
    [Philadelphia,
    Jan. 6, 1823.]
    BEHNCKE against KING.
    
    IN ERROR.
    It a Seaman ship at the port of Philadelphia, and render himself on board, and after-wards desert at Chester, On the voyage down the river, the surety is liable to the forfeiture imposed by the second section of the act of congress, of the 26th July, 1790.
    Error to the Court of Common Pleas of Philadelphia County, where judgment was rendered in favour of Charles King, the plaintiff below* against the plaintiff in error, John C. Behncke, on an appeal from the judgment of JusticeRenshaw. It was an action brought by the plaintiff below, Charles King, master of the ship Recovery, against Behncke, as surety for a certain Daniel Knowl-ton, a seaman, who signed shipping articles, by which he bound himself to serve as a mariner on board the Recovery, on a voyage from the port of Philadelphia to Madeira. Knowlton rendered himself on board according to agreement, and remained in the ship till she had proceeded on her voyage as far as Chester, in the river Delaware, where the ship being stopped by the ice, he deserted, and did not return, so that the ship went to sea without him. - The suit was br'ought under the second section of the act of congress of the 20th July, 1790, to recover the sum advanced to Knowlton. In the Court of Common Pleas, the majority of the court charged the jury, that the plaintiff below, was entitled to recover, and the defendant tendered a bill of exceptions.
    
      Málvame for the plaintiff in error,
    contended, that the seaman having been on board the ship when the voyage began, the surety had fulfilled his obligation, and was no farther responsible. The act of congress of the 26th July, 1790, Sec. 2,  provides for the forfeiture of the sum advanced in two cases; first, where the seaman shall tuholly neglect to render himself on board; second, where after rendering himself on board, he deserts, so that the vessel shall proceed to sea without him. The vessel proceeds to sea when she begins her voyage : when she begins to proceed towards the sea. The fifth section amply provides for the case of desertion by a seaman after the voyage has begun, by specific penalties, of a different kind, and there is no necessity to extend the construction of the first section, in order to embrace the present case. There is good reason why the surety should be discharged from the moment the seaman renders himself on board: for he is then under the power of the master, who may detain him; or, if he escape, enforce the penalties provided in the fifth section. In Co-lei v. Hilliard, 4 Mass. Hep. 664, it is declared by the court, that the second section of the act of congress, intended the forfeiture expressed in it for conduct previous to the commencement of the voyage: and that in the fifth section was intended, such conduct of the seaman as should happen after the commencement of the voyage. So that proceeding to sea, and the commencement of the voyage, were there held to mean the same thing; and agreeably to this decision, the plaintiff below ought to have proceeded for the. penalties and forfeitures imposed by the fifth section, and not those embraced by the second. If the words, proceed to sea, are to receive a strict construction, and do not signify, proceed towards the sea, then the inquiry will be, where the sea commences. It is so difficult to fix the precise line,- that seaman and their sureties would be much embarrassed by the inquiry. It has been held that a road, haven, or even river, not within the body of any county, is high sea, in the idea of civilians. Montgomery v. Henry, 1 Hall. 50 In a note to 2 Pet. ,/ldm. Dec. 97, 98, (appendix) it is said, that the common law1 courts, have often determined, that a vessel has not proceeded to sea, within the meaning of the act of congress, until she has left the Capes of the Delaware. But no authority is cited for this position: and it certainly has never had the sanction of this court, if it were even so determined in the lower courts.
    
      Lowber, contra.
    The only question is, what is the meaning of the words in the -second section of the act, “ so that the vessel shall proceed to sea.” They evidently contemplate the vessel’s having arrived at the sea, being on the sea — and not merely going towards the sea. It is true, there is some difficulty in determining exactly where the sea commences: but .it .is sufficiently well understood, that in common language, it means when the vessel is beyond the Capes of the Delaware. The second and fifth sections of the act of congress, are enacted with reference to distinct objects: the second being intended for desertion in a port or river, where the opportunity of escape is comparatively easy, and where the surety may have knowledge of the offence, and procure the seaman’s return: whereas, the fifth section is enacted with a view to desertion in a foreign port, or place, out of the view or knowledge of the surety. In the latter case's, therefore, the master is to stop the wages, and hold the goods and chattels of the mariner. In the former, he may resort to the surety. In Cotel v. Hilliard, all that the court decided was, that a- seaman who, after having rendered himself on board, deserted before the vessel left the port, was not within the penalties of the fifth section, but was embraced by thé second section. But they had not before them the case of a seaman who deserted after the voyage began, but before the vessel had got to’ sea: and their language, in reference to such a case, must be deemed extra-judicial. •
   The opinion of the court was delivered by

Til&hman, C. J.

(after stating the facts). The question is, whether, on these facts, the plaintiff be entitled to recover of the defendant, a sum equal to that which was paid by advance, to the said Knowlton, at the time of signing the contract, over and besides the sum so advanced.- This depends on the act of congress j “for the government and regulation of seamen in the merchants’ service,” passed the 20th July, 1'/90.

The first section of the act, directs, “that the' master shall, before he proceeds on the voyage, make an agreement in writing, or print, with every seaman or mariner on board, declaring the voyage, and the term of-time, for which such mariner shall be shipped.” By the second section it is enacted, “ that at .the foot of every such contract, there shall be a memorandum m writing, of the day and hour, on which such seamen or mariners shall render themselves on board, to begin the voyage. And if any such seaman or mariner, shall neglect to render himself on board the vessel for which he has shipped, at the time mentioned in such’ memorandum, and the master or other officer, shall on the day on which such neglect happened, make entry in the log-book, of the name of such seaman or mariner, and shall in like manner, note the time that he neglected to render himself, (after the time appointed,) every such seaman or mariner shall forfeit, for every hour which he shall so neglect to render himself, one day’s pay, according to the rate of wages agreed on, to be deducted out of his wages. And if any such seaman or mariner shall wholly neglect to render himself on board such vessel, or having rendered himself on board, shall afterwards desert and escape, so that the vessel shall proceed to sea without him, he shall forfeit and pay, to the master, or owner of the vessel, a sum equal to that which shall have been paid to him in advance, at the time of signing the contract, over and besides the sum advanced, which may be recovered against him or his suretyJ’ This second section contemplates two kinds of default, or misconduct,, for which different penalties are inflicted. The first is, where the seaman renders himself on board) but not punctually at the time appointed, for which he is subject to the penalty of one day’s wages for each hour of default. The second is, where the seaman, either neglects wholly, to render himself on board, or haying rendered himself, afterwards deserts, so that the ship proceeds to sea without him, in which Case he forfeits double the sum Which has-been advanced to him. The present case, is a default of the second description. The seaman rendered himself on board* and after-wards deserted*, and the ship proceeded to sea without him. It is within the very words of the act, unless it can be made out, that going from Philadelphia to Chester, -is a proceeding to sea, for then the ship did not proceed to sea without him. It is certain;, that when the ship arrived at Chester, she was not at sea, and therefore, I do not comprehend how she had proceeded to sea. The defendant’seounsel say, thát a ship may be said to proceed to sea, as soon ás she begins to proceed towards the sea, in other words, as soon as she comménces the voyage. This construction is tod refined — too much at variance with the meaning of the words as generally understood. And moreover4, it seems at variance with the understanding of,the legislature — for in the first section, where it was intended, that certain'things should be done-Before the commencement of the voyage, it is said so. The master is directed to make an agreement with the seamen, before he proceeds on his voyage, not before he.proceeds to sea. -So in the second section, there is to be á memorandum in writing, of the day and hour, when the seamen shall fender themselves on board to begin the voyage. Neither will the object of the law be attained, on the defendant’s construction. The object was, to deter the seamen from deserting, as long as they might be supposed to have it in their power to desert — that is to say, until the ship got to sea. It is quite as easy to desert at Chester, as at Philadelphia. B ut when once at sea, there is no danger of desertion. It is objected, that there may be difficulty in deciding, when a ship is at sea. That may be ascertained by the opinion of seamen. And supposing there be a little difficulty, it is no reason for resorting to a construction, which would deprive the law of its'effect in a very material part. But the defendant’s counsel place great reliance ón the fifth section, which they say, inflicts a penalty for desertion after the commencement of the voyage, and therefore, it is to be intended, that the second section, extends only to desertion before its commencement. The fifth section is as follows: “If any seaman who shall have subscribed such contract, shall absent himself from on board the vessel in which he shall have so shipped, without leave of the master or officer commanding on board, and the mate or other officer having charge of the log-bools, shall make an entry therein, of the name of such seaman, on the day on which he shall absent himself, and if such seaman shall return to his duty within 48 hours, he shall forfeit three days pay, for every day which he shall so absent himself, to be deducted out of his wages ; but if he shall absent himself for more than 48 hours at one time, he shall forfeit all the wages due to him, and all his goods and chattels which were on board the said vessel, or in any store where they may have been lodged at the time of his, desertion, to the use of the owners of the vessel, and moreover, shall be liable to pay to him or them, all damage which he or they may sustain, by being obliged to have another seaman in his place.” On this section it is to be observed, that it certainly comprehends some cases, not included in the second section. It comprehends cases of desertion, after the ship has proceeded to sea, viz. in foreign ports, and perhaps that was its principal object, and I incline to the opinion, that it does not comprehend all the cases included in the second section — for instance, the case of a seaman who never rendered himself on board the ship, or of one, who having rendered himself, deserted .before the ship sailed on her voyage. Such was the case of Cotel v. Hilliard, decided by the Supreme Court of Massachusets, (4 Mass. Rep. 664). I agree with that decision, though I do not wholly agree with theWgument of the learned Judge, who delivered the courts opinion. He seemed to think, that the second section was confined to desertion before the commencement of the voyage. I think it extends to desertion before the ship has got to sea. There-isno inconsistency between the second and fifth sections. Even if the fifth section should be so construed as to include cases within the provision of the second, so as to inflict a cumulative penalty, according to the argument of the present Judge Story, who was of counsel with the plaintiff in the case of Cotel v. Hilliard, there would be no inconsistency. Inasmuch then, as this case falls directly within the words of the second section, as well as its spirit, it appears to me that the law is with the plaintiff. In 2 Peters’s Reports, 97, 98, (appendix,) it is said, in a note, to have been frequently decided in the courts of common law, that a vessel has not proceeded to sea,, within the meaning of the act of congress, until she has left the capes of the Delaware. No case is cited, but. I presume the author would not have made the assertion without some authority. Be that as it may, as it is quite certain, that the ship had not proceeded to sea, when she had gone no further than Chester. I am of opinion that the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.  