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Colonial Cases

Daly v. Gunzel, 1878

[shipping, jurisdiction]

Daly v. Gunzel

Mixed Court, Shanghai
Chen and McGowan, 12 September 1878
Source: The North China Herald, 21 September 1878



Shanghai, 12th Sept.

Before the Chinese Magistrate CHEN, and Dr. MCGOWAN, Assessor.

A Mixed Case.

   Captain GUNZEL, Master of the Costa Rica ship Martha, was summoned to appear before the court on the complaint of one of his seamen, named Daly, an American, whom Capt. Gunzel had summarily dismissed.  Costs Rica is a non-treaty power, the commander of the ship is a German, and he shipped the complainant from British Columbia for a voyage to and from China.  It appears that the papers of vessels of non-treaty States, in default of having no Consul, are deposited with the Commissioner of Customs.  On the application of the Court, Mr. Commissioner Hart sent the ship's papers for inspection, and had the summons served by the River Police on the Costa Rica vessel.

   The complainant Daly said he was an able seaman of 15 years' service, that he signed the articles in British Columbia (they were American) for a voyage to China and back.  That no fault was found with him on the voyage, but in getting on board the other morning a few moments late, after being on a short spree, he was not allowed to turn to, the mate, a Norwegian, being determined to rid the vessel of the present crew.  He was sent ashore, and returned the next day and commenced work, but was cast adrift.  Defendant  said he would appeal to the American consul, when the Captain said he was his own Consul.  Complainant petitioned, therefore, to have the contract fulfilled on the part of the captain, that is, that he be reinstated or paid off and his passage paid to the United States.

   Captain GUNZEL said that he would not consent to receive the man on any terms.  He would cause insubordination among the curfew, and he was worse than useless.

   Mr. C. SHMIDT addressed the court in Chinese in  vindication of the proceedings of the captain.

   The COURT announced that it was obvious that citizens representing non-treaty powers could not be allowed to do with impunity what was interdicted to citizens of treaty powers.  The casting a drift of seamen at Shanghai was hurtful alike to Chinese and foreign interests, and as extraterritorial immunities do not pertain to non-treaty states, the duty d evolved on this Court to require the fulfilment of the contract which the defendant made with plaintiff, and to disallow the discharge of seamen without the usual guarantees for their not becoming a charge on the public. 

   It was accordingly decided that Dayl should be paid off, also the cost of his maintenance for several  days at the Sailors' Home and a certain sum of money paid for his passage to San Francisco.

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