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Colonial Cases

McLarty v. Macfarlane, 1867

[sailors, articles of service]

 

McLarty v. Macfarlane

Supreme Court of China and Japan
1867
Source: The North-China Herald, 23 May 1867

 

[SUPREME COURT.] [Header missing.]

MERCHANT SEAMEN.

The case McLarty v. Macfarlane, tried yesterday before H.M.'s Supreme Court, involved only a petty amount; but brought to light an apparent laxity on the part of H.M.'s Nagasaki Consulate, which will no doubt become the subject of further enquiry.

The plaintiff took service, on the 19th December last, as second engineer of the Island Queen, signing articles for three months; the articles, however, containing a subsidiary clause that, in the event of the vessel being sold, he was to be given a passage to Shanghai from the port of sale, and to receive wages only up to the time of his arrival.  The Island Queen went to Nagasaki, and lay there for some time, during which negociations were entered into that appeared so likely to end in her sale that, on the 10th February, the Captain desired the officers and crew to attend at the consulate, for the purpose of receiving their discharge.  McLarty attended with the rest but, unlike them, he demurred to the legality of the discharge - inasmuch as the vessel had not been sold - and refused to accept it.  H.M.'s Vice-Consul endeavoured to overcome his objection but, according to the Plaintiff's distinct oath and the Captain's own admission, ineffectually.  He steadily refused to accept the $55 tendered him, as other than part payment of his claim, and eventually left Nagasaki without receiving it, as the Captain would not hand it over to him on these terms. After arriving in Shanghai, he waited, apparently, till the 19th March; and then asked captain Macfarlane, as owner of the steamer, for the balance of wages due under his three months agreement, which expired on that day.  Captain Macfarlane declined payment, and hence the present action.

The action itself, however, as we remarked before, is comparatively unimportant.  Its interest lies in the following extraordinary endorsement on the ship's articles, by H.M.'s Vice-Consul at Nagasaki.

I hereby certify that the within named John McPhie Chief Officer, H. McLarty, 2nd engineer, &c., &c., have been duly discharged by mutual consent, wages paid up to 15th instant, and a passage provided to Shanghai.

The whole evidence went to prove that the plaintiff had refused his discharge, and declined to accept the wages tendered him. An explanation therefore will probably be sought from the Vice-Consul of the reasons which induced him to say that the discharge had taken place "by mutual consent" and that his wages had been paid.  Even in the apparently impossible contingency of his discrepancy being removed, the incongruity will still remain, of a Consular official not only overlooking a well founded protest, but endeavoring to induce McLarty to abandon his claim.  So long as the steamer was not sold, the clause rendering the agreement terminable in such an event, had clearly not become operative.  H.M.'s Vice-Consul seems therefore in the unpleasant position of having lent his influence to accomplish an illegal measure, instead of pointing out to Captain Shaw how illegal the action was.  It signifies not how immediate, at the time, the prospect of sale appeared.  The sale had not been effected, and has not been, to the present day.  The negotiations fell through, and the Island Queen has returned to Shanghai, where she is again advertiser to tow vessels in search of tea freight, to Hankow.

One principle object of the clause in the Merchant Seamen's' Act requiring Consuls to examine into the grounds of seamen's discharge, is their protection against high-handed or arbitrary proceedings.  Deprived of such support, a sailor is helpless to a degree.  He has no remedy on the spot; and on his return to another port can probably not command the funds necessary to obtain legal redress.  For all these reasons, we repeat, it behoved the official through whom the discharge of the crew of the Island Queen was conducted, to take careful note of and support McLarty's protest.  It seems, on the contrary, to have been arbitrarily overruled, and not even recorded.

The only other remarkable feature in the case was the defendant's amusing endeavour to evade responsibility by silence; and its signal failure.  He was in the act of pleading that no ownership in the Island Queen had been proved against him, when he was summoned to the box and forced to admit that he was owner.  Whether he will eventually be held liable for the claim, remains to be seen.  The error by the Nagasaki Consulate imparts so new a feature to the case, that the Court took time to consider how far it might shift the responsibility from the owner's shoulders.

 

Source: The North-China Herald, 1 June 1867

H.B.M. SUPREME COURT.

May 28.

Before C. W. GOODWIN, Esq.

McLARTY v. MACFARLANE.

The evidence in this case was reported in our issue of the 23rd instant.  The Court has since delivered the following judgment.

The plaintiff in this case signed articles for a three month voyage to Japan and back from December 19th, 1866, to March 19th, 1867, with a proviso for terminating the agreement if the vessel should be sold in Japan, in which case he was to have a passage found back to Shanghai, and his wages to continue until reaching that port.  He alleges that he was wrongfully discharged in Japan, the vessel not having been sold as anticipated, and claims the balance of his wages from January 31st up to which time he was paid, and compensation for the loss of board, lodging and other advantaged which he would have had if the engagement had been properly completed.

It appears that an attempt was made at Nagasaki to prevail upon the plaintiff to consent to his discharge, upon the ground that the ship was about to be sold.  He refused to consent, urging that the contingency by which the agreement was to be terminated, namely the sale of the ship, had not yet arrived, and in fact she has never been sold.  No answer was filed, and on the Court requiring the production of the articles, an endorsement appeared thereon, signed by the Consular Office at Nagasaki, certifying that the plaintiff with others had been discharged "by mutual consent."  The plaintiff swears that this certificate is incorrect, that he never consented, nor ever signed any discharge as required by the Act; and the Captain, on being called as a witness completely confirms the allegation.

Nothing can be more clear than that this certificate was prematurely and improperly endorsed, but the question was raised whether the appearance of this formal attestation upon the back of the articled was not, under the Merchant Shipping Act, to be taken as a decision, at least in favour of the owner.  The 175th Section enacts that upon the completion before a Shipping Master of any discharge and settlement, the master or owners and each seaman shall, in the presence of the Shipping Master, sign certain forms of mutual release, and the Sipping Master is to sign and attest the same.  A release so signed and attested shall operate as a mutual discharge and settlement of all demands between the two parties in respect of the past voyage or engagement.  A copy of such release certified under the hand of the Shipping Master to be a true copy, shall be receivable in evidence upon any future questions touching such claims as aforesaid, and shall have all the effect of the original of which it purports to be the copy.

Now had the release in the present case been signed by the plaintiff, there is no doubt it would have discharged the master and owner, but it is conclusively proved that the plaintiff never did sign, it never operated as a discharge and settlement, and the certified copy is of no greater force than the original.  In passing, I may remark that the discharge of a seaman at a foreign port under an agreement that he shall be sent back, not to a port in Her Majesty's dominions, or a proper port of discharge, is not authorized by the Merchant Shipping Act, and it would be against the duty of a Consul to sanction the re-shipment of a seaman to such a port, where he may become a charge upon the English government.

The judgment must be for the plaintiff, for the balance of his wages undetr the contract from Feb. 1st to March 19th, and he is entitled also to the sum of $45 for board for 36 days at $1.25 a day, and also to the costs (taxed) of this suit.

[See also 'Summary of the Week," this issue.]

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