Page:Federal Reporter, 1st Series, Volume 9.djvu/238

 THE MABY CCONEftY. 22S �seaman's leaviug the vessel without permissioD is nbt necessarily desertion, lu order to constitute desertion, in the sense of the law, he must quit the ship and her service, not only without leave, but without justifiable cause, and with intent not again to return tO the ship's duty. It is admitted that the libellant went without leave, but the question remains, had he justifiable cause for going ? A. mas- ter, doubtless, may disrate a CQok, and steward, if it tums out that he is incompetent to perforim propecly the duties pf the position^ and when this oeours at sea he may assignthe disrated person.to the performanoeiOfsuch services ag are reasonable under the circum- stances, until they rea«h a port. But.,I regard such an act by the master as an abrogation of the conkact with the cook and steward, and leaves hiu):, when a poKt is reached, or if the disrating takes place in port, to the optjon of accepting it as a discharge, or of remaining ,on bqard in his.i^ew position. If he eleots the former, he is entitled to the payment of wages, according to the contractj up to the dateof the disrating. �• I do not find this question discussed in the books, nor did the proctors, on the argument refer me to any authority touching it. But since I have reached the above conclusion on principle, I have been strengthened in its soundness by observing the case of The Hotspur, 3. Sawy. 194, in whiph Judge Deady takes the same view, and holds that tHe disrating of the cook and steward, and placing him before the mast, amounts in law to the rescission of the contract by the master, and the stewardj accepting such rescission, may claim his discharge. �, "Admitting," says the learned judge, "that the libellant was properly dis- rated, I tiiink he is entitled tcf his discharge. By disrating him the master abrogated the contract to serve as cook and steward, as far as he is concerned. This contract being thus terminated, the master ought not to he allowed t» hold the libellant to other service against his will. * * * Where the per- son disrated is unwilling to remain longer on board, I do not think th© master has my power to compel him to remain and serve in a capacity totally different f rom that in which he engagea." �As the proctor for libellant, at the hearing, waived all claims for extra compensation, or for the expenses of getting back to the United States, the. above view renders it unnecessary for me to consider whether the libellant was properly disrated or not. The testimony largely turned upon that question, and to justify the course of the mas- ter, a book, purporting to be his officiai log-book, was brought forward, which bears upon its face and internally so much proof that it was manufactured for the occasion that I ought not to let it pass without ��� �