Without passing upon the competency and sufficiency of the proof offered to establish a desertion at Ham-burgh, and the consequent forfeiture of wages to that time, with those demanded by the claimant to the arrival of the vessel in this port, I shall place my decision chiefly upon the other ground of defence, that after the libellant had voluntarily separated himself from the ship and her voyage, even if with the assent of the master, he had no right to reclaim and resume his place on board at his own option, and thus render the ship liable to him as on a contract of hiring.
The libellant intentionally absented himself from the vessel from the 24th of June to the night of the 5th of July. If he received permission from the mate to go ashore, it was a limited one, and under orders to return immediately to the vessel. The mate denies he gave him any leave of absence, and testified that the libellant went off without his knowledge, and when the master vras not on board. This statement is contradicted by the testimony of some of the crew, but is satisfactorily corroborated by others, and the result of the whole evidence shows that the libellant went from the ship of his own will, without authority of the mate or the knowledge of the master. His wilful absence that period of time, in a foreign port, without offering to return to his duty, must be deemed intended to be a final leaving of the ship on his part (Cloutman v. Tunison [Case No. 2,907]; 1 Hagg. Adm. 163); and if assented to by the officers, would only render it a leaving or discharge by mutual consent. It is this aspect of the case which will be mainly considered. The penalty of forfeiture of wages incurred by a wilful desertion, or unauthorized continuation of an absence originally permitted, inflicted by the maritime law, or under the United States statute, could only apply to his previously earned wages, and will afford no defence against the main claim in this action. Had he then left the ship on mutual agreement, with the master, he could not make himself one of the crew again without the assent of the master; the shipping contract being rescinded by consent of both parties, cannot be reinstated by an after offer of the seaman to perform it on his part. A fair and honest offer of his services to the ship a reasonable time before she sailed from Hamburgh, or before another man had been shipped in his place, would not have compelled the master to receive him; his case would have stood upon an entirely different footing from .that of a deserter returning penitently to the ship, and proposing a submission to her authority, or that of a wrongdoer, who had been expelled the ship by the master for misconduct on board. In either of these cases, the law, upon the subsequent and full submission of the seaman, may interpose, and exact from the master a condo-nation of the offence, and a restoration of the seaman to his place in the ship. Curt. Merch. Seam. 150. The master may also, by positive la-w, be subject to damages or penalties for leaving a seaman abroad, or even discharging him by his consent (Act Peb. 28, 1803, § 3 [2 Stat 203]; Abb. Shipp. 147, and notes); but that liability rests on other grounds than that the contract still subsists between the mariner and the ship. The principle and purpose of the rule is to control the punitive power of the master in relation to the misconduct or negligence of seamen, and to coerce the exercise by him of the pardoning power in cases equitably and fairly entitled to claim it, and with a leniency and liberality adapted to the dispositions and capacities of seamen, as well as the quality and effect of their wrongful conduct towards the ship. Whitton v. The Commerce [Case No. 17,604]; Abb. Shipp. 147, and notes.
What the libellant could not secure to himself by an open offer to return to the vessel, he cannot effect surreptitiously. His entry clandestinely on board, and secreting himself there without the knowledge of the master, does not restore him again to the service of the ship, and entitle him to demand the place and privileges of one of the crew. His desertion from the ship, or agreement with the master to leave her, annulled the contract he had made with her owners, and a new engagement would be necessary to clothe him with any rights against the vessel for after services on board. Those rights result from contract, express or implied, and the mere rendition of services under circumstances negativing the idea that they were voluntarily accepted by the master, or with a view to the benefit of the ship, will lay no foundation for a claim of compensation against her or the master. The evidence is clear that the master ordered the libellant to work his passage, in order to indemnify the owners for the expense imposed upon the ship by his unauthorized and unjustifiable intrusion on board. The ship was out at sea when he exhibited himself to the master, and could not then be freed from him. The *474master could rightfully have enforced this service upon him without his consent; but I think there is sufficient evidence that the li-bellant freely agreed to comply with that order. He was told his place was supplied by another, that his services were not wanted, and that his clothes and effects were . sent ashore at Hamburgh. He replied he did not ask for them, and only wanted a passage to New-l'ork.' This sufficiently establishes the consent of the libellant to .do duty on board in satisfaction of his pasasge. and not in the character of one of the ship’s crew. He had received, as it appears, in pay and hospital money, when he left the ship, $20 SO, and his wages on the outward voyage amounted to only $20 50. On this statement of the account he had been already overpaid. In this point of view there would be nothing for the forfeiture to act upon beyond the contract, if he is held to have incurred one. A more exact computation may possibly show there was still a balance in his favor, but as no such balance was claimed at the time by him, I do not consider it advisable to send the case to a commissioner on that inquiry, as, independent of the right of forfeiture, the claimant would more than extinguish the balance, if any is found due. by the costs to be decreed against the libellant. I shall, therefore, order the libel dismissed, with costs.