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ance. Other witnesses, examined to this fact, with the exception of one, directly negative it. The evidence of the mates attributes language of a very improper character to Kendall. Mr. Webb states that when the crew came on deck, “the chief mate told them to man the windlass; upon which Kendall said, he would knock off the head of the first who touched a handspike. Shortly after this, Williams came partly up the forescuttle, but not on deck, and calling out to the crew, said ‘Avast, there ! it will be time enough to
heave the anchor up when I please ; upon which those of the crew who had come upon deck with Kendall returned with him below.” No doubt this is language and conduct severely to be reprobated; but I am not considering the conduct of Fullarton or Williams, but of Kendall. Mr. Webb distinctly negatives any attempt to prevent the men who were willing to work at the windlass from doing so ; he says, “it was only an interruption and jeering.” He states that, on the same day, after the men had been taken to the Queen's ship, he saw Kendall throw a handspike at Thompson, which struck him on the side of his head and cut his ear, a circumstance which is satisfactorily explained by the evidence. The last witness for the owners I shall refer to is Mr. Shepherd, the chief mate. He says, several of the crew, of those who had refused to obey the call on deck in the morning, were aft about Williams, encouraging him; Kendall was one ; that when captain Hadden, from the poop, ordered the crew to man the bars of the windlass, Kendall, Williams, Fullarton and others, all speaking together, said they wanted to go on shore ; that upon captain Hadden saying they should not go, they said they would enter on board the man-of-war; that “in the mean time, those of the crew and the apprentices, who had been from the first willing to obey orders, made an attempt to heave round the windlass, but were not able, in the doing of which they were interrupted by Kendall, Williams, and others of the crew, who tried to pull them back from the bars which they had manned :” every other witness negatives this fact but Mr. Shepherd.
With regard to the sending to the man-of-war, it would appear that the communication did not originate with the master; he threatened to send for assistance, but it is clear from his own evidence that the first signal to the schooner was the act of the crew ; but it is equally clear that captain Hadden supposed that assistance was necessary, for he wrote a request to the captain of the Fair Rosamond; that the latter came on board the Blake, and that two men were taken away. . But Kendall was not taken. It is not very clear whether the two men were taken as volunteers or as mutinous seamen; but the case does not depend upon this fact. It appears that there was some certificate of wages given at the time, which might lead to a supposition that they were not sent as mutineers; but I cannot come to the conclusion that they were sent as volunteers, as if no misconduct had taken place; I think they were taken because they had been guilty of misconduct. It seems to be admitted that Kendall called out, when they were taking the men away, “Why don't you take me? I’m a ringleader too.” But this was a mere bravado, uttered whilst in a state of intoxication, evincing a desire to accompany his two companions; it cannot be taken as an admission that he had been guilty of the same degree of misconduct. It is clear that the master did not consider the safety of the ship to be endangered by retaining Kendall, or he would have requested the commander of the man-of-war to have taken him too.
I do not know that it is accurately made out at what precise time after the occurrence Kendall resumed his duty; but within twenty-four hours he did return to his duty, and showed a readiness to perform it, and conducted himself with propriety from the time the vessel left St. Helena till the close of the voyage.
I come, not without considerable pain and difficulty, to the conclusion. Is this a clear case of forfeiture of wages Is it a case in which the whole wages, earned in the Indian seas during nearly two years of a seaman's life, are absolutely forfeited 2 I think nothing short of absolute necessity should drive the court to so severe a measure. I do not mean to extenuate or excuse the misconduct of the mariner, and I should rejoice much if the law gave me the power of mulcting him of a part of his wages; but I have not such power; the law binds me to pronounce against the whole claim, or for the whole claim. The conduct of the mariner has been most culpable, and I hope my judgment will not encourage the idea that the discipline of a ship can ever be relaxed with impunity, as I fully admit it is proved to have been on this occasion. But it was only one occasion, and when the inebriety was unchecked by the master, or the officers, but was allowed to go on to its height, and the consequences were gross disobedience and great insubordination; but of mutiny there was none. And what occurred, occurred in port, where the ship was exposed to no hazard, and I draw a strong line of distinction between disobedience of orders in port, and any insubordination whatever when the vessel is on the high seas, where it might expose to destruction the ship, the cargo, and the lives of all on board. But it is impossible to predicate this of what took place at St. Helena. It is absurd to suppose that a concerted mutiny would have manifested itself in the presence of a Queen's ship stationed within a few yards of the vessel. There was a temporary insubordination, and a relaxed state of discipline led to the offence, originating from causes which occurred prior to captain Hadden's assuming the command of the vessel—occurrences for which the mariner is not to blame, but in which the then master set the worst possible example, and destroyed the discipline of the ship. I do not think, that, under these circumstances, I ought to pronounce for the forfeiture; I adopt, therefore, the other alternative, and pronounce for the whole claim, and of course I must give the costs, otherwise (as lord Stowell observed) the judgment of the court will have no effect.
In the same Court, January 13, 1841.
The sale of a vessel under a decree of the court of Admiralty confers a sufficient title to the purchaser, without a delivery of the ship's register.
The vessel in this case was American property; upon her arrival in the port of Liverpool, she was arrested in a cause of bottomry, the bond having been granted at Boston. She was eventually sold under a decree of this court at Liverpool, and purchased by an American citizen, who refused to complete the purchase unless the ship's register was given up to him, which had been deposited in the hands of the American consul, when the vessel was abandoned. The consul withheld it, on the ground that he was bound to send it to the secretary of the United States. Burnaby, D., now moved for a monition to the consul, to show cause why he should not bring in the register. This being a case of an American ship purchased by an American citizen, there can be no reason why the consul should not comply with the ordinary rule of the court, to bring in the register. A monition has issued in other cases of refusal to deliver up a register. [THE Court. How will it better your title 2 You do not show that your title is infirm.] It does not appear, that by the law of the United States he is compelled to withhold the register, and we are entitled to know the ground on which he refuses to deliver it up. Dr. LushingtoN. I feel great difficulty in acceding to this motion. I am afraid, if I were to accede to it, I might throw some doubt on the general law and the authority of this court to sell and give a good title in cases of this kind. It is the undoubted right of this court, by the authority which it exercises, and which is confirmed by the municipal law of this country, and by the general principles of maritime law throughout the whole civilized world, in cases of bottomry, salvage, and wages, brought before this court, unless the demand be satisfied, to sell the vessel ; and the title conferred by this court, by the warrant of the marshal, is a good title against the whole world, and is recognised by the courts of this country, and by the courts of all other countries. In a case where the vessel was forfeited for a breach of the navigation laws, the title was good even against the crown. The consequences would be fearful, if I were to direct a monition to issue, since it must go on a presumption that, by possibility, the title conferred by this court would not be perfect without the register being brought in. In this case, perhaps, the monition might produce the document; but in many cases the document might be abstracted, carried off and conveyed to other countries, or the party in possession of it might obstinately refuse to give it up, and submit to an attachment; the consequence would be, that the title conferred by this court would be considered a defective title, which would inflict a serious injury upon the property of persons coming under the jurisdiction of this court; it would excite alarm, and deter purchasers, if any thing were necessary to confer a title beyond the document issued by a decree of this court.
It is said that, in the case of a British ship, the court has exercised this power; but this is subject to different considerations. It might be necessary to require the production and delivery up of the register, in the case of a British ship, at the custom-house, and the court has exercised, perhaps, a municipal jurisdiction over subjects of this country. But how am I to know the law of the United States on this subject It may be according to the law of that country, that the certificate of registry having come into the possession of the master or consul, he is totally prohibited from giving it up under a penalty.
Upon the whole, I do not think I ought to accede to this motion, because I could grant a monition only on the presumption that the title would be defective without the delivery of the register; whereas I am clearly of opinion that the register is not required, and that the only title is the document issued by this court in decreeing a sale.
Affidavits, sworn before a master in chancery, must express the name of the place where sworn. What is “mere towage.”
This was a question as to a claim for salvage remuneration, made on the part of the Nelson, a steam-tug belonging to a company in London, for services rendered to the Reward, a valuable West-Indiaman, which, on the 17th November last, in going down the river from Gravesend, encountered a severe gale, and, under