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Colonial Cases

Ellis v. Tibbetts, 1886

[shipping, wages]

Ellis v. Tibbetts
Somna v. Tibbetts

United States Consular Court, Shanghai
Kennedy, 15 October 1886
Source: North China Herald, 20 October 1886

Shanghai, 15th October 1886
Before General R. Kennedy, U.S. Consul-General.
  This was a claim for $294.75, wages, brought by the plaintiff as First Mate of the four-masted schooner Haroldine, against the defendant as Master of this schooner and agent for the owners. The defendant, in his answer to the claim, stated that having found the plaintiff incompetent to perform the duties of First Mate, he had disrated him and sent him to the Second Mate's room.  He expressed his readiness to pay to the plaintiff the sum of $187.08, being  wages at the rate of $35 per month, with deductions for clothes, etc., supplied to the plaintiff.
  The ship's Articles were put in evidence, from which it appeared that the plaintiff had been shipped at $50 a month.
.   .   .   
From the evidence I am satisfied that the defendant had sufficient ground to disrate the plaintiff, and acted discreetly and for the interest of his employers.  But when shall the reduction of pay begin?  I hold that it begins from the date of the disrating; for until then the defendant had permitted the plaintiff to continue as First Mate, and while he had cause of complaint, and inefficiency was apparent to him, yet, so to speak, he condoned it.  
  The sum of $50.75 is admitted by plaintiff as received, consequently this sum will be deducted from the amount due plaintiff; also any property lost or destroyed on ship-board through carlessness or incompetency of the plaintiff shall be accounted for by him.  This I find to be $10.
  Seamen are regarded as specially under the protection of the courts, and the benefit of every doubt in the construction of a contract may be given them; nor are they held in strict rules of evidence at common law in proving their contracts.  I will not on the other hand impose all the costs on the defendant, representing the owners, but adjudge the plaintiff, being in fault himself, to pay part thereof.  On hearing the pleadings and evidence in this Cause it is ordered and adjudged that the defendant do pay plaintiff the sum of $232.25; that $15 costs be taxed against plaintiff, and balance against defendant.
.  .  .  
 In his case the plaintiff, lately Second Mate of the schooner Haroldine, sued the Captain for $155.55, made up as follows:
.  .  .  
The Defendant, further questioned by his Honour, said he had twice found Somna asleep on duty; but he attributed Somna's lack of interest in his work to the fact of his having a man like Ellis over him.  He believed if he had turned Ellis into the forecastle the first week, Somna would have done very well.  He admitted that he had done an injustice to Somna in distrating him, as the man would have done very well with a proper First Mate over him.
His Honour - Well, I am satisfied from the defendant's own testimony that judgment in this case should be given in favour of the plaintiff.  It is ordered that Somna be paid $155.55 and the costs of this case.
  The amount was subsequently altered, with the consent of the plaintiff, to $140.55, the sum of $15 being paid to a man who had acted as a substitute for the plaintiff.

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