
    Ogden against Orr.
    No action can by a seaman, his^own^colv ™0untryi “fdcongress,ct t™1 cc°”s- |d against the vessel, to recover two-thirds of the three ™i?ectedWí>yes’ paid aCby°the t°f ® seaman, at the time of such discharge,
    IN error, on certiorari from the justices’ court of the city of New-York. Orr brought an action of assumpsit against Ogden, in the court below, for wages as a seaman, and also for a breach of the shipping articles, on a voyage from New-Orleans to Lisbon, and back to a port in the United, States. The plaintiff shipped on board the Paragon, at Nem-Orleans, on the 30th of April, 1813, at 35 dollars per month. One of the seamen, a witness, testified, that on the outward voyage the L , „ „ . . , . , crew were put on a short allowance of provisions, which continued until their arrival and while they remained at Lisbon, where the wages of seamen were from twelve to eighteen dollors per month. The crew, being called up at three o’clock in the morning, without occasion, conceived themselves treated ill, there being no duty to be performed until sunrise. They complained to the captain and mate; and being called up as before, * , . , . , . ° , r. they, after some time, complained again to the captain, and dpsired him to pay, their wages, and discharge them. The' captain replied, You icnow3.cannot discharge you, .but "I Will give you your wages, and; you may go to h—-1.” Tfié captain: then paid off the whole .crew, who went, ashore. A few days after, a new crew was shipped, at. 12 dollars per month. Otr was serif homeby the; -American consul,.as.a destitute seaman.- He was discharged the 8th. of July:,'1.3.13, -and arrived bi JSTemjjor't on the’ 4th Of September. On his'cross-examination, the witness said, that a few days after the, crew were discharged, the; captain met him, (the. witness,) and attempted to arrest him, but hé 'escaped:. , ■ .■ , ' .
    The captain, who was admitted; as a-’witness,' by consent, testified, that the crew were not put on short allowance, but that the provisions were distributed to them daily, in the manlier usual-on board, of merchant vessels.' The 'crew complained only of the mraté,, arid said they, iyotild not rétiiÉñ in the véssel ' ¡with him. He denied that he discharged the, crew, but. paid them off, at their" request, at 35 dollars, and hired a new crew, at 12 dollars per .month. " After being some time on- shofe;.. the crew applied to the consul for (assistance, who told them they were; too late* .as the captain had ta'ken away all His papers. It appeared, that* at Lisbon, vessels-were usually unloaded by lighters,, which" ply at certain hours, .and, frequently* at night. The log-book was offered in evidence, and the handwriting- of the mate,. Who was ,put of the ".sf'até, - was offered to be proved,. in order to' show the desertion of the plaintiff, but the"court below rejected the evidence ; and being of opinion that the plaintiff had not-desérted, but had been discharged by the captain, gave judgment for the plaintiff for TÓ dollars,, being two months’; wages, to which,, the court were of opinion, lie was entitled, under' the Act Supplementarytq the 'act concerning cpnsuls and vicerCOnsuTs,. and for the further protection of American seamen,” passed February 28, 1803. (ith cong. 2d-sens. c. 62.) ■ ", ■ ' t. .
   Per Curiam.

Phe court below have foimSed their opinion of the. plaintiff’s right to recover, altogether upon the act of congress.; (2d sess. 7th. con. c. 62. § 3.) and.if. the action is at all to .be sustained; it must lie under that statute; for-the facts in thé cáse lead irresistibly- to the conclusión, that the„ plaintiff ■below-left the vessel voluntarily, and with the consent cl the master. He received his wages up to the time of his discharge, and the evidence will not fairly warrant the inference that he was driven away by harsh and cruel treatment. Although the great disparity between the wages of the 'plaintiff and those given to the new crew, affords pretty good reason to conclude that the master was very willing to' part with his old crew ; yet the conclusion drawn from the facts in this part of the case, by the court below, against the plaintiff’s claim, ought not to be disturbed. . •

But we think the court below have, erred in the construction given to the act of congress. This act provides, that when a seaman or mariner* being a citizen Of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master to exhibit to the consul, or certain other officers, the list of his ship’s company, and to pay to the officer, for every seaman or mariner so discharged, three months’ pay, over and above his wages then due; two thirds of which is to be paid by the consul to the seaman discharged, and the other t hird to be retained by him, for the purpose of creating a fund for the benefit of destitute American seamen, and for which sün^the consul is to account with the treasury of the United States. Assuming that the plaintiff below was discharged with his own consent, the question is, whether he can maintain an action for the two thirds of the three months’ wages required in such cases to be paid by the master. The act directs, it to be paid to the consul; it creates no obligation on the master to pay it to the seaman; and the policy of the law seems to have been, that the money should pass through the hands of the consul, who is made, in some measure, the guardian of American seamen in foreign parts, for the. purpose of protecting their rights and relieving their wants. This three months’ pay was intended as a kind of penalty upon masters of vessels, to prevent their discharging" American seamen in foreign’ countries; and to allow the seaman to call upon and receive from the master his proportion' of the penalty, would not only be against the policy of the act, but would be depriving the fund, intended to be created for the "benevolent purpose of relieving.distressed seamen, of its share. It is, likewise,' taking from the consul the commissions to which, by the act, he is entitled. Besides,, this is a suit against ’the owner, and not against the master of vesseí- In whatever point of light, therefore, it is viewed,the judgment cannot be supported, ' -

Judgment reversed.  