
    PRAY'S CASE
    John S. Pray et al. v. The United States.
    
      On the Proofs.
    
    
      Certain seamen ship in a merchant vessel at San Francisco for a voyage to Liverpool anil other foreign ports and tack to a final port of discharge in the United States, with this provision : “that it is farther agreed that the undersigned are¡to be clisoliarged in Liverpool if mutually consented to between the master and seamen.” In Liverpool the seamen are clisoliarged by mutual consent ; but the consul there requires the master to pay him one month’s wages for each seaman. The master pays tinder protest. The seamen waive the two months’ wages secured by statute to a seaman discharged in a foreign port with his own consent. The oioners bring their suit to recover bach the wages exacted by the consul.
    
    
      I. The Act February 2G, 1803, (2 Stat. L., x>. 203, § 3,) requires, when aseaman is discharged, with his own consent, during the voyage, in a foreign country, that the master shall pay to the consul three months’ wages, two of which are to he paid to the seaman and one to he retained for the fund for the relief of destitute seamen in foreign ports. A shipment for a voyage from the United States and return, with a provision that the seamen may he discharged in a foreign port by mutual consent of themselves and the master, does not take the case out of the statute. The Xirovision is nothing more than a discharge “with his own consent’’ and the consul at the port is hound to exact the one month’s wages for the Government, though he may allow the seamen to. waive the two months’ wages to which they are entitled.
    II. "Where the certified list of a crew does not designate the nationality of the crew, it is to ho taken, as against the owners, that the crew are American citizens, even though it appears that some are of foreign na-. tivity; for the omission was the fanit of the master, and he was the agent of the owner?, and his official defaults wore theirs.
    
      The Reporters’ statement of tlie case:
    The petitioners, citizens of the United States, were owners of the ship Semiramis, E. A. Gerrish, master, on and before September 23,1S72, in the port of San Francisco.
    On the 23d of September, 1873, by duly-executed shipping-papers, by J. D. Stevenson, shipping commissioner at San Francisco, in the State of California, there were shipped, among others, the following-named seamen, as part of the crew of said ship, viz : Charles Riley, C. L. Dyer, William Norris, William Ingram, H. Quinn, J. Hanson, F. Jacobsen, Michael Gall, W. Mouncey, Ed. Davy, W. J. Oott, James White, John Wilson, Henry Jones, D. Driscoll, Robert Williams, John Williams, A. Donnelly, for a voyage from San Francisco to the port of Liverpool, thence to one or more foreign ports, apd back to a final port of discharge in the United States; term not to exceed twenty-four calendar months; wages payable in United States paper currency, or its equivalent, and all moneys advanced to be charged for at the current rate of exchange at the time of advancing.
    
      It was agreed, among other things, by said shipping-paper, that said seamen might be discharged at Liverpool, if mutually consented to between the said master of the Semiramis and said seamen.
    The Semiramis arrived from San Francisco at Liverpool on the 8th day of March, 1873, and there, between the dates of March 13 and April 21, the seamen were discharged from said ship by the mutual consent of said master and said seamen.
    Lucius A. Fairchild, United States consul at Liverpool, required the master of the Semiramis to pay to him one month’s wages for each of said seamen, amounting to the sum of $550 in gold, in consequence and because of the discharge of said seamen in Liverpool.
    The master of the Semiramis paid said sum, but under protest that the same was not due, because the shipping-articles provided that the seamen were to be discharged in Liverpool, if mutually agreed upon between said master and the seamen discharged, and that thereby said seamen were entitled to their discharge without the payment of a month’s wages to the United States.
    Bach of said seamen waived the payment to him of two months’ wages, in consequence of his discharge, by a mutual agreement between him and said master, and the payments so waived were not made.
    The $550 in gold, received as aforesaid by said consul, were paid into the Treasury of the United States.
    The said master of the ship Semiramis, on the 7th September, 1872, filed in the collector’s office at San Francisco the' following crew-list of the Semiramis for said voyage:
    
      
    
    
      u I, B. A. Gerrish, master of the said ship Semiramis, do solemnly, sincerely, and truly swear that the within list contains the names of all the crew of the said ship Semiramis, together with the places of their birth and residence, as far as I can ascertain the same.
    “E. A. GEEEISH.
    “Port or San Francisco.
    “ Sworn and subscribed this 27th day of September, 1872, before me.
    “E. BUEKE,
    “ Deputy Collector.”
    
      Mr. Franlc W. Saclcett for claimants:
    The action of a consul in discharging seamen in foreign ports is not conclusive upon United States courts. [Campbell v. Steamer Unele Sam, 1 McAll., 77.)
    The shipping-articles conformed to the stringent requirements of the new shipping-act. The clause providing for a discharge at Liverpool was inserted in order to divest a discharge at that port of any character of surprise or undue advantage on the part of the master. Laws of Congress regulating the discharge of seamen in foreign ports “are intended to secure to mariners whose contract is unexpectedly terminated a fixed compensation, in whatever part of the world they may be, as an indemnity for their disappointment.’7 (Per Lowell, J., Boyers v. Lewis, Low., 297.)
    This $550 in gold was exacted as a fine or penalty. The acts of Congress requiring the payments of extra wages are in the nature of penal statutes. (Ogden v. Orr, 12 Johns., 133.) The term “extra wages” is employed, not that the money has been earned as wages by the sailor under the contract of shipment, but because the rate of his wages affords a convenient means of computing the amount to be forfeited. Penal statutes are to be construed strictly, especially such as have been made for the advancement of trade and commerce, and to regulate the conduct of merchants. Their language ought to be perfectly clear and intelligible to persons of that description; and, when clauses are obscure, judges will lean against forfeiture. (Potter’s Dwarris on Stat., 245, note;' Subbard v. Johnson, 3 Taunt., 177.)
    Section 3 of the Act February 28, 1803, (2 Stat. L., 203,) provides for two events in a foreign port, viz, the sale of a ship and the consequent discharge of her company; the discharge, with his own consent, of a seaman who is a citizen of the United States. ■ The law does not say the consul shall discharge the mariner, but alludes to him as already discharged. By section 1 of the act, however, the written consent of the consul is made necessary to warrant the master in discharging a man without incurring the penalty of his bond to produce such person on his return to the United States. This third section was not intended to apply to voyages which have been terminated in accordance with the contract of shipment. A seaman who consents, at San Francisco, to a voyage from that, port to Liverpool, and signifies such consent by subscribing the. articles, is no more “ with his own consent” discharged at Liverpool than a tenant, upon the expiration of his lease, quits the premises “ with his own consent.” The expression used in this section, fairly interpreted, means a “consent” to an unexpected discharge.
    It has never been decided that the payment of extra wages is applicable to cases where seamen are discharged at the termination of the voyage agreed upon. Sed quiere. (The Herman, Low., 515.) Judge Benedict’s views in Dustin v. Murray (5 Benedict, 10) are entitled to great respect, though the case went off on another point. These were suits brought by the seamen themselves for their share of the extra wages. Courts of admiralty go to extreme lengths in their determination to afford sailors equitable relief. United States v. Parsons, (Low., 109,) where the question arose whether, upon the bond required by section 1 of the act of 1803, (3 Stat. L., 203,) a master was liable for returning to the United States, having left behind, certain foreign sailors whom he had shipped at their own home, where there was no United States consul, and whom, after an intermediate voyage, he had there discharged. Judge Lowell, notwithstanding the sweeping language of the act, expressed himself satisfied that the free consent of the men to a discharge abroad absolved the master from the obligation of the bond as well as excused him from paying extra wages. “The act of 1803,” said the court, “is silent concerning seamen who by their contract are liable to be discharged in a foreign country.”
    ■ It may be objected that Liverpool was not agreed upon, at San Francisco, as the terminus of the voyage; that inasmuch ás the crew bad a right to refuse to be discharged at Liverpool, their consent to such a discharge after arrival comes within the meaning of the act.
    But it is immaterial at what point of time the mutual consent •of master and men comes into play to terminate the voyage, so long as it be terminated within the provisions of the original ■contract of shipment; or, in other words, so long as it be a termination which that contract may be said to have contemplated. It is only necessary that the contract be ended in accordance with the articles. The master and men, under the articles, might have fixed the voyage as simply to Liverpool, even before weighing anchor at San Francisco. That mutual consent, though brought into operation when the ship lay in the Mersey, went back in its effect to the time of shipment, converting the voyage, thereby fixed and concluded, into a voyage from San Francisco to Liverpool as a port of discharge.
    The only other statute under which it can be sought to sustain the legality of this exaction is the Act August 18, 1856, the •twenty-sixth section of which is as follows: ■
    “Upon the application of any seaman or mariner for a discharge, if it shall appear to the consular officer that he is entitled to his discharge under any act of Congress, or according to the general principles or usages of maritime law as recognized in the United States, he shall discharge such seaman or mariner, and shall require from the master or commander of the ship or vessel from which such discharge shall be made the payment of three months7 wages, as provided by the act hereinbefore mentioned, approved February 20, 1803.77
    1. The crew of the Semiramis did.not make application to the consul for a discharge. The contract had expired before they came into the presence of the consul. The voyage was ended in accordance with the articles; their captain had a right to discharge them; and the consul had no right to withhold his consent. The law respecting contracts that have expired has not been changed by this enactment.
    2. The right of the crew of the Semiramis to a discharge was not conferred by any act of Congress, nor was it a right to which they had become entitled “according to the general principles or usages of maritime law as recognized in the United States.77 These words have an established and technical signification. They are designed to provide for such events as capture, tempest, &c. They are not applicable to a voyage which, has expired according to the terms of shipment; nor do they apply to the case where, the voyage having expired, the seaman is refused his discharge. This is manifest from the fact that the act goes on to allude to the extra wages required to be paid by the ninth clause of the Act July 20, 1840, and directs how the money shall be applied, distinguishing the payment in its collection from that required by this section. A •discharge on complaint of the seaman that the voyage is continued contrary to his agreement, or that he has fulfilled his contract, is still granted under the ninth clause of the Act July 20, 1840.
    The act of 1856 provides that “no such payment, nor any part thereof, shall be remitted in any case, except such as are mentioned in the proviso of the ninth clause of the act [of July 20,1840.]” One of the two cases there mentioned is that where the consul “ shall be satisfied the contract has expired.” “ May ” in the proviso should be construed “must.” This case falls within the well-established rule that language permissive in form is in fact peremptory whenever the public interests or individual rights call for its exercise. (.Supervisors v. United States, 4 Wall., 435.)
    The consul, however, relying on the precedents of the office, overlooked entirely the discretionary power placed in his hands for the benefit of just such cases as this at bar. ’
    Claimants had a right to the exercise of the consul’s discretion.
    By section 1, act of 1803, the master is required to deliver to the collector, &e., “a list containing the names, place of birth and residence, and a description of the persons who compose his ship’s company; to which list the oath or affirmation of the captain shall be annexed that the said list contained the names of his crew, together with the places of their birth and residence, as far as he can ascertain them.” The crew-list of the Semiramis was in due form. Not one of the crew was designated on that list as a citizen of the United States.
    The acts of 1840 and 1856 preserve this feature of the act of 1803, restricting to citizens of the United States the benefits of the payment; otherwise, the expressions “ as provided in the Act February 28,1803,” (act of 1840, § 9,) and “ as provided by the act hereinbefore mentioned, approved February 28,1803,” (act of 1856, § 26,) are meaningless. “Any mariner” may receive a discharge under the act of 1840 or the act of 1856, but only “citizens of the Upited States,” so designated on the crew list, can found a claim for extra wages. The language of legislation providing for destitute American seamen is purposely less restrictive, § 4. (Matthews v. Offley, 3 Sumn., p. 116.)
    
      Mr. J.K. McOammon(vtith whom was the Assistant Attorney-General) for the defendants: ,
    The action of the consul at Liverpool was warranted and demanded by the Act February 28, 1803, § 3, (2 Stat. L., 203;) the Act July 20,1840, ninth clause, (6 Stat. L., 394;) the A ct August 18,1856, § 26, (11 Stat. L., 62, 63;) and the Act June 7,. 1872, § 12, table D, (17 Stat. L., 262.)
    The act first mentioned provides that when a seaman, a citizen of the United States, shall be discharged with his own consent, it shall be the duty of the master to pay to the consul at the point of discharge three months’ pay over and above the wages which may then be due to such seaman, two-thirds-to go to the seaman and the remaining one-third to be retained to pay the passages of seamen to the United States, or for the maintenance of such seamen who may be destitute in such foreign port. By the act of 1840, fifth clause, consuls were authorized,.upon the application of both the master and mariner, to discharge such mariner, if he (the consul) deemed it expedient, without exacting the three months’ extra wages. This provision, together with the sixth and seventh clauses of the same act, was repealed by the thirty-third section of the Act August 18, 1856, and therefore, as the law now stands, the consul possessed no discretionary power in the matter. The act of 1S56 confirms the power of the consul in the matter of discharges, and prevents him from remitting the three months’ wages except in certain cases, of which the present is not one. It is now to be considered what effect the stipulation in the articles in reference to the discharge of seamen at Liverpool or other foreign port has upon the statutory laws upon the same subject. If it was the intention of the master to discharge the seamen without pay; and the shipping-commissioner at San Francisco exceeded his authority in permitting the insertion of a stipulation in contravention of the acts of Congress above referred to and the form of articles of agreement set forth in the Act June 7, 1872, (17 Sfcati L., 262,) it was plainly contrary to both the spirit and intent of the laws' regulating the shipment of seamen. In the form given in the act it is provided that “ any other stipulations may be inserted to which the parties agree, and which are not contrary to law.” The stipulation to discharge seamen at Liverpool or other foreign port, although with the consent of the master and seamen, is contrary to law, i. e., the acts cited, if the intention was to escape the payment of the three months’ extra wages to such discharged seamen, and thus evade and make of no effect the statutory provisions bearing on the subject. The acts were passed in the interest of the seamen employed in the merchant-marine of the United States, and in order -more especially that the Government of the United States should not be at the expense of supporting and returning to the United States those employed in the merchant-marine of that country. (1 Opins. Attys. Gen., 14S, 593; 2 id., 256, 468; 7 id., 349.) The amount sued for is the one-third which the United States had the right to and did retain for the purposes named. If • the seamen discharged were foreigners, the case bears no more favorable aspect for the claimants, as, since the Act June 28,1864, (13. Stat. L., 201,) all seamen shipped on board American merchant-vessels at American ports are deemed and taken to be American seamen. Before the passage of this act, however, in 1837, foreigners shipped on such vessels were held to be “ mariners and seamen of the United States within the language and policy of the act of February 28, 1803.” {Matthews v. Offley, 3 Sumn., 115.) Stress has been laid upon the words of the proviso to section 9 of the act of 1840: “ If the consul shall be satisfied the contract has expired, * * * then he may, if he deems it just, discharge the mariner without exacting the three months’ additional pay.” The mariners may waive their, two months’ wages on the expiration of the contract or at any other time, but the consul still must exact the one month’s wages if he thinks proper to do so. The option to discharge or not still remained with the consul. But this is not a case of expiration of contract, so far as concerns the United States. The contract in these cases was for a round voyage from San Francisco to Liverpool or other port and back again, and such a provision as was inserted therein for. a discharge, both parties consenting, was an attempted evasion of the rights of the United States. The mariners might be discharged one day and ship again the next, and, under the claimants7 theory, that would be legal and proper, and the United States could not prevent it. What is the contract in the cases before us but the articles of shipment ? If those articles contain provisions contrary to the spirit and intent of the laws, they are illegal and void, and cannot be enforced. The argument of the claimants would lead to the conclusion that any contract, whether made in conformity to law or not, would be binding upon the United States. The argument is that the contract of shipment has expired as to those sailors who have consented to a discharge at Liverpool; but if this agreement or contract is contrary to law, how can the United States be bound ?
    Another argument can be made that, although the articles of shipment provide that the mariners are to be discharged at Liverpool, if mutually consented to between them and the master, the language does not import that they are to be discharged contrary to law; that is, without three months’pay. How easy it would be to draw up articles of shipment to circumvent the exaction of the just dues of the United States, if the views of the claimants in these suits were adopted by the court.
   LorinGt, J.,

delivered the opinion of the court:

Under the third section of the Act February 26, ISOS', (2 Stat. L., 203,) if a seaman is discharged with his o,wn consent in a foreign country, the master is required to pay to the consul three months’ extra wages; of which two months’ wages are to be paid to the discharged seaman on his engagement on board of any vessel to return to this country, and the other month’s wages are to be retained toward creating a fund for the payment of passages of seamen from abroad to this-country and for the relief of destitute seamen in foreign ports.

The language of the section cited -would seem to confine its provisions to American seamen, and that may have been its purpose; but subsequent legislation provided for the employment of foreign seamen in our vessels, and our courts have long held that seamen of foreign birth, sailing in our vessels, were within the provisions of the section referred to. That section requires that, when seamen are discharged in a foreign port, the captain shall produce his certified list of his crew to the consul, and three months’ wages shall be paid on the discharge of such seaman designated on the list as an American seaman. And it was contended by the learned counsel for the petitioner that as the seamen discharged in this case were not so designated in the captain’s list, the requirement of the three months’ extra wages was illegal. But the omission of any such designation was the fault of the master, and in him a non-compliance with the law; and he was the agent of the owners, who are petitioners here, and his acts and defaults in his official capacity were-theirs, and they cannot take advantage of his failure to comply Avith the statute; and it is manifest that if such a defense Avere admissible, the masters of vessels might always omit such designation, and thus evade the statute and defeat its purposes.

Then the shipping-articles contained a provision in these-words: u It is further agreed that the undersigned are to be discharged in Liverpool, if mutually consented to between the master and seamen.”

It has always been held that the words “ foreign country”' in the section cited referred to a port or place abroad intermediate between the termini of the voyage; so that, if a seaman shipped here for a voyage to Liverpool, and was discharged there, his case would not be within the provisions of the statute,, and he would be entitled to his discharge there, and haA'e no right to further employment in the vessel by the terms of his contract and because it had expired; and in such case no extra wages would be payable for him. And the learned counsel for the petitioner contended that, by the provisions in the shipping-articles relating to the discharge in Liverpool, this was such a case; but we think it is not, and that Liverpool was, by the shipping-articles, an intermediate port in the voyage for which the seamen contracted.

The Aroyage is thus described in the finding of the facts : “ From the port of San Francisco to Liverpool, thence to one or more foreign ports, and back to a final port of discharge in the United States; term not to exceed twenty-four calendar months.”

This describes one entire voyage of two years’ duration, and from the United States to a foreign port or ports and back to this country, and a final port of discharge here. And there was no place or time in such voyage at which the seamen cohid. leave the vessel or be deprived of tbeir employment in .it, within or by force of the terms of the shipping-articles, br without a new and distinct contract, resting on a new assent or agreement between the master and seamen. Both parties, therefore, were bound for the entire voyage described in the shipping-articles at their date. And therefore Liverpool or any other foreign port was, by the contract in the shipping-articles, only an intermediate port in the voyage contracted for.

And it is necessarily and always has been the law that a seaman shipped here for a voyage out and home again might be discharged abroad by the mutual consent of-the master and seamen, for both are capable and free to contract; and it is precisely for a discharge so made that the' third section of the statute of 1803 provides, so that the agreement in the shipping-articles relating to the discharge of the seamen in Liverpool added nothing to the provisions of the law and was of no effect whatever as to the right of discharge there or at any other foreign port; for it provided only for that which was perfectly competent to the parties without it. '

But under the act of 1803, on the discharge of a seaman, with his consent, in a foreign country, three months’ extra wages are to be paid to the consul; and it is doubtless true that the parties intended the provision in the shipping-articles to be a stipulation that if, under it, the seamen took their discharge in Liverpool, they would waive the payment of the two months’ extra wages the statute provided for them ; for they did this when discharged in Liverpool, and they had a right to do it. And therefore the consul required and the captain paid only the one month’s wages required by-the statute to be retained for the humane purposes specified in it.

And it is certain that though the discharged seamen- might waive the benefit accruing to them under the statute, they could not waive the payment of the one month’s extra wages which under the statute accrued to the United States for the purposes referred to, and this the consul was bound to require and the captain was bound to pay, and it was all that was required or paid. And we think this merely fulfilled the statute in the very case it provides for, that of the discharge of, the seamen, with their consent, in a foreign country at intermediate ports in the voyage.

The judgment of the court is that the petition be dismissed.  