1 Harris v. Carter, 3 El. & B. 559; 25 Eng. Law,& Eq. 221; Bartlett v. Wyman, 14 Johns. 261. In this case, the court referring to the act of Congress, 20th of July, 1790, said: "This statute requires, under a penalty, every master of a ship, or vessel, bound from a port in the United States, to any foreign port, before he proceeds on the voyage, to make an agreement in writing, or print, with every seaman, or mariner, on board, with the exception of apprentices, or servants, declaring the voyage, and term of time for which the seaman, or mariner, shall be shipped. In the present case this was done, and the rate of wages fixed at seventeen dollars per month, for the whole voyage. To allow the seamen, at an intermediate port, to exact higher wages, under the threat of deserting the ship, and to sanction this exaction by holding the contract, thus extorted, binding on the .master of the ship, would be not only against the plain intention of the statute, but would be holding out encouragement to a violation of duty, as well as of contract.
§ 198. But, ordinarily, in cases of breach of duty, a total forfeiture of wages will not be decreed, unless the misconduct be of an aggravated nature. Thus, neglect of duty, or disobedience, or drunkenness, unless it be habitual and excessive,1 will not ordinarily work a total forfeiture of wages. So, also, embezzlement is generally only a subject for contribution to the extent of the loss.2 In ordinary cases, the breach of duty must be habitual, and of such a nature as to endanger the safety of the vessel, or to incapacitate the mariner from the proper performance of his duty, and a single act will not be sufficient to work a total forfeiture.3
§ 199. Again, misconduct generally only works a forfeiture of wages already earned, and if the seaman repent, and do his duty faithfully afterwards, he is entitled to wages therefor. Thus, in case of a revolt, although the wages antecedently earned are thereby forfeited, yet if the seamen perform their duty faithfully afterwards, they are entitled to wages accruing after the revolt.4 Again, the master may pardon any offence, and if he do, no forfeiture attaches, and generally, if the seaman be received again, or retained on board in the ordinary performance of his duty, a presumption of pardon is thereby created,6 - but only a presumption.6 So, also, where the misconduct is not aggravated, and punishment is inflicted therefor at the time, wages will not be forfeited.7
The statute protects the mariner, and guards his rights in all essential points; and to put the master at the mercy of the crew, takes away all reciprocity."
1 Robinett v. The Ship Exeter, 2 Rob. Adm. 261; Abbott on Shipping, pt. iv. ch. 2, p. 584; Orne v. Townsend, 4 Mason, 541; The Mentor, 4 Mason, 84; The Lady Campbell, 2 Hagg. Adm. 5.
2 Spurr v. Pearson, 1 Mason, 104; Mariners v. The Kensington, 1 Peters, Adm. 239.
3 Ibid.; The Ship Mentor, 4 Mason, 93.
4 The Ship Mentor, 4 Mason, 95; Dixon v. The Cyrus, 2 Peters, Adm. 412; Coffin v. Jenkins, 3 Story, 119.
5 Cloutman v. Tunison, 1 Sumner, 373; The Test, 3 Hagg. Adm. 307, 315; Thorne v. White, 1 Peters, Adm. 168; Dixon v. The Cyrus, 2 Peters, Adm. 412.
6 The Ship Mentor, 4 Mason, 95.
7 The Ealing Grove, 2 Hagg. Adm. 15; Bray v. The Atalanta, Bee, 48; Luscomb v. Prince, 12 Mass. 576.