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Colonial Cases

Ah-Tai v. Carozzi, 1885

[shipping, wages]


Ah-Tai v. Carozzi


Source: North China Herald, 28 August 1885


AH-TAI v. CAROZZI.
THE case of Ah-tai v. Carozzi reported by us elsewhere aggregates certain points of interest to ship-owners and mariners.  The plaintiff was 3rd engineer of the British blockade runner Ping-on, of which the defendant was master. The claim was for three months' wages at $39 per month from the date of the ship's seizure. The decision proceeded on the evidence of the defendant to the effect that the plaintiff with eight or nine firemen had voluntarily enlisted with the French, agreeing verbally and in general terms to take the French rate of pay.  No specific sum was named.  The 2nd engineer, a foreigner, entered into a similar contract, and has made no claim against the ship; but he was not present when the plaintiff agreed to join the French.  The implication of course was that by this new contract, sanctioned as it was by the defendant as Master of the Ping-on, the plaintiff must be taken to have cancelled his articles and consented to forego all further claims against the Ping-on.
  The plaintiff's version of the transaction was to the effect that in concluding to work for the French he was acting in fear of incurring their displeasure if he refused; and considering that he was a prisoner and must have known that his captors could, if they chose, put him to hard labour, without wage or gratuity that was certainly room for the plea of duress.  
  If the dispute had been between ordinary persons the question would have been simply one of the comparative value of the testimony.  But the plaintiff was a seaman (a term which for some purposes as this includes all officers other than the master), and a seaman by common consent is not a common person.  His eccentricity indeed is so well established that Parliament has especially intervened to protect him against his own vagaries.  The Legislature has been very jealous in defending his rights, and safeguarding his contracts.  The Merchant Shipping Act requires considerable formality both in the hiring and the discharge of seamen. Far be it from us to avow the preposterous opinion that the marine engineers are considered mentally, like the coolies, a feeble folk, but we apprehend they are entitled to ask for the advantage of the law in their favour.  Of course, under seizure, at the Pescadores, it was impossible to comply with all legal formality, but we should hardly imagine that the fact should absolve the Captain from performing those that he could.  We believe for instance, that the Statute requires in every contract of hiring that the amount of the seamen's wages should be positively stated, and on every discharge that he should sign a release to the ship of all claims.  We conceive therefore that the captain of the Ping-on should in strictness have ascertained and informed the plaintiff and the other men of the exact amount they were to receive as wages from the French in the case of a contract upon which he meant subsequently to rely as a cancellation of the articles, and even have pointed out to them the disadvantage of withdrawing from the articles and resigning all future claims on the Ping-on in consideration of wages only about one tenth in value of what they were earning on the Ping-on; and finally, that if they still persisted he ought to have taken from each of them a release to the ship in writing.
  Failing such corroborative evidence it seems doubtful whether the upholding as binding of an unsatisfactory and verbal contract of hiring, and a merely implied, and not admitted, discharge from a British ship, was in accordance with the letter or policy of British law relating to seamen.  The accuracy of the plaintiff's statement that he had received from the French only $40 to divide between himself and some eight or nine firemen was impugned, but it did not appear that any steps had been taken to investigate the fact, through the French Consulate or otherwise.  In answer to the question what would have been the rights of the plaintiff if he had not been held to have been discharged from the Ping-on we of course do not presume to offer any opinion.  The two following extracts from Maclachlan on the Law of Merchant Shipping may perhaps interest our readers and serve to mark out one of the two points of distinction.
  "If any - temporary - detention of a ship happens during the voyage, by reason of superior force .  .  .   the full wages are due, not only for the voyage, but for the time of detention also."
  "If the ship is arrested during the voyage for .  .  .  illegality of purpose on the part of the owners so that the voyage is lost, the seamen - are entitled if hired by the month, to their wages up to the time of seizure, and any expenses which they are necessarily put to in consequence."
  It seems that those who engage themselves knowingly in venturesome voyages should take care to have their contracts specially prepared so as to guard against any unpleasant, and probable contingency - for instance, loss of wages.

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