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Colonial Cases

British Consul v. Brown, 1870

[sailor's employment]

British Consul v. Brown

Supreme Court of China and Japan
8 August 1870
Source: The North-China Herald, 18 August 1870

LAW REPORTS.

SUPREME COURT.

8th August, 1870.

Before G. JAMIESON, Esq.

H.B.M. CONSUL v. M. R. BROWN,

Master of the Brit. vessel "Lizzie Allen."

   Mr. TAPP appeared to prosecute, for H.B.M. Consul.

   Defendant in person.

   The case was brought under the 207th section of the Merchant Shipping Act, par. 2, which enacts -

[If the Master of any British ship] Discharges any seaman or apprentice at any place out of Her Majesty's dominions, without previously obtaining the sanction, so indorsed as aforesaid, of the British Consular Officer there, or (in his absence) of two respectable merchants resident there" &c.

   Mr. TAPP, sworn, states - The Captain and mate came to my office together. The Captain showed me an account of wages between them, showing a balance of $180 to $190, and asked if the seaman could be discharged.  I asked for the usual guarantee.  Garland said he had not one, and he was going to Hongkong.  I said he could be discharged on production of pass ticket, and bill on Hongkong for balance.  He said he would go and see if he could get a guarantee from the home.  Before he went, I told the Captain not to pay him his wages unless he got the guarantee.  On the morning of the 6th, the Captain came up and wished to report Garland a deserter.  I asked him if the man left clothes on board, and whether he had paid him all his wages.  He told me he had given the man all his wages, and thought he would be at the office next day to get his discharge.  I did not see either of them, however.

   Cross-examiner by defendant - I told you distinctly not to pay off the man.

   A witness was called by the prosecutor and one by the defendant.  They both agreed that the w ages had been paid, and that the captain seemed to oppose no obstacle to Garland's leaving the ship.

   The defendant's statement was that, when told at the Shipping Office that a guarantee was necessary, he had gone on board again; that Garland had come to him and told him if he had enough money to pay his debts he could get a guarantee, that he thereupon advanced the whole of the wages due; and it was agreed that Garland should be on board the next morning with the guarantee, when they could together go to the Shipping Office; that Garland, however, had never come back, and on enquiry, he found his clothes and effects had been removed, and he therefore took steps to report him as a deserter.

   His Worship was doubtful if there was sufficient evidence to substantiate a case against the defendant.

   Mr. TAPP said, before his Worship gave decision, he would like to draw his attention to the meaning of the word discharge, in the section under which the case was put.  He contended that the Captain had done everything which constituted a practical discharge, by paying the man his wages on board the ship, and allowing him to take away his effects.  In order to point out more clearly the duty of a shipmaster in respect to the payment of wages, he quoted Abbott on Shipping, p. 495, a clause in which clearly limits the amount of advance which a master is authorised to pay a seaman, in a foreign country, to one-half of the amount due.  There was a punishment for this (double the amount paid to the seaman) but it could only be imposed by the High Court of Admiralty.  In this case, the Captain had clearly broken the law, notwithstanding the warning given him.

   His Worship here said he would reserve judgment.

   On the 10th, his Worship gave judgment to the effect that, after careful consideration, he was compelled to disbelieve the defendant's statement.  He must look to his acts as evidence of his intention at the time.  After being told, at the Shipping Office, that the man could only be discharged on certain conditions and not to pay him his wages without these conditions being complied with, he, nevertheless deliberately paid the net balance of wages into his hands, and gave him leave to go over the ship's side.  He believed the master was fully cognizant of the intention of the man to return no more.  It was practically giving the man his discharge; and as a warning to shipmasters generally, that they were not to discharge even time-expired men without the Consul's sanction, he would fine him $10 with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School