delivered the opinion of the Cqurt.
This is an action brought by the master of a vessel against the owners for the voyage, for wages and commissions. His claim is resisted, upon the ground of forfeiture for misconduct. By the act complained of, the vessel was by law forfeited ; but a representation having been made by the defendant, that the act was ignorantly done; and having been able to satisfy the District Judge, by his own oath and by other proof, that this was the fact; upon a statement to this effect from the judge, the Secretary of the Treasury remitted the forfeiture, upon payment of costs. It is certainly with a very ill grace that the defendant, having sought and obtained the clemency of the government, now refuses to extend it to the master, even if he was in his power. Upon the question, whether the master acted wilfully or ignorantly, the admission of the defendant, when not under oath, would be evidence. If deliberately made, and under the sanction of an oath; but more especially, if made in-a judicial proceeding, where that very point was under investigation, it is evidence not easily repelled, if not conclusive as to the defendant. Considering further that the defendant established the fact, he would now con-*71troven, that be succeded in purging tbe act from all imputation of fraud or wilful misconduct, and thus relieved himself from the injurious consequences to which he was exposed, it would seem not to be going too far to hold him concluded upon this question. But we do not give a decisive opinion upon this point ; as we are satisfied the verdict ought to be sustained upon other grounds. The master is holden to the utmost fidelity in the discharge of his duties; and he is responsible for any failure in this respect, arising either from negligence or fraud.
It is not true that every illegal act of the master, as for instance an act of smuggling, subjects him, by the marine Jaw, to a forfeiture of his wages and commissions, as a matter of course; whether it has been followed by damage or not. The marine law looks to the fact of injury. In a gross and aggravated case, or where there has been serious injury and loss, the misconduct of the master may subject him to the forfeiture of his wages. In other cases it may require such equitable reduction from them, as may indemnify the owners for the injury they may have sustained. The case before us could not have been gross ; otherwise the penalty imposed by law, would have been enforced. The damage sustained by the defendant has been ascertained ; and complete justice is done him, by holding the master responsible to that extent, whether he is liable upon the ground of negligence or fraud.
In Willard v. Dorr, 3 Mason, 161, which was brought by the ad-ministratrix of the master of a ship for his wages, it was, among other grounds of defence, objected that at Sydney cove, or Pori Jackson, in New South Wales, the master was engaged in smuggling spirits, for which illegal proceeding the ship was seized and detained, and though finally released, expenses were incurred to a considerable amount. Story J, in delivering the opinion of the court, says, “ Smuggling, on the part of a master, is a criminal departure from duty, and a rank offence, calling upon the court for its most decided reprobation. Where it is gross in its circumstances, and attended with serious damage or loss to the owner, it is such a violation of the master’s contract, as may be justly visited with the penalty of forfeiture of wages. And under the most venial and favorable cir-*72curastances, the damages actually sustained by the owner, may be charged upon the wages-of the master, and deducted by way of diminished compensation therefrom.” In that case, the wages were not held to be forfeited.
It being the opinion of the court that, if the evidence rejected had been received, it would have entitled the defendant to a reduction from the plaintiff’s claim only to the amount of the damage he had actually sustained, and that having been allowed him by the jury, there must be Judgment on the verdict.