1'hc
Main Top" where seamen are in the habit of
going to carouse, and indulge in disordcrly
practices. Finally, the circumstances under
which the plaintiff left the ship, and the time
lie remained away, without attempting to re-
turn, were urged as an act of fdesertion, W hich
released the Captain from any obligation to |
take him back, when he reached the ship ut
ToHgoy.
The Court charged the Jury TO find for the !
plaintiff, and anmadverted in the scvcrest
terms, on the conduct ofthe Captain, in re-
fusing to let him remain on board, when he
returned to the ship at Tongoy, and setting
him on shore in destitute condition, in a To- \
reign country, and in the midst of winter
June being the winter season in that coun.
try.) The Court also put it to the Jury whe-
ther the case was not one which called for
the most exemplary damages.
Verdict for the plaintff-$1COO damages
and 6 cents cost.
BY the latest accounts which we have re-
ccived from the Washington Rail Road, it ap-