1 Coffin v. Jenkins, 3 Story, 113; Abbott on Shipping, pt. v. ch. 3, p. 576; The Rovena, Ware, 309; Spencer v. Eustis, 21 Me. 519.
§ 196. A desertion must, however, take place during the voyage, and before its termination. The question arises, therefore, when the voyage is to be considered ended. The rule on this point is that the voyage is ended when the ship has arrived at her last port of destination, and is moored in good safety in her proper and accustomed place. And although seamen are ordinarily bound to stay by the ship, and assist in the unloading of the cargo, unless there be some express or implied agreement growing out of usage, to the contrary, yet a non-compliance with this duty will not be a desertion so as to forfeit all the seaman's wages.5
1 Per Mr. Justice Story, Cloutman v. Tunison, 1 Sumner, 376; The Ship Mentor, 4 Mason, 84; 3 Kent, Comm. lect. 96, p. 198, 199.
2 Act of 1790, ch. 56 (29), § 5, commented on in 1 Sumner, 373, and Coffin v. Jenkins, 3 Story, 113. See Roberts v. Knights, 7 Allen, 449.
3 Coffin v. Jenkins, 3 Story, 113; Cloutman v. Tunison, 1 Sumner, 373.
4 Ibid.; Bordman v. The Elizabeth, 1 Peters, Adm. 128; Dixon v. The Cyrus, 2 Peters, Adm. 407; The Mentor, 4 Mason, 84. See also the cases collected in Kinne's Law Compendium, vol. ii. p. 637 (tit. The Law of Ships and Maritime Commerce).
§ 197. If a seaman, in the course of the voyage, or in a foreign port, claim higher wages than those stated in the shipping but the desertion must be in the course of the voyage, and before its termination in the home port, to justify an infliction of the forfeiture by the maritime law. It is not sufficient, that there has been a desertion after the voyage has ended; although it be within the period for which the party is bound to do duty on board the ship. It must be during the voyage. Now, when is the voyage ended, in the sense of the maritime law ? I answer, when the ship has arrived at her last port of destination, and is moored in good safety in the proper and accustomed place. I do not say that the officers or seamen are then discharged from any further duty, and are not bound to attend to the unlivery of the cargo. On the contrary, I maintain, that the seamen, and a fortiori the officers, are bound to remain by the ship, and watch over her concerns, and assist in the unlivery of the cargo, if made in a seasonable time; unless there be some express or implied agreement, or established usage, to dispense with their further services. There is a clause in the common ship articles, pointed to this very duty. ' And whereas' (says the clause) ' it is customary for the officers and seamen, on the vessel's return home in the harbor, and whilst her cargo is delivering, to go on shore each night to sleep, greatly to the prejudice of such vessel and freighters, be it further agreed by the said parties, that neither officer or seaman shall, on any pretence whatever, be entitled to such indulgence; but shall do their duty by day in discharging the cargo, and keep such watch by night as the master shall think proper to order for the preservation of the same.' And this very stipulation is in the present articles, and constitutes a part of the contract. But it is one thing to be responsible for a violation of the terms of the contract; and quite another thing to incur the visitation of the maritime penalty of forfeiture of the whole wages of the voyage. In the present case, it is, in my judgment, quite clear that the voyage was ended, so far as the maritime law is concerned, at the time when the asserted act of desertion took place. The vessel was not only safely moored, but had come to the wharf, and had been duly entered, and part of her cargo had been discharged. However reprehensible the act then was, it was not a desertion during the voyage; and therefore, so far as the forfeiture turns upon the principles of the maritime law, it was not incurred. Nor is there any thing novel in this doctrine. It is manifestly implied in the reasoning of that truly great judge (princeps inter pares), Lord Stowell, in the case of The Pearl (5 Rob. 224), which has been cited at the bar. But it is still more directly announced in the more recent case of The Baltic Merchant (Edwards, 86). In this latter case, which turned upon the very point, whether the voyage was ended by a mere arrival in port, Lord Stowell on that occasion said: 'By interpretation of law, the voyage is not completed by the mere act of arrival. The act of mooring is an act to be done by the crew; and their duty extends to the time of the unlivery of the cargo. There is no period at which the cargo is more exposed to hazard, than when it is in the act of being articles, and induce the master to assent thereto by threats of deserting the vessel, the contract thus made will be utterly void.1 transferred from the ship to the shore; and therefore the law, not only the old law, but particularly the statute by which the West India trade has been in later times regulated' (and the case before him was of a West India ship), 'has enjoined in the strictest manner, that the mariners shall stay by the vessel, until the cargo is actually delivered. I take this to have been always a part of the duty of the mariners; their contract is legally understood to go this length; and there never can have been a time, when the owner was not entitled to some consideration against the mariners, on account of the non-completion of the contract. This is a consideration not in modum poence, but it is a civil compensation for injury received, existing in all reason and justice antecedently to any statute upon the subject.' His Lordship here points out the very distinction between cases of compensation for an imperfect performance of the contract, and cases of forfeiture for desertion, which are strictly in poenam. And he afterwards proceeded to decide, that the voyage in that case could not, upon the true construction of the statutes on the subject of the West India trade, be deemed to be ended (not, until the cargo was unlivered, but) until the vessel was safely moored m the West India docks; and when so moored, he held the voyage complete and ended, so that the forfeiture for desertion would not afterwards attach. But, the desertion being before such mooring, he pronounced for a forfeiture in the case. It seems to me, that this decision is as fully in point as could be desired; and it affirms, what has always appeared to me to be the true import of the maritime law. I am therefore of opinion, that, upon the mere footing of the maritime law, no forfeiture of wages has been incurred; because, in the first place, I am not satisfied, that there was any quitting the ship animo non revertendi, with an intention to desert the service; and, in the next place, because, at the time of the asserted absence, the voyage was ended." See Rebetto v. How, 44 Mo. 52.