Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1854-02-11
CHE polpnesian.

SUPREME COURT-IN ADMIRALTY.
Decision Of Chief Justice Lee.
January "a, 1854.
In the matter of the claim of B. F. Angel, ESQ
U. S. Consul at Honolulu, for three months wages
of seamen discharged from the ship Nile"
The American ship Smile" of San Francisco, en-
tered the port of Honolulu in October last, and
was attached at the suit of Thomas Spencer for
supplies furnished by him to the bark "Walter
Claxton" on the faith and credit of her owners,
| Messrs. Bailey & Gilbert of San Francisco, who,
it was said, were also the owners of the "Nile.''
Upon the seizure of the "Nile" under the attach
ment, Mr.. Angel discharged all of her crew, ex-
| cept one or two who were not willing to be dis
charged, all of whom he claims are American cti.
zens, with the exception of four Portuguese, and
as such, entitled to the benefit of the Act of the
United States, passed February %, 1903, for the
protection of American seamen, and which re-
quires the captain of every American vessel when
any seaman mariner, being a citizen Of the
United States is discharged in foreign country
to pay to the Consul of the port where he is dis
charged, three months paw over and above the
wages which may then be due to such mariner or
seaman.
This claim is resisted by the counsel of Spen-
Ger, on the ground that it has not been legally
shown that the seamen discharged are american
citizens and consequently they are not entitled
10 the advance wages.
|. 0Che U. S. Act Of 1903, under which this claim
is made, provides, " that before clearance I" be
granted to any vessel bound on a foreign voyage,
the master thereof shall deliver the collector of
the customs, list, containing the names, places
of birth and residence, and a description of the
persons who compose his ships company, to which
list the oath affirmation of the captain shall be
annexed, that the said list contains the names of
his crew, together with the places of their birth
and residence, as far he ascertain them,
and the said collector shall deliver him certified
copy thereof"
Section 3, of the same act further provides.
= That whenever ship belonging to a citizen of
the United States, shall be sold in foreign
country, and her company discharged, or when
seaman or mariner, citizen of the United
States, shall, with his own consent, be dischar-
ged in foreign country, it shall be the duty of
the master or commander to produce to the con-
sui, vice-consul commercial agent, or vice-com-
mercial agent, the list of his ships company, GER
titled as aforesaid; and to pay to such consul,
commercial agent or vice-commercial agent, for
every seaman or mariner SO discharged, being
designated on such list o citizen Of the UNI
ted STATES, three months pay, over and above the
wages which may then be due TO such mariner
or seaman" &c.
The only question in this matter is, whether the
american citizenship of the seamen discharged
IS sufficiently proved; for, if it is, then 1t is ad
mitted that the three months extra wages should
be paid, and if not, that the claim should be refu
sed.
The facts are, that, at the time of the discharge
of the seamen, no crew list was produced by the
captain as required by statute, and it is said that
the Captain never had one. Therefore, it is con-
tended that the section of the act requiring the
payment of three months extra wages has not been
complied with, and the claim cught not to be up
held, inasmuch, as the statute only requires such
wages to be paid So for every seaman or mariner so
discharged, being designated on such last as q
citizen of the United States" Now it is clear,
says the contestant that these discharged seamen
never were so designated on the crew list, for
none was produced by the captain; and their
american citizenship cannot be proved by any
other evidence than the list ITSELF l am fully
of the danger of lat!tudinarlan construction
of the statute in cases like this, but in avoiding
one extreme we must no, rush to the other, lest by
a too narrow construction we do violence to the
spirit of the law and the plain intention of the law
makers. Would it be reasonable or Just to decide
that because the captain has no crew list, or hav-
i'm one fails to produce it, the advance wages are
not to be paid to the consul for men discharged by
him Would it not, on the contrary be doing VI
oence to the plain intention OF Congress and the
spirit of the law? think it would. Such doc
trine would place it in the power of every master
of a ship desrous of avoiding the payment of the
three months extra wages, to take advantage of his
own fault and set the law and consul at defiance.
Where the captain of an American vessel fails to
comply with the law, and produces no crew list,
think 1t is fair to presume that the seamen dischar-
ged from his Ship citizens of the country under
whose flag they sail and that the burden OF proof
rests on the captain to show that they are not
II L. Is
own laches to defeat the claim. If he has no crew
list, and can satisfy the consul by other evidence
that the seamen discharged are not citizens OF the
United States, very well, but if he neglect or fail
to do that see no fair way of escape from the
requirements of the law.
If our reasoning on this subject be sound, then
we are driven to the inevitable conclusion that the
claim is a legal one. The U. S. Consul, MIR. An
GEL testi6es that he was satisfied, by the produc-
ton of the seamen's projections, and by inquiry OF
the men, that they were all American citizens,
with the exception of four Portuguese, and it was
on this ground that he received those of them who
were sick into the hospital. 1t is clear to me, that
for each of the seamen discharged into the hospi-
tai the three months extra pay should be paid but
in relation to those who were discharged well,-l
who have been no charge on the hospital, and who,
it is admitted, have nearly if not quite all shipped
in other vessels and left the country am not so
clear. do not hesitate 10 pronounce my oPihion
that the demand of the U. S. Consul for the three
months advance for each of the well seamen is a
legal one, but court of admiralty is to the extent
of its jurisdiction, court of equity. and, under all
the circumstances of the case, which are somewhat
peculiar, IT seems to me equitable that the claim
for the advance wages of those who have shipped
in other vessels and departed from the country
ought to be disalowed. They have been, of mol
charge to the government, and are not likely to De
so. Such ruling, humbly conceive, is IN ac-
cordance with the spirit of the U. s. Act of lS4O
which empowers the consul to discharge seamen,
if he thinks it expedient, without requiring the
payment of three months wages, under the pro.
visions of the Act of 1903, or any other sum OF