This action was brought to recover the wages alleged to be due two seamen, amounting to $43.09. The defence is desertion.
It appears that these men shipped at New York on the 4th of December, 1902, for a voyage to Norfolk and return to an eastern port of discharge, at the rate of $25 per month, in company with another seaman. The latter became ill when the vessel reached Norfolk and was discharged there for that reason. Another man was shipped in Norfolk, who turned out to be a non-union man. The vessel sailed from Norfolk for Boston, after the libellants knew about the new man, .but put into New York to make some repairs and the libellants left her there, alleging that the substituted man was not an able seaman. The testimony indicates, however, that the real reason of their objection to the new man was that he did not belong to the Seamen’s Union. The advocate for the libellants does not attempt to support the libel upon such ground but claims that they are entitled to recover because of section 4516, Rev. St. U. S., as amended by Act Dec. 21, 1898, c. 28, 30 Stat. 755 [U. S. Comp. St. 1901, p. 3071], which provides:
“Sec. 4516. In case of desertion or casualty resulting in the loss of one or more seamen, the master must ship, if obtainable, a number equal to the number of those whose services he has been deprived of by desertion or casualty, who must be of the same grade or rating and equally expert with those whose place or position they refill, and report the same to the United States consul at the. first port at which he shall arrive, without incurring the penalty prescribed by the two preceding sections.”
A good deal of the difficulty which would arise from the words of the statute, is overcome by the fact that the new man, though not of the same grade as the others, as he was an ordinary seaman and *430received but $20 per month, was able to work acceptably to the master and without complaints from the libellants, until they were put forward to meet the defence in this action.
I must hold, under the circumstances, that the libellants were not justified in leaving the vessel and that the defence of desertion should be sustained.
Libel dismissed.