Page:Federal Reporter, 1st Series, Volume 5.djvu/206

 19e fEDEBAIi BEFOBTEB. �At the trial, the counsel in defence relied ■wîth great confi- dence on the opinion in U. S. v. Smith, 95 U. S. 586, insisting that it was conclusive against the validity of defendant's ship- ment ; and, upon the present motion for a new trial, remarks ojE Mr. Justice Clifford in that case are nrged upon us as decisive, and should control our conclusions upon this point. His language is as foUows: "Seamen, however, for such a voyage (eoastwise) must be regularly shipped, and the mas- ter, before he proceeds upon the voyage, must make with each seaman he carries to sea, as one of his crew, an agreement in ■writing or in print, in the manner and form required by the act. Voyages of this kind, not being within the opera- tion of the body of section 12, act of June 7, 1872, the agreement is not required to be signed in the presence of a shipping commissioner; insteadof that, the owner, consignee, or the master of a ship, so far as the ship is concerned, may himself, in such a case, perform the duties of such a commis- sioner; but third persons possess no such authority in any case." �Smith's case was before the supreme court of the United States, on a certificate of division of opinion from the circuit court for the Massachusetts district, upon the question "whether the act of 1872 applies to the shipping of seamen on vessels engaged only in and for voyages eoastwise between Atlantic ports." This question was answered in the nega- tive. The decision, therefore, of the court, apparently, is not in accord with the foregoing quotation from the opinion of Mr. Justice Clifford. If "the act does not apply to such voy- ages," the regulations touching the shipment of the crew, as found in the act, are not applicable, any more than any of the other provisions contained in the act. �The ruling at the trial was in conformity with the decision itself — was based thereon — and was in accordance with what is understood to be the uniform practice in this circuit. It has never been held that the provisions as to shipments of crew on foreign voyages were applicable to coasting voyages. As stated by Lowell, J., in The T. W. Haven, 8 Fbd. Ebp. 350, decide d in July last: ����