United States v. Nye

CURTIS, Circuit Justice.

Since the adjournment of the court I have looked into the authorities, and considered the points made at the bar. As to the change of master, there is no evidence that the men were induced to ship by a false representation that Rose was to go as master. If they were, it would deserve very serious consideration, whether they were bound by the contract The evidence is. that Rose had been spoken of as master to one of the men, but not as certain to go; that Burgess had in fact been appointed, before the articles were signed, and his name is in the articles. Even if Rose had been master when the defendants shipped, the owners had power to change him for another. U. S. v. Haines [Case No. 15,275]; ü. S. v. Cassedy [Id. 14,-745]. This point cannot avail the defendants.

The objection arising from the alleged defect of evidence to prove the offence decrib-ed by the act of congress, is attended with more difficulty. The crimes act of April 30, 1790, § 12 ( 1 Stat. 115 ), made it an offence to “endeavor to make a revolt.” It contained no othec description of the offence, and no definition of a revolt It was under this act, the cases of U. S. v. Haines [supra], U. S. v. Gardner [Case No. 15.188], and U. S. v. Barker [Id. 14,516], were decided. In the first of these cases, it was held that, a total suspension of the command of the master, by the illegal refusal of the men to obey any and all his orders, was a revolt; and that a combination so to refuse, followed by an ae- *211 tual refusal In some one instance, was an endeavor to make a revolt. And this continued to be the law laid down by this court in subsequent cases. The act of March 3, 1835, § 1 ( 4 Stat. 776 ), has defined the of-fence of revolt, and among other things which may constitute it. is “unlawfully, wil-fully, and with force, or by fraud, threats, or other intimidations, deprive the master of his lawful' authority and command.” Now the argument is—that in this case, the men used no force or fraud, and uttered no threats, and did nothing to intimidate the master. But this does not meet the point. They are not indicted for making a revolt, but for endeavoring to make one; and therefore, though they did not make one, but did in fact deprive the master of his lawful authority, and this by means of a combination which embraced the entire crew, and left the. master without means to enforce his authority, the question is, if this was not an endeavor to intimidate him; or if this was not so, whether their combination to refuse to do duty, if it existed, did not also include a combina! ion to resist the lawful commands of the master, to make sail and go to sea. In the case of U. S. v. Cassedy [supra], Mr. Justice Story, in the trial of an indictment under this act, instructed the jury that the question was, “whether there was among the defendants a common confederacy to refuse to do further duty on board the ship, and to resist the lawful commands of the officers in regard to the sailing or preparation for the voyage.” This would include a confederacy to resist by force, threats, or intimidations of any kind. The proper instruction in this ease, I consider to be this: if there was a confederacy and combination by the defendants, to refuse to go to sea in the brig, and to prevent the brig from sailing, pursuant to the orders of the master, while they were on board, and this determination was made known to the master, there was an endeav- or to commit a revolt, within the meaning of the act of congress. Reg. v. McGregor, 1 Car. & K. 429.

The other question, of the right of the crew to refuse to go to sea in the brig, on account of alleged unseaworthiness, was considered by Mr. Justice Story, in U. S. v. Ashton [Case No. 14,470]; and also by Mr. Justice Wood-bury in U. S. v. Staly [Id. 16,374]. I think the correct rule is, that after the men have rendered themselves on board, pursuant to their contract, and before the voyage is begun. they may lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe, and do believe, the vessel to be unseaworthy. But the presumption is that the vessel was sea-worthy; and the seamen must prove that they acted in good faith, and upon reasonable grounds of belief that the ship was not in a fit condition to go to sea, by reason of unseawocthiness. If they prove this, they are justified in their refusal, and are not guilty of any offence in this case.

The jury found the defendants guilty.

Before sentence, the court remarked that, though satisfied with the verdict, which affirmed the seaworthiness of the vessel, the' evidence showed some of the standing rigging to have been in bad order; and that it was not a proper practice to send a vessel to sea, with the rigging in such a condition, as to impose on the crew the labor of very considerable repairs at the outset of the voyage; that though the conduct of the men was unjustifiable, it found one palliating circumstance, in the state of the rigging, and another, in the fact that they came on board sober, and fit for duty, and offered no actual violence to either of the officers. In addition to the imprisonment of fifteen days, already suffered, the sentence was, a further imprisonment of fifteen days.