Page:Federal Reporter, 1st Series, Volume 9.djvu/579

664 FEDERAL REPORTER. �striking the libellant with a club after he came from the cabin. One of the passengers thinks the mate had a club in his hand, but he is sure that the mate dld not strike the libellant with it ; and all the other witnesses for respondents assert that when the mate came from the cabin the only thing in either hand was his revolver. �The version of this affair given by libellant and his witnesses is so unreasonable as to demand confirmation, before a court accustomed to listen to the statements of seamen, as to transactions of this descrip- tion, would be likely to place entire confidence in its correctness. It is hardly credible that, without much greater provocation, both master and mate would pour out such a tirade of vulgarity and profanity upon a sailor, with whom neither of them ever before had the least difficulty, each of them using thesame disgraceful epithets; and it is alike incredible that, when the seanaan had returned to duty in obe- dience to the orders of the master, that the mate, without further provocation, would, in the master's presence, so violently assault the seaman with a club, following up the blow by a pistol shot, without any demonstrations on the part of the seaman. After a careful peru- sal of all the evidence, the court is forced to the conclusion that the testimony in support of the charge is so highly perverted, so exagger- ated, and so colors and misrepresents the facts as they occurred, that a court of justice would not be authorized to give credit toit, except- ing when it is sustained from other sources. �More than 40 years have elapsed since Judge Story, in U. S. v. Taylor, 2 Sumn. 584, declared — �" That subordinate offlcers have no autliority to punish a seaman when the master is on board, unless such punishment is absolutely required at the very moment, by the necessity of the ship's service, to compel the performance of duty, and that the master was generally the sole authority, when on board, to authorize punishment to be inflicted on any of the crew; and if he is pres- ent when any punishment is inflicted by a subordinate offleer, and can prevent it, and does not, he is personally answerable for the act, and by his acquies- cence adopts it as done by his authority." �At a much earlier date, Judge Ware, in this district, aad m re- peated instances enforced these rules in controversies of this descrip- tion. They commend themselves to every judicial mind as just and reasonable, requiring the master "to exercise his own judgment as to the time, the manner, and the circumstances under which punishment is to be inflicted on the crew for any past misdemeanor, or any pres- ent misdemeanor, not immediately and materially affecting the ship's service or security." So far as these rules are found applicable to the facts here established, they must control the judgment of the court. ��� �