police justice, where the captain made
a complaint against the mate and the
crew for mutiny and desertion. The
justice informed the captain that he
had no jurisdiction, but he directed a
policeman to take the men into cus-
tody, and they were locked up. The
captain then went before the Prus-
sian consul, and made complaint, re-
questing that the crew be punished,
and that they be kept in custody pre-
liminarily, and stating that he could
not receive the mate on board again.
The consul then issued a requisition,
to a commissioner of the Circuit Court
of the United States, stating that the
men had deserted, and asking for a
warrant to arrest the men, and "if
said charge be true," that they be de-
tained until there should be an oppor-
tunity to send them back.

This
requisition the captain took to the
police justice, who thereupon, without
examination, committed all the men
to the county jail, where they lay for
ten days. On the direction of the
consul, they were then released, and
came to the consul's office, where they
were advised to go to the ship, and
ask the captain for their wages. Some
of them went, and the captain agreed
to meet the crew at the consul's office
next day. He came there, but the
parties failed to meet each other, and
thereafter the seamen executed assign-
ments of their wages to the mate, but
without consideration, and he filed
this libel against the vessel, to recover
the wages of all. The captain was
part owner of the ship. He defended
the suit, and claimed that the men
had forfeited their wages by deser-
tion; that they had agreed in the
articles not to bring the suit; and
that the Court, under the treaty be-
tween the United States and Prussia,
had no jurisdiction.

Held, That, as to the mate and L.,
there could be no pretense of deser-
tion, for they left the vessel with the
captain's consent;

That, as the other seamen only left
the ship, without taking their clothes,
to go and see the consul, the charge
of desertion was not made out against
them;

That the conduct of the captain, in
imprisoning the men, was unlawful,
and sufficient to dissolve the contract
of the mariners;

BT. VOL. IV.-39

That no law permits the imprison-
ment of deserters in our jails, except
on proof of the facts before a compe-
tent tribunal;

That the men were not prevented
from bringing this suit by the clause
in the articles referring to that pro-
vision of the German mercantile law,
that "the seaman is not allowed to
sue the master in a foreign port," be-
cause this is not a suit against the
master, and the master having, by his
unlawful conduct, absolved the men
from their agreement, had absolved
them from this portion of it with the
rest;

That the clause in the treaty be-
tween the United States and Prussia,
that the consuls, vice consuls, and
commercial agents shall have the
right, as such, to act as judges and
arbitrators, in such differences as may
arise between the captains and crews
of the vessels belonging to the nation
whose interests are committed to
their charge, without the interference
of the local authorities, unless, &c.,
&c.," was not sufficient to oust this
Court of its jurisdiction over this con-
troversy.

Whether this clause has any appli-
cation to suits in rem-quære.

That the Prussian consul had not
acted in this matter as judge or arbi-
trator, which words must be taken in
their ordinary sense, implying inves-
tigation of facts upon evidence, the
exercise of judgment as to their effect,
and a determination thereon;

That the consul is not a Court, and
neither his record nor his testimony
is conclusive on this Court;

That, as the consul, though really
appointed as consul of the North
German Union, was recognized by the
Executive Department as consul of
Prussia by virtue of such appoint-
ment, the action of the Executive
was binding on the Court, and he
must be held to be the Prussian con-
sul;

That the seamen might file a peti-
tion to be now made co-libellants, and
on such petition being filed, and the
cancellation of their assignments to
the mate, they would be entitled to
decrees for their wages.

In admiralty, minors are allowed
to sue for wages in their own names.
The Elwin Kreplin,
413

SMUGGLING.

1. The bark John Griffin was libelled
as forfeited for a violation of the 50th
section of the Act of March 2d, 1799,
for smuggling cigars. One Albreu,
who owned the cigars, testified that
the captain of the bark, in Havana,
had made an agreement to smuggle
the cigars for him; that he sent the
cigars from Havana to Matanzas,
where the bark was lying, and re-
ceived a letter from the captain say-
ing they were shipped; that he then
came to New York, and after the
arrival of the bark in New York, re-
ceived his cigars, which were brought
him by a carman, and paid the cap-
tain the agreed freight. It also ap-
peared in evidence that on the seizure
of the cigars Albreu's papers were
also seized, among which were the
invoices of the cigars from Havana to
Matanzas, and the letter from the
captain. The captain denied that the
cigars ever were on board the vessel,
and otherwise contradicted Albreu,
but gave no satisfactory explanation
of the letter. Some other testimony
was given confirming some parts of
Albreu's story. His character for
truth was seriously impeached.

Held, that the evidence sufficiently
sustained the charge against the ves-
sel, and that she must be forfeited.

The Government assumes no obli-
gations towards ship owners to pre-
vent fraudulent discharges of cargo,
and the liability of the vessel is the
same whether the officers of the cus-
toms do or do not prevent such dis-
charges. The John Griffin,

19

2. An information was filed against the
steamship Queen and her master, al-
leging that the vessel belonged, in
whole or in part, to a citizen or citi-
zens of the United States, and charg
ing that certain merchandise, not in-
cluded in the manifest on board, had
been imported by her into the United
States, contrary to section 24 of the
Act of March 2, 1799, which, for such
offence, imposes upon the master a
forfeiture equal to the value of the
goods not included in the manifest,
and that, by section 8 of the Act of
July 18, 1866, the vessel is holden for
the payment of the penalty against
the master, and becomes liable to be

seized and proceeded against, by
libel. to recover the same. The
answer of the owners of the vessel
denied the allegations of the infor-
mation, and especially that they were
citizens of or residents in the United
States, and excepted to the informa-
tion as alleging no cause of action
against the vessel, inasmuch as it did
not show that the master or owners
of the vessel had been convicted of
the acts complained of. The answer
of the master also denied the state-
ments of the information and excepted
to it, in that it did not set forth a joint
cause of action against the vessel and
the master, and in that parties were
improperly joined, and in that the
parties joined were entitled to differ-
ent modes of trial, and in that this
action could not be sustained against
the vessel and the master jointly.
The suit, as to both vessel and mas-
ter, was tried before the Court with-
out a jury, as a civil cause of Admi-
ralty and maritime jurisdiction:

Held, That it was clearly proved
that the violation of the law set forth
in the information was committed.

That the vessel was a British ves-
sel, and that, as, under the law, it is
immaterial whether the offending
vessel is a vessel of the United States
or a foreign vessel, the information
might be amended without terms, in
respect to the ownership of the vessel,
and by averring a violation of sec-
tion 25 of the act of 1866, which ex-
tends the provision of the Act of 1799
to vessels owned, in whole or in part,
by foreigners.

That the Court had jurisdiction to
enforce the penalty against the vessel,
in such a proceeding as this, without -
a trial by jury.

That the vessel might be proceeded
against for the penalty, irrespective
of any proceeding against the master.

That the suit to recover the penalty
against the master was a suit at com-
mon law, and he was entitled to a trial
by jury, under the seventh Amend-
ment of the Constitution of the United
States.

That the right to recover against
the vessel in the present form of pro-
ceeding was clear, and, as the answer
of the master excepted to the informa-
tion on the ground that the suit could
not be maintained against the vessel

Where the owners of a vessel permitted
one K. to act as master of the vessel
while she was getting ready for sea,
the understanding being that he
should command her as master if he
should purchase an interest in her,
and one of the owners made oath at
the custom house that K. was the
owner, and K. cleared her at the
custom house as master, but, fail-
ing to purchase an interest, was dis-
placed as master:

Held, That the owners could not
now be permitted to say that K. had
not the ordinary power of a master to
order stores for the voyage.

That they were liable for stores,
ordered by him, which were proper
for the voyage and were used on the
vessel. Stringham v. Schloener,

T

TOWBOAT AND TOW.

16

1. Where a tug was employed to take a
schooner out of a slip from alongside
another vessel, and the men on the
schooner gave no directions as to the
mode or time of taking her out, and
in taking her out, her stay caught the
yard-arm of the other vessel, and her
topmast was carried away:

Held, That the tug was bound to
adopt a method of taking the schooner
out without injury.

That the method selected was man-
ifestly hazardous, and the tug was
liable for the damages occasioned by
her want of success. The M. M.
Caleb,

15

2. A steamboat agreed to tow certain
canal boats from New Brunswick to
New York, by way of the Raritan

3.

river and the Kills. On reaching the
mouth of the river, inside of which
there was good anchorage and a safe
harbor, there was found outside a
high wind and a heavy sea. The
steamer, however, went out, and, not
being able to cross the flats, the tide
being ebb, took a circuitous route by
the channel, going by South Amboy
and down around the buoy at tail of
the flats, and so around to Perth Am-
boy. While making this passage, two
of the canal boats were sunk by the
violence of the sea and the dashing of
the boats against each other:

Held, That it showed a want of or-
dinary care for the steamboat to ven-
ture out with such a tow when she
did;

That, the violence of the sea fur-
nishing an adequate cause for the
disaster, and the steamboat being in
fault for placing the boats in such cir-
cumstances, she must be held to strict
proof of any negligent act on the part
of the boats, which she claimed to
have been contributory. The Blanche

Page,

186

Where a steamtug was employed to
tow out a ship, which was lying stern
out at Pier 37 East River, and, hav-
ing attached a hawser to her stern,
towed her out stern foremost into
the river, and then cast off the hawser
and attempted to come alongside and
take another hawser from the ship's
starboard bow, and the hands on
board the ship failed to promptly
catch the heaving-lines, and before the
hawser could be properly attached,
the ship drifted stern foremost against
a pier on the opposite side of the
river, and received injury:

occa-

Held, That the injury was
sioned by negligence on the part of
the tug, in towing the ship so far out
into the river, before casting off the
hawser. It should have been cast off
as soon as the ship had fairly cleared
the New York piers.

That the tug was liable for the
damages. The M. A. Lennox,

190

4. A tow-boat took several vessels in
tow to tow them through Hell Gate
from New York. The tide was flood,
and the weather fair. After passing
through the Gate, one of the vessels
struck some obstruction under water,

causing her to leak, and making it
necessary to run her ashore. Her
owner filed a libel against the tug,
claiming that the tug had taken in
tow more vessels than she could man-
age, and that the vessel was allowed
to be carried by the tide out of the
channel, and to strike a rock on the
shore. The tug claimed, on the other
hand, that the vessel struck a sunken
wreck in the channel:

Held, That, on the evidence, the tug
had taken in tow more vessels than
she had power to manage.

That, therefore, the burden was
upon her to prove that the object
which the vessel struck was one the
presence of which the tug was not
bound to have known.

That she had failed to show this,
and was, therefore, liable for the dam-
ages. The George Farrell,

316

of the master of the tug, whereby the
tug had not full control of the barge;
that another tug, passing close by the
tow, raised a swell, which, with the
tide, gave the barge a sheer towards
the dock, which the tug was not able
to check, owing to the slackening of
the bow line; and that the collision
was caused by inevitable accident:

Held, that, as the tug had acquiesced
in the slackening of the bow line, she
became responsible for whatever con-
sequences resulted from that arrange-
ment.

That the tide was known and ought
to have been calculated for, and the
effect of the passing of the other tug
ought to have been guarded against.

That the circumstances, therefore,
did not make out a case of inevitable
accident. The Olive Baker, 173

See COLLISION, 7, 10, 13.
PLEADING, 2.

TREATY.

See SEAMAN'S WAGES.

U

UNITED STATES TREASURY.

The defendants, having presented at
the sub-treasury of the United States
certain seven-thirty notes of the
United States, to be retired under the
provisions of the Act of April 12th,
1866 (14 U. S. Stat. at Large, 31),
and having received the money there-
for, it was afterwards claimed by the
Government that eighteen of them
were counterfeits, and an action of
assumpsit was brought by the United
States against the defendants, to re-
cover the moneys paid for such al-
leged counterfeits.

Held, That, in order to entitle the
United States to recover, it was neces-
sary for them to prove that the
eighteen notes were delivered to the
United States by the defendants, that
the United States paid their money
for them, and that they were
issued by the United States under
any Act of Congress.

not