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Colonial Cases

MacFarlane v. Patchings, 1876


MacFarlane v. Patchings

Consular Court, Shanghai
Handiside Tapp, 16 August 1876
Source: The North China Herald, 19 August 1876



Shanghai, August 16th

Before W. HANDISIDE TAPP, Esq., Registrar.


   This was a case which was decided under the 173rd section of the Merchant Shipping Act, 1874, having been referred to Mr. Tapp by consent of both parties.  Plaintiff was chief officer, and defendant is master of the British brig Elliotts.  The case was one of dispute with reference to the plaintiff's discharge from that vessel, the point to determine being whether a clause in the articles was binding or not so far as it affected the plaintiff, and to settle the terms of his discharge from the ship.  The whole facts of the case are included in the Registrar's


    With reference to a dispute which has arisen between the master (Patchings) and the mate (Macfarlane) of the British brig Elliotts, respecting the terms on which Macfarlane is to be discharged from the ship, a discharger having already been agreed to, I am of opinion, after carefully looking g into the case:-

1st. That Macfarlane (when he signed the articles of agreement at Sydney, which contain a clause "that the curfew are to be paid off six months after the vessel's arrival in Shanghai"), was led to believe by the owner that the said clause did not and should not apply to him.  This is borne out by the letter of instructions the master received from the owners, which is as follows:-

We have given the mate our word that the clause in the articles that specified that the crew are to be paid off six months after her arrival at Shanghai, will not apply to him; therefore if he and you can "hit" it, do not turn him ashore.  Mind you, we do not dictate to you, but hew would not sign except we pledged our word that we should #mention this to you."

2nd. That the master also seems to have inferred that the clause referred to did not bind the mate, by making an entry in the log book to the same effect as the owners' instructions.

3rd. - That the master did not ship the mate, therefore he cannot be aware of what took place at the time of shipment.  He was shipped by the owner.

4th. - That in any case the articles of agreement are the only legal criterion of the compact entered into.  At the same time, the clause contained therein could only be carried into effect at this port by the consent of H.M.'s Consul.

5th. - That the consent of the consul could only be obtained by a guarantee being handed into the Consulate that the mate would not become an expense to H.M.'s Government, or by the master paying his passage back to Australia and his wages to date of discharge at Shanghai.

   I therefore decide that the mate is entitles forthwith to his wages up to the 15th inst., and to the sum of $100 as compensation for his discharge at this port; or, in lieu of compensation, a 2nd Class passage to Sydney, the master to have the option of either alternative.

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