
    [Philadelphia,
    January 22, 1825.]
    BUCK and another against LANE.
    IN ERROR.
    An assault by a mariner on the captain of a vessel, is such gross misbehaviour ao will produce a forfeiture of wages, and justify the captain in discharging him, unless followed by humble submission, and such behaviour as affords a strong probability of future good conduct.
    What would be the effect of such submission and behaviour on the captain’s right to discharge the mariner, quiere ?
    
    On a writ of error to the Court of Common Pleas of Philadelphia county, the case was thus:
    
      John Lane, the plaintiff below, brought this action for his wages, as a mariner on board the Brig Milo, of which the defendants, Buck and Krumbhaar, were owners. The plaintiff shipped, as a mariner, on hoard the Milo in Jipril, 1820, on a voyage from Philadelphia to Hamburg, and back to Philadelphia. They arrived at Hamburg on the 35th of May following, when it was agreed to alter the voyage, and proceed to St. Salvador, in Amc-rica, and thence back to Hamburg. The brig arrived at St. Salvador on the 30th of September, where she remained until the 24th of March, 1821, when she sailed for Hamburg, and arrived there on the 1st of August following. At Hamburg the voyage ended, and the brig was sold. It was proved, by the testimony of the mate, that the plaintiff was troublesome and quarrelsome. While the brig was at St. Salvador, on the 23d of October, he demanded his discharge, which the captain refused. He then desisted from his work, until the 26th of October, when he returned to it. In December following, some of the crew were fighting on deck, and, on the captain’s interposing, the plaintiff seized him and threw him down. Not long after this, the captain applied to Mr. Wise, who was acting as Vice Consul of the United Stales at St. Salvador, by whose influence he obtained a guard of soldiers, with whom he came on board the Milo, and took the plaintiff and. another mariner, of the name of Vincent, who had misbehaved, and carried them to prison. After this he hired two hands, in the place of the plaintiff and Vincent. The plaintiff remained in prison till after the brig sailed from St. Salvador, when he was discharged, and returned to the United States, about the time the Milo arrived at Hamburg. It does not appear, that any charge was brought against the plaintiff, while in prison, nor was he brought to any kind of trial. On this evidence, the court charged, that the plaintiff was entitled to his wages to the time of his arrival in the United States, deducting the time when he was in prison, and the counsel of the defendant excepted to the charge.
    
      Chester, for the plaintiffs in error,
    cited, 2 Brown’s Civ. and Mar. Law, 160, 169. Drisdale v. Schooner Rayner, Bee’s Ad. Rep. 148. Thorne v. White, 1 Peters’ Ad. Decisions, 168. Robi-net v. The Exeter, 2 Rob. 216. Relf v. Ship Maria, 1 Peters’ Ad. Decisions, 1S6. Black v. The Louisiana, 2 Id. 270.
    
      Philips, for the defendant in error,
    referred to, Mills v. Kennedy, National Gazette, of July 16, 1824* Thompson V. Bush, C. C. U. S., Penn. District, October, 1823. M. S. Rep.
    
   The opinion of the court was delivered by

TiughmAN, C. ,T.

The charge is excepted to, on this ground,r— that the plaintiff forfeited his wages by his assault on the captain. It is not precisely ascertained by the codes of marine law, for what misbehaviour a mariner shall forfeit his wages. The law on that subject was well considered in the case of Thompson v. Bush, in the Circuit Court of the United States, October term, 1823, a manuscript report of which has been shown to us. That, was a libel for wages, by the mate, who had been dismissed by the captain, at Calcutta, for misbehaviour. Judge Washington, after observing the uncertainty of the law in matters of this kind, proceeds as follows: i( I accede, without hesitation, to the rules laid down by the learned judge of this district, in the case of Atkins v. Burrows, The mate may forfeit his right to command, and his wages, by fraudulent, unfaithful, and illegal practices, by gross and repeated negligence, or flagrant, wilful, and unjustifiable disobedience) by incapacity, brought on him by his own fault, or palpable want of skill in h'is profession. But the causes of removal should be evident, strong, and legally important.” The case of a common sailor, or mariner, is somewhat different from a mate; and therefore there must be a difference in the causes which will justify a dismissal of each. An assault by a mariner on the captain, is gross misbeha-viour, and would certainly justify a discharge, unless followed by humble submission, and such behaviour as afforded a strong probability of future good conduct. Whether, even then, the captain would not be justified in refusing to permit the offender to remain longer in his service, it is unnecessary now to decide. In the present instance there was no submission, and if the captain had discharged the plaintiff, I should have thought him justified; and, in that case, there would have been a forfeiture of wages. But he did not discharge him, — he imprisoned him by means of the vice consul, kept him three months in jail, and left him there when the brig sailed. When the plaintiff applied for his discharge, before his imprisonment, the captain refused him. Now, to leave a citizen of the United States in a Spanish jail, without accusation or trial, is certainly a very serious measure, and not to be resorted to but for cogent reasons. If the plaintiff had been discharged, without imprisonment, he might have got into other service; or, perhaps, if discharged after imprisonment, he might have had a better chance of obtaining his liberation. But to keep him In prison during the captain’s pleasure, to refuse him a discharge, and at the same time insist on a forfeiture of wages, was too much. It is material, that the plaintiff was not imprisoned for the purpose of being bi’ought to trial, but only for. safe custody. And in such cases, it is very common to take the offender back before the ship sails. It does not appear, that there would have been any diificulty in securing him on board the brig, if his misbehaviour had been repeated. But the ground on which the plaintiff’s case rests, is, that in fact he was not discharged, but left by the captain in prison, in a foreign country. Under these circumstances, we are of opinion that he was entitled to his wages, (deducting the time of imprisonment,) until his arrival in the United States, and therefore there was no error in the charge of the Court of Common Pleas.

2. Another error has been assigned, viz. “ The court being requested by the defendant’s counsel, to charge the jury, that, where a mariner was discharged, as really dangerous to the peace and safety of the ship, the captain was justifiable in not receiving him on board, declined to give any charge on this, as they considered it an abstract point, not arising out of the evidence in the case.” The reason given by the court for not answering this question, was sufficient. No court can be called on for an opinion not material to the issue on trial, and no opinion can be material, unleés there is evidence to which it can be applied. It appears to us, on the whole, that there is no error in this record, and therefore the judgment should be affirmed.

Judgment affirmed.  