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Colonial Cases

Malone v. Walton, 1875

[shipping, wages]

Malone v. Walton

Supreme Court for China and Japan
Hornby C.J., 9 January 1875
Source: The North China Herald, 14 January 1875




Shanghai, Jan. 9th, 1875

Before SIR EDMUND HORNBY, Chief Judge.

His lordship delivered judgment to-day in the following cases:


   Action brought to recover $264, balance of wages due, as captain of the schooner Alexandra seeks to recover from the owner certain expenses incurred and paid by him as captain of the ship, upon his owner's behalf; and he claims also damages which he says he has suffered and will duffer by reason of his having been discharged in Shanghai instead of Australia.  These damages he fixed at $500.  With the exception of 12/6, the cost of a telegram, is disallow all the items of expenses, first, on the ground that I have no proof they were properly incurred or necessary'; and, secondly, because they are not vouched.  I have always held and shall always hold, that a captain of a ship is bound to prove that every farthing he spends on his owner's account has been properly and necessarily expended, and that he should produce vouchers for all such items as it is possible to vouch.

   I do not consider that carriage hire is necessary to a man, in a place like this, who has the use of his limbs.  I do not consider that hotel bills are necessary, when the captain can and ought to take his meals on board his ship; and as in this case, I am not satisfied that he had any business to transact, except handing in his papers to the agents of the ship, and discharging one crew and shipping another.  Moreover, with the single exception of the telegram, no recipient or vouchers are produced, and as to the bill for medicine, I would not allow it on principle.  In the midst of a bill which consists of several items, is inserted an amount of £1. 17. 6, for medicines supplied to the captain; it may just as well be that £1. 17.  6. was lent to the captain.

   As regards the amount for wages, I accept the owner's account as the most probable, namely that, for the first month, the captain was merely superintending the repairs, at £14 per month; and that for the remaining six months, the time for which he acted as captain, he was to receive £15 a month.  His agreement as captain was clearly for six months certain, and those six months I allow him at the increased rate.

   I pass on to the captain's claim for $500, as damages incurred by his discharge in Shanghai instead of the Australian Colonies.  The plaintiff says that he was first engaged on the 3rd of May, and that by this agreement, he was to be discharged at some port within the Australian Colonies; that subsequently, on the 5th of June, his wages were to be £15 a month, so that I am asked to conclude that though there was a distinct understanding about where he was to be discharged, on the 3rd of May, there was no understanding as to the rate of wages he was to receive until the 5th of June.  If the captain had asserted that his engagement as captain only dated from the 5th of June, and that his six months run from then, I might have been inclined to attach some credence to it, but he distinctly states he was engaged as captain on the 3rd of May, and that it was then arranged he was to be discharged in an Australian Colony although the ship was then on the slip and only fitting out.  I do not believe this; it is to my mind most unlikely that the whereabouts of his discharge should then have been settled, and that the amount of his wages should have been left unsettled.

   I think that it is to the agreement of the 5th of June that we must refer, not only on the point of where he was to be discharged, but also as to the pay he was to receive.  The captain said there was now written agreement; the owner affirms that there was, and that the captain had told him that he had destroyed it.  What its contents were - if it ever existed - there were no legal means of ascertaining.  I am bound, therefore, to decide this case on the evidence offered at the hearing on either side.  The plaintiff swears that it was arranged he was to be discharged in the Australian Colonies, and he urged that this is borne out by the fact that according to the articles, the crew were to be there discharged also; and if the two agreements had been contemporaneous, there might be something in the argument; but according to the captain's account of his agreement, and the time it was entered into, this arrangement, if made at all with him, was so made a month previous to the signing of the articles by the men.  To this evidence, therefore, as corroborating the captain's statement, I am not inclined to attach much weight.

   The owner denies that he ever undertook to discharge the captain in the Australian Colonies; on the contrary, he swears that when asked he refused to promise to discharge him there, and that he never authorised the captain to insert or allow the insertion of such a clause, or of any fixed period of six months in the articles.  Now the articles are foreign-going and not coasting articles, and it certainly does appear strange that the owner, if he contemplated going into the China Seas, seeking, as he says, should have allowed the insertion of so short a period.  But the captain says that his owner did not contemplate, at the time the articles were made out, going further than Singapore.  If he told the captain this, it is odd that the captain did not insert Singapore as one of the contemplated destinations of the ship; but the description of the voyage is left open - the ship is to go wherever employment offers. 

   I must take it, therefore, that the ship was intended to go wherever employment offered, but that the captain agreed with the crew that it was not to exceed six months, and that they were to be discharged in the Australian Colonies.  At the same time, as he does so contract with the crew, he inserts, or gets inserted, by the shipping officer, a clause relative to himself, and although this clause, if it was inserted without the knowledge of the owner, is not binding on him, or is evidence against him, it is evidence as against the captain of the terms which he considered himself engaged.  Now, what are the terms?  They are to the following effect:-

This agreement shall last for six months so far as the master is concerned - or, in case the master leaves before six months, he is to have six months' wages and passage money to Adelaide."

   The grammatical construction of this sentence only allows of one interpretation, viz., that if the captain leaves before six months he is to have his wages for six months and passage money to Australia.  This is the distinction which the captain himself draws between the agreement made with the crew and with himself - if thee crew are discharged before six months, they only get the wages for the time for which they may have actually served; but if the captain is discharged before the expiration of that time, he is to receive his full six months' wages, and a passage home.  The owner agrees with this interpretation, and admits that it embodies the understanding that he had with the captain; but he declines to admit either that it bears the interpretation that in any event the captain is to have a passage home, or that he contracted to give him passage money to take him  home.

   Here. Then, the owner agrees with the memorandum which the captain himself has endorsed on the articles, and the only way by which the captain can escape from the inevitable conclusion that his owner and himself understood the contract in the same sense, is by saying that a different interpretation must be given to his own memorandum.  The fact is, that the captain in seeking behind the owner's back to create evidence in his own favour, over-reached his aim, and has thereby put himself out of Court.

   I pass no opinion as to who is probably right or probably wrong, or what ought or ought not to be done in a spirit of fairness and liberality.  The case is one of oath against oath - both witnesses are entoleted to the same amount of credence; but it is the captain's business as plaintiff to make out his own case clearly, and he has not done so to my satisfaction; as it is only by straining the interpretation of his own memorandum, and thus making it mean what it does not say, while it does agree with what the defendant says, that can give any effect or weight to his viva voce evidence. 

   The verdict will stand for 12/6 over and above the sum paid into Court; #but as I am of opinion that there must be some other cause for this litigation than appears on the face of the proceedings, I shall exercise the discretion I possess as to costs, and direct each party to pay his own costs.

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