
    Philip Cotel, Jun., versus Nathaniel G. Hilliard.
    The penalty provided in the second section of the act of Congress for the government and regulation of seamen in the merchants service is incurred by a desertioi previous to the commencement of the voyage; and that provided in the fiftisection of the act by a desertion after the commencement and during the con tinuance of the voyage.
    In this action, which was trover for certain chattels mentioned indie plaintiff’s declaration, the parties agreed upon a state of facts, from which it appears that on the 12th of March, 1806, the plaintifl signed a shipping paper in the common form, to serve as a mariner on board the brig Fox, whereof the defendant was master, on a voyage from Salem to Machias, and from thence to Turk’s Island, and back to the United States ; and on the «ame shipping paper subscribed a memorandum, engaging to render himself on board said brig on the same day to go the voyage aforesaid, and afterwards, on the same day, did so render himself on board ; that the said brig was of one hundred and sixteen tons’ burden, and the defendant, a mate, two seamen besides the plaintiff and the cook, constituted the crew which, it was agreed, were sufficient for the voyage : that the plaintifl received ten dollars at the time of signing the shipping paper, a? advance wages; that on the 15th of said March, and before the vessel sailed on said voyage, the plaintiff obtained license from the defendant to go on shore, from said brig then lying at Salem, with orders to return on board the same night; that he went on shore accordingly, but did not return on board at any time afterwards, bin refused so to do, and wholly deserted and escaped from said brig alleging, as a reason therefor, that the vessel was insufficient!) manned ; that the defendant then offered to ship anothei [ *665 ] man at Machias ; that the brig proceeded * to sea on said voyage without the plaintiff, and his absence and desertion were duly noted in the log-book ; that at the time of the desertion aforesaid, the plaintiff had the chattels aforesaid, on board the said brig, in possession of the defendant, and before the commencement of this action, they were demanded by the plaintiff of the defendant, who refused to deliver them, claiming them as foi feifed by reason of the desertion aforesaid.
    
      Upon these facts, it was agreed that if, in the opinion of the Court, the plaintiff is entitled to recover in this action, his damages should be assessed by a jury; otherwise that the defendant should recover his costs.
    The cause was shortly argued at the last November term in this county, by Putnam for the plaintiff, and Story for the defendant.
    
      Putnam
    
    contended that although this case might come within the second section of the act of the United States, “ for the government and regulation of seamen in the merchants’ service,”  which provides that any seaman neglecting to render himself on board the vessel, for which he has shipped, at the time agreed on, or, having so rendered himself, shall afterwards desert, so that the vessel proceed to sea without him, shall forfeit certain sums of money therein mentioned ; yet it was by no means within the provision of the fifth section of the act, which, in addition to certain pecuniary penalties specified, imposes a forfeiture of all the seaman’s goods and chattels on board the vessel, or in any store where they may have been lodged at the time of his desertion, to the use of the owners. This latter section, he insisted, applied only to a desertion in a foreign port. It is very clear that the legislature contemplated two distinct offences, and applied penalties of very different degrees of severity to them respectively: the provision first cited was intended to prevent or punish a desertion in the port of shipping, where the vessel is usually owned and laden, and where the hazard and inconvenience to the concerned would be vastly less than might arise from the same misconduct in a foreign port, to * prevent or punish which was the object of the fifth [ * 666 ] section. The reasoning in the case of Frontine vs. Frost, 
       is applicable to the case at bar, and goes strongly to confirm the position that the legislature could not intend to provide two distinct punishments for the same offence in two separate sections of the same statute. If the plaintiff’s case is within the second section, as the defendant must contend it to be, it is absurd to bring it also within the fifth section. These provisions being highly penal, the Court will incline to construe them strictly, rather than to extend them by a construction which is at least unnecessary.
    
      Story
    
    argued that the provisions of the two sections were cumulative ; and as the offence contemplated was extremely hazardous to the interests of ship owners, the legislature intended, if possible, to furnish a mean of punishing it. In many cases, the forfeiture of the seaman’s goods is all the satisfaction that can be obtained. He may, and most frequently does, take himself out of the reach of process, by which the pecuniary penalties are to be obtained. As the case at bar is within the words of the fifth section, there seems no reason why the plaintiff should not suffer the consequences thereby attached to his offence, one of which is the forfeiture of these chattels to the owner of the vessel, as agent for whom the defendant holds and claims them.
    
      
      
        U. S. Laws, vol. i 134.
    
    
      
       3 Bus. & Pul. 302
    
   The action stood continued for advisement; and at this term the opinion of the Court was delivered as follows by

Sedgwick, J.

It being agreed that the goods, for the conversion of which this action is brought, did once belong to the plaintiff, and that, upon a demand by him, the defendant refused to deliver them, there is no doubt of the conversion; and the only question is, whether the defendant is authorized by law to detain the goods as forfeited, for the cause alleged by him. The solution of this question depends on the construction of the act of Congress of the 20th of July, 1790.

By the first section, masters and commanders of ships or vessels in foreign trade, and in the coasting trade if the vessel be of the burden of fifty tons, are to provide shipping papers, written or printed, to be signed by the mariners, declaring th'e [ * 667 ] * voyage or voyages, term or terms of time, for which they shall be shipped.

The second section of the act determines what a mariner shall forfeit for neglecting for a time or wholly to render himself on board according to his contract, or for deserting or escaping, after having rendered himself on board, “ so that the ship or vessel proceed to sea without him.”

It is observable that these forfeitures are incurred for neglect or breach of duty in cases which can happen only prior to the commencement of the voyage; as a neglect of the mariner to render himself on board according to his agreement, or deserting, after having rendered himself on board, “ so that the ship or vessel proceed to sea without him.”

There is another kind of delinquency, not provided for by the second section of the act, viz., a mariner’s absenting himself from on board a ship or vessel, on board which he has shipped himself, without the leave of his commanding officer, after the commencement of the voyage. This case is provided for by the fifth section of the statute, by which it is enacted “ that if any seaman or mariner, who shall have subscribed such contract as is herein before described, shall absent himself from on board the ship or vessel in which he shall so have shipped, without the leave of the master or officer commanding on board; and the mate, or other officer having the command of the log-book, shall make an entry therein of the name of such seaman or mariner, on the day. on which he shall so absent himself, and if such seaman or mariner shall return to his duty within forty-eight hours, such seaman or mariner shall forfeit three days’ pay for every day he shall so absent himself, to be deducted out of his wages; but if any seaman or mariner shall absent himself for more than forty-eight 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 ship or vessel, &c., at the time of his desertion, to the use of the owners.”

To suppose that the forfeiture expressed in the fifth section includes a desertion before the commencement of the voyage, the case which is provided for in the second section, and which was, in fact, the case under consideration, is to suppose * that the legislature in the same act has provided two [ * 668 ] distinct and unequal forfeitures for the same delinquency ; which would not be respectful to those by whom the act was passed. We are, therefore, of opinion that the second section 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, and during the continuance of the voyage.

This opinion is fortified by the consideration that, by the fifth section, all the wages due at the time of the .desertion, when, upon this construction, it is to be presumed wages would be due, are forfeited ; while in the second section there is no provision for the forfeiture of wages, because the case contemplated being before the commencement of the voyage, very little, if any, wages can be supposed to be then due.

The result of this opinion is, that the defendant had no right to detain the goods of the plaintiff, and of course that the plaintiff is entitled to recover.  