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Colonial Cases

Esau v. Steele, 1886

[shipping, wages]

Esau v. Steele

Civil Summary Court, Shanghai
Jamieson AAJ, 9 August 1886
Source: North China Herald, 13 August 1886

9th August.
Before George Jamieson, Esq., Acting Assistant Judge.
  S. A. STEELE, Master of the British barque Minnie Burrell, appeared in answer to a summons, taken out by a Japanese seaman whose name appeared as "Joe Esau," requiring him to show cause why the contract entered into between the plaintiff as an able seaman and himself as master of the Minnie Burrell, should not be rescinded in the terms of Section 8 of the 43rd and 44th Vic., cap 10.
  Similar summonses had been applied for by three other Japanese sailors, and the suit was heard as a test case for the four.
  His Honour, addressing the defendant, said - This summons that the plaintiff has taken out is rather unusual.  I will read the Section of the Act of Parliament on which it is based.  It was passed so recently as 1881.
  His Honour then read a portion of the section, and said - It merely amounts to this - that if I find here that the contract has been entered into under circumstances which appear to me to make it inequitable to insist on its performance, I can determine it.  That is the point of it.  Usually, of course, it is not my business to interfere in a matter of contract.  If a master and servant enter into a contract with their eyes open and know what they are doing, of course they are bound to stick to it; but if the contract has been entered into under circumstances which appear to me inequitable - to bear hardly on one of the parties - I may direct it to be terminated, and settle the matter equitably.  Do you understand?
  Defendant - No, Sir; I am ignorant altogether in the case - I understand what you say; but I do not understand the case at all.
  The Plaintiff was then examined through an interpreter.
  Interpreter - The plaintiff wants the captain o discharge him here; but the Captain says nothing, and therefore he has gone to the Shipping Office and a sked to be discharged.  He had heard that there was an advance paid; but he never received it.
  His Honour - Will you ask him how he was engaged at New York?
  Interpreter - He was told by a boarding master in New York that this barque, the Minnie Burrell, required seamen; therefore he went to the English Consul in New York.  He did not know what the wages were to be till he went there; but the Consul told him there was no advance, and the wages were $11, or sometimes $12.
  Who made the bargain with him about the wages? - It was told him at the Consul's Office.  The Consul said there was no advance; but the Wages would be $11, or sometimes $12, because it was in Pounds, and there was a little difference in exchange.
  The wages were 2 Pounds 5s. a month? - Yes.
  Does he understand English? - A little.
  Was he told where he was to be discharged? - Yes. The vessel was going to Shanghai, and afterwards, when it returned to New York, he was to be discharged.
  Why does he want to be discharged now? - He wants to be discharged in Shanghai because he was a little ill during the voyage.  For about eight days he was not able to work.
  He wants to be discharged because he is ill? - Yes.
  Any other reason? - One of his shipmates was discharged the other day, and he heard from him that there was an advance.  He was astonished a great deal, as he had never received any advance.
  He is down on the Articles to work for 78 days for a shilling a month.  Did he know that? Did he agree to that? - He was never told that; he never agreed to it.
  He never knew all the voyage that this one shilling a month was in the Articles? - No.
  And that is the ground on which he wishes to be discharged? - Yes.
  Is he well enough placed with the ship? He does not want to go on board again.
  His Honour (to defendant) - Well, you see the main point is the wages.  He says he never heard of the shilling a month wages.  Do you know about it?
  Defendant - Well, your Honour, when you are ready for me I will say a word.
  His Honour - I am ready now.
  Defendant - Oh, I thought I had to go into the box.  I am ignorant altogether of what I am brought here for.  The Consul certifies that this man signed the articles and fully understood tem.
  Hs Honour - Does he certify that?
  Defendant - I think he does, on the back of the Articles.  I think I am entitled to a fee for coming here to talk about the consul in New York.  I am ignorant of everything else in the mater.
  His Honour (after examining the Articles) - Yes, I see there is the Consul's signature all right; but this man says the contrary, you see.  He says he never understood it.
  Defendant - Then I suppose the Consul is the right man to go into the matter with.
  His Honour - I do not know that the consul's certificate is absolutely conclusive, if the man makes out a sufficiently strong case. It may have been given under a misapprehension.  Don't you know anything about the agreement at all? Didn't you engage this man?
  Defendant - No. Sir, I didn't.
  His Honour - You don't know what the agreement was?
  Defendant - No, Sir; nothing more than what the consul certifies.
  His Honour (to the Interpreter) - Has he any evidence about the agreement? - There were other Japanese in the same position.
  Defendant - Well, Sir, excuse me.  I was just summoned to meet Joe Esau.  I have witnesses on board; but I have none here today.
  His Honour - If he plaintiff has any witnesses I must hear then first.  In order to settle this case I will take the evidence of the whole crew if necessary.  Are there any more Japanese who can give evidence about this case?
  Chekuda Gohi was then examined through the interpreter.  He said he was shipped before the consul at the same time as the plaintiff, and plaintiff's account of what had taken place was correct.  Witness was told by a boarding master that the Minnie Burrell wanted seamen, and he went to the office of the British Consul, where he was told that there was no advance, but the wages were 2 pounds 5s a month. H believed that the man who told them this was the Consul; but as he had never seen the Consul before he could not be certain.  The man was sitting at a desk in the Shipping office.  He told them that the months' wages were 2 Pounds 5s. , that the vessel was going to Shanghai, and that twenty-four months was the term.  Witness was to be discharged finally when the ship returned to America,
  His Honour - Not in England? I see the Articles say England.
  Interpreter - He understood it was somewhere in America.
  His Honour - Has he ever been to England?
  Interpreter - Never.
  His Honour - These Articles, as a matter of fact, say that he is to be discharged in England.
  Interpreter - He never heard that. He knows nothing about England.  He was told that when the ship returned to America he was to be discharged.
  Was anything said about an advance? - He was told clearly that there was no advance.
  Was he ever told that he was shipping for 1s. a month for 78 days? - No, he was never told that.
  Oto Beri, another Japanese, was then called, and gave evidence to almost precisely the same effect.
  The Defendant intimated that he had no questions to put to the plaintiff or either of his witnesses.
  His Honour (to the defendant) - What have you got to say? Their story is that they were to get 2 Pounds 5d. a month, and that they were to be discharged in America.  They have been very much shocked to find that their wages are 1s. a month for 78 days, and they wish to have the matter settled, and they do not want to go to England.  Are you ready to discharge them?
  Defendant - No, Sir.
  His Honour - Why?
  Defendant - Well, I dare not, according to the Articles.
  His Honour - If the Consul sanctions it you can.
  Defendant - That is a mutual agreement between the consul, the men and the master.
  His Honour - And you won't agree?
  Defendant - I do not wish to discharge them.
  Hs Honour - I think they should be discharged.  I do not think you should insist on their serving all round the world and being discharged in a place they never heard of.
  Defendant - Two of them speak very good English, and understand it as well as I do; and of course all seamen know that in New York there is no advance. They all know that before they ship.
  His Honour - What is the reason of the 1s. a month?
  Defendant - Well, that is it.  We are not allowed to pay an advance, so we put the wages down at so much a month.
  His Honour - Well, you are not allowed to put down 1s. a month behind their backs.
  Defendant - It is not done behind their backs.
  His Honour - I am inclined to go further than that.  I have here an Act which I believe is the last American Act on the subject.  According to this Act nothing in the nature of an advance of wages not actually earned can be made, nor can you deduct it.
  Defendant - There is nothing to deduct.  They sign for a shilling a month for so long a time.
 Hs Honor - That is such a very palpable evasion of the Act that the law would, I should think, have no difficulty in setting it aside.
  Defendant - That is for themselves.  We are not allowed to pay an advance, and the Consul certified that it is agreed that we shall pay them 1s. a month for so many days, and no advance at all.
  His Honour - Well, in this case I shall hold that the agreement was never explained to the men.
  Defendant - Well, Sir, that will be for the consul at New York.  He has certified to that.
  His Honour - You will have to pay them their wages.  It is desirable that their agreement should terminate here, and I direct that it be terminated - that you discharge the men and pay then at the rate of 2 pounds 5s. a month from the time of their joining the ship.
  Defendant - According to that, we have no contract?
  His Honour - No.
  Defendant - Then is not the Consul responsible?  He certified that they signed the Articles and fully understood them.
  His Honour - I am not obliged to take the consul's word for it.
  Defendant - If his word is not good what are we to do?
  His Honour - I am going no further than this particular case.  I say in this particular case they have not had the Articles explained to them.
  Defendant - But does not the Consul certify that they had?
  His Honour - Notwithstanding that, I hold that they have not been; and I think it is desirable that the men should be discharged.
  Defendant - I do not understand it at all.  If the Consul's word is not good what safeguard have we?  I thought I was coming here this morning to speak on behalf of the Consul.  They are not substitutes; they are men who have signed before the Consul.  I do not know what steps to taker. I do not understand it.
  Hs Honour - The only step you have to take is to obey my decision and pay them off.
  Defendant - I dare not, under the Articles.
  His Honour - Under the Act of 1881 any Court may set aside a contract, although the contract may be good.  Now I am clearly of opinion that it is very undesirable that these Japanese should be taken away from the East - where they are more or less at home - to be discharged, as you propose  discharge them, in the United Kingdom.
  Defendant - Well, there are three out of the four who left my ship eight days ago and have not been back since.
  His Honour - Well, that doesn't matter.  Of course you will not pay them any wages they have not earned.  You will pay them up to the time they left.
  Defendant - Can they leave when they like?
  Hs Honour - I am not here to be cross-examined.  If you had brought them up as deserters I should probably have held that they were justified; I do not know. They have not been brought up, and I do not know.  Under the circumstances, as they are Japanese, I think it is desirable in the interests of all parties that the contract should be put an end to; therefore I direct that it be put an end to, and that they be paid off ethout any deduction for advance.
  Defendant - Well, you will have to get that from the Consul at New York.  He certified to it, and you will have to get it from him.
  His Honour - Of course only one man has brought the suit but I understand the three others are on the same footing.
  Defendant - Yes, and I have eight or nine on board on the same footing.  They all signed the articles the same day.
His Honor - Well, I only speak of these men that I have evidence for.
  Defendant - You wish me to pay them off, and to pay them at the rate of 2 Pounds 5s. from the time they shipped? Well, Si, I want to see the Consul General.  He is the man I am supposed to go before here, I suppose; I do not know much about it.  The Consul at New York certified that they knew what they were signing, and if this is right Articles ae no good at all.
 His Honour - An agreement is necessarily bad which is founded on fraud, or anything in the nature of fraud.  You can go behind any agreement in the world under these circumstances.  Well, you understand that I have made an order now that you discharge this man and pay him his wages from the date of the Articles without any deduction for advance.
  Defendant - I suppose the ship is good. I suppose they will take the ship if I refuse to pay.  I have got my family here but I will go home overland and leave the ship here. I cannot pay it myself; I dare not do it. If the ship is good for it, you can take the ship.
  His Honor - Of course it is against the ship. There is no question of personal liability on your part.
  Defendant -As for myself, I shall not pay it.  If you take the ship, as far as she goes you can have her.


Source: North China Herald, 27 August 1886

Shanghai, 21st August 1886
Before George Jamieson, Esq., Acting Assistant judge.
  Mr. Wilkinson applied for a supplementary order in the case of the four Japanese seamen against the Minnie Burrell.  His Honour had made an order that the men should be paid off, but he had fixed no time in which the Captain should render an account of wages and pay the men off.
  His Honour (to Capt. Steele, master of the Minnie Burrell) - Have you paid off the men and discharged them?
  Capt. Steele - No, Sir; not having the gentlemen's cards I did not know where they lived.
  His Honour - You could have paid them off in the Shipping Office.
  CAPT. Steele - I have been several times to the Shipping Office, but I have not seen them there.
  His Honour - It is no use being obstinate.  You will only incur further expense for yourself and owners if you give trouble.  I put in no date because I took it for granted that you would comply with the order.  You have not done so, and I shall have to make a supplementary order.  You don't suppose the court will make orders and not carry them out?
  Capt. Steele - But how could I pay them off when I couldn't find them?
  His Honour - You could have gone to the Shipping Office.
  Mr. Wilkinson asked his Honor to direct the captain to ender an account by three o'clock that afternoon, and to pay the men off at 11 o'clock on the following Monday.
  His Hoour assented to this.
  Mr. Wilkinson said the men had clothes on board.
  CAPT. Steele said he knew nothing about the clothes, but if they were on board they would be given up.
  Mr. Wilkinson said if the Captain consented to carry out the directions of the Court it would not be necessary to make a supplementary order, which would involve him in additional expense.  He, however, applied for the costs of this hearing.  The Court fees would be $6 in each case, and the ordinary fee for attendance of counsel on an application $10 in each case.  He said it was not only his own attendance in Court, but the men had been put to considerable expense in other ways by the captain's neglect to comply with the order of the Court.
  His Honour - Well, I really don't see why the men should have to pay this.  If the Captain had gone to the office and paid them off, these costs would never have been incurred.  It simply arises from his having declared that he would not carry out the order of the Court, and from his having shown no sign of any intention to carry it out.  If costs had been asked for in the first instance, I should probably not have allowed them, because it was quite a proper case for the captain to defend, but these expenses are necessitated simply by the Captain's obstinacy. (To Mr. Wilkinson) - The ten dollars includes the six dollars Court fees?
  Mr. Wilkinson - Oh no; it is in addition.  It is not simply my appearing here; they have been put to a great deal of expense, and I mention that as a reasonable sm.
His Honour - No, I will give you $10- including the costs of the court.
  Mr. Wilkinson - That is $10?
  Hs Honour - Yes.
  M. Wilkinson said if the Captain agreed to pay that $40 he would save himself from the costs of any further proceedings.
  His Honour - yes; it is ten dollars a man which you might entirely have avoided.
  Mr. Wilkinson (to Capt. Steele) - You don't oppose that?
  Capt. Steele - Oh, no Sir. I think it has been quite sufficient now.

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