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Colonial Cases

Japanese Sailors v. Steele, 1886

[shipping, wages]

Japanese Sailors v. Steele

Civil Summary Court, Shanghai
Jamieson, 17 August 1886
Source: North China Herald, 20 August 1886

LAW REPORTS.
H.B.M.'s CIVIL SUMMARY COURT.
Shanghai, 17th August 1886
Before George Jamieson, Esq., Acting Assistant judge.
  THE NEW YORK SHIPPING SYSTEM.
  S. A. Steele, master of the British ship Minnie Burrell, appeared in answer to summonses taken out by three Japanese sailors belonging to that ship, requiring him to show cause why the contracts entered into between them as able seamen and the defendant as master of the said ship should not be rescinded in terms of Section 8 of the 43rd and 44th Vic., Cap. 18.
  Mr. Wainewright, in the absence of Mr. H. S. Wilkinson through illness, appeared to the plaintiffs, and Mr. Drummond for the defence.
  Mr. Wainewright said he was informed that the summonses were in the same form as the one against the same defendant heard by his Honour on the 9th of this month.
  Mr. Drummond pointed out that in the summons he defendant was described as "S. A. Steele, of Shanghai," and that afterwards the words the words "the said ship" were used, no ship having been mentioned.
  Mr. Wainewright said he had nothing to do with taking out the summons, and by permission of his Honour the wording was amended.
  Mr. Wainewright reminded his Honour that the evidence of the three plaintiffs was taken in the previous case, heard on the 8th inst.
  His Honour presumed that they would have to begin de novo.
  Mr. Wainewright - My learned friend, I understand, would not object to the evidence in the previous case being used here.  I have only a newspaper report; it your Honour has full notes -
  His Honour - My notes are probably not so full as that report.
  Mr. Wainewright - I believe all these men were called as witnesses in the case the other day, and that they all said they believed that they were shipping at 2 Pounds 5s, a month, and that they were  going to be discharged in the United States.
  His Honour - Yes, that is so.
  Mr. Drummond - Could not the copy of the paper be put in now, as a record of the case?
  His Honour - I think it is pretty correct.  I have read it over, and I do not think there is anything to object to in it. There is nothing essential omitted.
  Mr. Drummond - Yes.  I am quite willing to take the evidence as it stands.  This is a question of law.  If that is taken as a satisfactory report -
  His Honour - I think it is.  My impression is that it is fairly correct.
  It was accordingly decided to take the report of the case of "Joe Esau," v. G. A. Steele, which appeared in the N-C. Daily News of the 1-th inst., as a record in this case.
  Mr. Wainewright said the only other evidence he had to call was that of an officer of the U.S. Consulate-General, to prove the law bearing on this case so far as the U.S. law applied.
  John J. Coffey, U.S. Deputy Consul-General, was then called and sworn.  He said he was, and had been for nearly twelve years, in charge of the Shipping Department at the U.S. Consulate-General.
  Mr. Wainewright - Are you acquainted with the shipping law of the United States as it at present stands?
  Witness - As far as that pamphlet which you hold in your hand goes, I am.  That is a copy of a transcript which we received from the Department of State.  It is an Act of Congress approved on the 26th June, 1884.
  Is that now the law of the United States? -It is, so far as I can say at present.
  You have no reason to believe it has been altered? - Not that I know of.
  And you act upon it here, so far as it is applicable? - Certainly.
  The pamphlet referred to was put in by Mr. Wainewright as a record.
  Mr. Wainwright (holding up a ponderous tome) - Do you recognize that as a copy of the Revised Statutes of the United States?
  Witness - I do.
  Will you look at Section 4,532.  So far as you know, is that Section still in force? - No Sir.
  What is it repealed by? - By Section 10 - in that pamphlet.
  Mr. Wainewright - I do not think you will find that Section 10 repeals anything.  It is an additional provision.  Of course I am aware that no advance can be made; but anything that passes between the captain and the seamen about wages has to be put in the contract.  So far it has not been repealed?
  Witness - The wages must be stated in the ship's Articles, distinctly.
  Mr. Wainewright -Yes, and any deduction from the wages must be stated.  However, you think it has been repealed?
  Witness - It must be, by Section 10.
  Mr. Wainewright - Section 10 does not in any actual terms repeal it.  It repeals nothing; it is an additional provision. You will observe that most of the sections before that actually repeal or vary the Revised Statutes; but Section 10 does not.  Look at Section 4,533.  That provides, does it not, that if any advance is made it shall have no effect, that the seamen shall still be entitled to their full wages.  Do you consider that repealed?
  Witness - I think so.  In my opinion, certainly.
  The witness then read Section 30 of the Act of Congress of 1884, to the effect that all previous enactments contrary to the provisions of that Act were thereby repealed.
  Mr. Wainewright - And you consider that that repeals - Well, you come here to state the law, and I must not argue with you.
  Witness - Pardon me, I did not come here to state the law; I came to give evidence as to what I believe the law to be.
  Mr. Wainewright  (to His Honour) -  These sections ae not inconsistent with the Act contained in this pamphlet.  However, it does not matter, because they are really embodied in the pamphlet.
  Hs Honour - And that applies to foreign as well as United States vessels?
  Mr. Wainewright - It says so distinctly - "This section shall apply as well to foreign vessels as to vessels of the United States."
  (Section 3o of the Act of Congress of 1883 referred to is as follows:-
  Sec. 10. That it shall be, and is hereby, made unlawful in any case to pay any seaman wages before leaving the port at which such seaman may be engaged in advance of the time when he has actually earned the same, or to pay such advance wages to any other person, or to pay any person, other than an officer authorized by act of Congress to collect fees for such service, and remuneration for the shipment of seamen.  Any person paying such advance wages or such remuneration shall be deemed guilty of a misdemeanour, and, upon conviction shall be punished by a fine not less than four times the amount of the wages so advanced or remuneration so paid, and may also be imprisoned for a period not exceeding six months, at the discretion of the court.  The payment of such advance wages or remuneration shall in no case, except as herein provided, absolve the vessel, or the master or owner thereof, from full payment of wages after the same shall have been actually earned, and shall be no defence to a libel, suit, or action for the recovery of such wages:
  Provided. That this section shall not apply to whaling vessels:
And provided further: That it shall be lawful for any seaman to stipulate in his shipping agreement for an allotment of any portion of the wages which he may earn to his wife, mother, or other relative, but to no other person or corporation.  And any person who shall falsely claim such relationship to any seaman in order to obtain wages so allotted shall, for every such offence, be punishable by a fine not exceeding five hundred dollars, or imprisonment not exceeding six months, at the discretion of the Court.
  This Section shall apply as well to foreign vessels as well to vessels of the United States; and any foreign vessel the master, owner, consignee or agent of which has violated this section, or induced or connived at its violation, shall be refused a clearance from any port of the United States."
  Cross-examined by Mr. Drummond, the Witness said the pamphlet produced was not the original one received from the Department of State; he had not been able to find the original, though h believed it was on file at the Consulate-General.  The copy produced was a reprint printed at the Shanghai Courier office, and compared with the original by himself and General Stahel.  General Sahel had asked him to have a number of copies printed for the information of American ship-masters, and for use in the consular offices.  Despatches had been received stating that this Act had been passed by Congress, but he had not brought these despatches with him to the Court.
  His Honour said it was the witness's business to be acquainted with the law and he had stated that this was the law.
  Mr. Drummond said if it had been forwarded from the State Department with a despatch stating that it was the law, that was sufficient.  He did not want to raise any technical objection; but he wanted it to be clearly understood that it was the law.
  His Honour thought the witness's evidence was sufficient to show that it was the law.
  Mr. Wainewright said that was all the fresh evidence he had to produce.  He relied on Section 8 of the 43th and 44th Vic., Cap. 16, so far as the powers of this Court went, and he thought this was a case in which the court might fairly exercise the powers given to it by that Section and dissolve the contract between the Master of the Minnie Burrell and these three Japanese sailors, on the ground that they had been misled, and that in their engagement, or in connection with it, there had been a clear violation of the law of the place where they were shipped.  According to their unanimous evidence they had not understood that there was going to be any deduction whatever made from the ages of 2 Pounds 5s. a month; they had no idea of this shilling a month for 78 days, and they all believed that they were going to be discharged in New York.  
  Of course the Articles varied materially from that; but these men were all more or less ignorant of the English ;anguage, and it was very easy to understand that they might have heard those Articles read - if they did hear them read - without grasping the sense of them. They had evidently been taken in, whether purposely or not, and on this ground he asked his Honour to exercise the jurisdiction he had, and to declare the contract dissolved, and the men entitled to their full wages, without this deduction of 5 Pounds 14s. or 5 Pounds 15s.
  Mr. Drummond said he proposed first to ask Mr. Vice-Consul Ford to go into the witness box.
  C. M. Ford was accordingly called and sworn.
  Mr. Drummond - You are a Consular officer in charge of the shipping office?
  Witness - Yes.
  You have seen the Articles of the Minnie Burell, have you not? - Yes.
  Can you tell me whether Charles Uhme, a Japanese sailor, has been paid off before you? - Yes.
  The rate of wages was one shilling a day for 78 days? - Yes' but he objected in the first instance, but in order to get his discharge he agreed.  It was he who first raised the question.
  Was his mentioned to the Master, Captain Steele? - Certainly. He came back two days afterwards and said he was so anxious to leave that he would take his discharge on those wages.
  Mr. Wainewright said he had no questions to put to the witness.
  Edward Strong, a negro sailor, was then called and sworn.  He said he was an able seaman on board the Minnie Burrell, and had shipped in New Yorll.  He signed the Articles in the British Consul's Office there.  Two of the three complainants were present.  The real names of these men were so funny that he could not remember them; they were called "Bill" and "Jim" on board.  The articles were read over to them before they signed tem.  There were to be [?] Pounds 5s. a month, and for the first 78 days a shilling a month.  Witness understood and agreed to this; but he did not know whether the two Japanese understood it or not.  They were all standing together.  He had heard the Japanese speak a little English, but not much.  The Articles read to them stated that they were going to Shanghai, that they signed for 24 months, and that the wages were 2 Pounds 5s. a month, and for the first 78 days a shilling a month.  He believed it was the Consul's clerk who read the Articles to them; after reading hem he said to them, "Now boys, you must behave yourselves m board the ship."  The Articles were read to them again on board by the Captain after they got to sea, the Captain asking each one his name, and where he belonged to.  One of the three plaintiffs had come on board in place of another man, and is name was not in the Articles.  The Captain asked this mam, who was called "Say" n board, what his real name was, and the man did not answer, and the Captain said, "Why don't you tell me your name? I don't want to kill you, or eat you."
  Mr. Drummond pointed out that the name of this man "Say," who had shipped as a substitute, was at the end, and was not initialed by the Acting Vice-Consul at New York, as the others were.
  The Witness, further examined, said the Captain explained the Articles to them saying "You signed in New York for 2 Pounds 5s. a month, and you agreed for the first wo days for a shilling a month." The men all heard this, and no objection was made to it, either then or previously, before the Consul.  This was the first he had heard of any objection to it.  According to the Articles they were to be discharged in the United Kingdom or Canada.
  Mr. Drummond - You mean in England?
  Witness - Yes.
  Mr. Drummond - According to the agreement you were to be discharged in England?
  Witness - Yes. - Continuing, he said he could not say whether the other men understood this, because he was paying attention to his own business; but they were all standing together.  They were told this, both at the consul's office and by the Captain, on board.  Witness was quite willing to carry out his engagement - to accept his wages at a shilling a month for the first 78 days, and to be discharged in England.
  Cross-examined by Mr. Wainewright, the witness said he could not say how long it had taken to read the Articles.  The Consul's clerk said "You will sign for 24 months, and the ship is going to Shanghai.  Your wages will be 2 Pounds 5s. a month, and you will get no advance here; but the captain agrees to find you some things, because you are going on a long voyage.  He will pay your board and whatever bills you have, and you agree to take a shilling a month for the first 78 days, and you will be discharged in the United Kingdom or the State f Canada."
  Mr. Wainwright - There is nothing about Canada in the Articles.
  The Witness, further cross-examined, said the Consul's clerk explained the Articles to each man separately.  One stepped up and then the other.  Witness heard him speak to each of them, because they all went into the office together, and all eft together.  The Captain read the whole of the Articles to them on board, from the commencement.  Witness could not read, but he could see that the Captain read it all. The Captain said to witness, "What is your name?" Witness said, "Edward Strong." "You signed at New York?" "Yes." Your wages are 2 Pounds 5s." "Yes."" "You agreed to pay a shilling for the first 78 days." "Yes." Then he said, "Al right. Call the next man," Say was the last man called.
  Mr. Wainewright - Yes, we have heard all that.  Why did you agree to ship getting only one shilling a month for the first 78 days?
Witness - For what they paid for my board, I suppose, Sir.  I was a stranger in the place; and I had to get clothes to go to sea.
  You understood that the Captain was paying your board, and for your clothes? - He had to pay it, before I could leave the place.
  How many weeks' board was it? - One week.
  And he paid for certain clothes and things? - He had to pay for what I wanted.
  What was it? - I am not supposed to tell you what I had.
  Oh, yes you ae.  What had you? - Well, he paid for the place where I ate and slept.
  How much? - The boarding master charged me seven dollars a week/
  What other things? - Some clothes, and a chest.  The boarding master charged, I think, double what it was worth.
  I think that is very probable.  Did the Captain give you any account of what he paid for you? - No, Sir; he never gave me any account.
  Did he tell you what he had paid for you?  No,Sir; he only said, "Your bill is paid."
  His Honour - Did he pay anything else besides the $7?
  Mr. Wainewright - Yes.  He says there were clothes.  He had an outfit.
 Witness - The same boarding master supplied the clothes.
  Mr. Wainewright - Did you get any tobacco?
  Witness - Yes, Sir.
  Did you pay for that yourself? - No; I had no money.
  And you never got any account from the Captain? - No.
  His Honour - What do you call an outfit? Had you no clothes before?
  Witness - No, Sir. My clothes were all lost; I was wrecked before that.  I had nothing.  He found me clothes, and an oilskin.
 That one you have on? - Yes; but it was new then.
  What else?  Boots, and a chest to put my clothes n
  And you understood that it was to pay for all that that you shipped for a shilling a month; you understood that it was an advance? - It was the first time I had been in New York, and I did not understand it.  I wanted to get away, and didn't trouble whether he said a shilling a month or a pound, as long as I got away.
  You were not particular what you got, because you wanted to get away? - Yes.
  Had you any money when you landed in New York? - No, Sir.
  No money due to you? - No, Sir. My wages were paid after the ship was wrecked.
  Where was the ship wrecked? - Mexico.  My wages were paid there.
  What became of you there? - They stole my clothes and everything at the same place.  
  This completed the evidence.
  Mr. Drummond then addressed the Court for the defence.  He read a large number of extracts from the report of the case of Joe Esau v. S. A. Steele, and said the arguments or reasons which appeared to have been given by the court in that case might be right or wrong; but he thought the Court certainly took up a very remarkable position in regard to more than one point.  To begin with, he would touch on the argument that the contract should be rescinded because "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 in the United Kingdom." He ventured to suggest with all due submission that that was a very remarkable argument.  If this maternal care had to be taken of sailors - if they had to be discharged not at the port mentioned in the Articles but at another port, simply because it was nearer their own door-steps - he could not help thinking that on reflexion, anyone who knew anything about shipping would see that it would be impossible to ship sailors for a voyage at all.  A sailor might at any time come forward to be discharged, contrary to the express terms of his agreement, simply because the port in which he happened to be a little nearer his home than the port mentioned in the Articles.  He submitted that it was not a consideration which any Court should entertain for a moment, in doing such a very serious thing as deliberately rescinding a contract certified by a consul.  These Japanese were shipped in New York for a voyage which was to terminate in England; and the fact that they happened to be in a port somewhat near their own country was no reason why they should ask to have their contract deliberately broken.  
  Again, there were some points which showed very pertinently why the contract should be maintained in its integrity.  In the first place, in regard to the question as to whether the contract was fully and carefully explained to the men, there were the conflicting statements of the men themselves, and the certificate of the British Acting Vice-Consul in New York.  Now he thought nothing could be plainer than this - that the men hzad the strongest interest in asking to be discharged and getting their full pay; while it was equally clear that the vice-Consul, who certified that the Articles had been read over and explained to the men, had no interest in the matter whatever.  With regard to the question whether the Consul's statement was a sufficient one or not, he pointed out that in the column in which was stated the amount of each man's wages per calendar month, the wages were given as "one shilling for the first 78 days and 2 Pounds 5s. after;" and after each man's name in the next column appeared the initials of the British Acting Vice-Consul in New York, Mr. Joseph P. Smithers.  Then at the end of these was a certificate which read as follows:-
  "I hereby certify that I have sanctioned the engagement of *   *   *   *   (here follow the names of the men) - upon the terms mentioned in the agreement.  I have ascertained and am satisfied that they fully understand the said agreement, and that they have signed the same in my presence.
Joseph P. Smithers, Acting Vice-Consul."
Then followed the consular stamps in due form.  If this had been a mere printed form, it might have been said that it was signed in a loose and careless way as a mere matter of form; but it was in writing.
  His Honour thought that though the certificate was in writing it as probably copies out of some book of instructions, or was a form the clerk had at his fingers' ends.  He believed it was a prescribed form.
  Mr. Drummond thought not.  He had an English one before him, the terms of which were very different.
  His Honour remarked that there was no evidence to show that the vice-Consul was present at all when the Articles were read.  He might have been upstairs.
  Mr. Drummond said what he had to remark upon that - and indeed upon the treatment of the whole cause - was that the Court found the Vice Consul to be a liar.  There was no escape from that position.
  His Honour - No.  I said the certificate might have been given under a misapprehension.
  Mr. Drummond - What foundation is there for such a presumption?
  His Honour - Prima facie I should accept the certificate - if I had no evidence against it.  But if the certificate is true these men are lying.  And it need not be a lie; it may have been given under a misapprehension.
  Mr. Drummond - If these men are telling the truth, then the Consul has told a lie.
  His Honour - He has certified to what is not the truth, no doubt; but a lie implies a deliberate intention.  It may have been given entirely under a misapprehension.  If it had said a shilling a month for six or twelve months would I have been bound to accept that?
  Mr. Drummond said that was not for him to say at all.  The sum in this case was not an unfair sum at all for men in that position.  He did not say that the consul's certificate was by any Act of Parliament conclusive on his Worship.  The Act said that under certain circumstances his Worship had power to rescind the Articles, but that did that mean - I meant under circumstances proved before the Court.  These men stated that they did not understand the Articles, and stood to profit by that statement.  The Consul certified that he had ascertained and was satisfied that they did understand it; and the Consul could not possibly profit by certifying that.  Was that certificate to be treated as worthless on the mere interested statement of one or two sailors?
  His Honour remarked that the certificate was not worthless, except when there was direct evidence against it.
 Mr. Drummond contended that if such evidence as that of these sailors could override it, the certificate was certainly worthless.  The Consul had no opportunity of appearing here and giving evidence to prove that he had done what he officially stated that he had done.  The position was a most serious one.  The seamen on board the ships in the harbour would be able to repudiate their agreements right and left.
  His Honour sad it did not follow because he rescinded the Articles in one case that he would do so in another.
  Mr. Drummond thought it would be impossible to find a case on which there was less ground for rescinding the Articles than in this case.  His Worship might probably have stronger cases brought before him, but he could not possibly have a weaker.  There were many contracts which were made before Consuls - marriages amongst them - of which he gave a certificate.  Some were conclusive, and some were not.  But if a Consul's certificate could be upset by the unsupported statement of an interested party, this might even be used to upset a marriage.  He would put the matter in another way.  Nearly every English Consul in China, if not every English Consul - his Worship being one of that Service - held office at a port - generally a sea-port; and at the Consulate-General here there was a special Shipping Office.  Let them take the case of a man shipped in Shanghai, with every form duly and properly observed, in exactly a similar way to that which had been followed in this case; the Articles read over and explained in the proper British Consular office, certificate given, signed perhaps by his Worship, perhaps by Mr. Alabaster, the Consul-General, perhaps by Mr. Vice-Consul Ford - at any rate duly signed in proper form. Then suppose this certificate were produced before a magistrate in New York., and one of the sailors sad, "That was never read to me at all; I want my wages in full; I never agreed to that, I agreed to be discharged in England."
  Suppose the magistrate believed that story, and said, "The certificate is worthless; the consul may have been upstairs, or anywhere else; what he says is not true." What would his Honour's feelings be on reading a newspaper report of such a thing as that? Would he think that the magistrate had treated him in the way a Consular official ought to be treated, after giving a proper certificate in a proper form?  He put the matter in that way in order that his Worship might consider very carefully before taking such a step as that.  
  This was a most serious matter - one affecting closely the daily life of a large number of ship-masters and ship-owners, and the possibility of their carrying on business.  It would perhaps crate more or less a revolution in the management of business if such a decision were given, for there would be no safety for the masters of ships if consul's certificates were rendered valueless.  He did not deny that his Worship was entitled to give such a decision if the circumstances were such as to satisfy him that an injustice would be done by adhering to the Articles; but in this case, he contended, the circumstances proved were wholly insufficient.  There was no ground for presuming that the Consul was upstairs when he certified that he was present.
  Hs Honour - But assuming that the Articles were properly read over, and that the plaintiffs, not understanding much English, did not catch what it was about; the Consul may have thought they understood it, and the result simply is that there is a misunderstanding.  They go to sea, and they find that the engagement is not what they thought it was, and they are dissatisfied.  Is it not reasonable to terminate the agreement and pay them off in such a way as is just and equitable?  Somehow or other there has been a misunderstanding as to the amount of wages.
  Mr. Drummond - Bu how does your Honour arrive at that?
  His Honour - From their own evidence.
  Mr. Drummond - Then their own evidence is sufficient to outweigh the stamen of the Consul and everything else?
  His Honour - It is sufficient to outweigh the Consul's statement to this extent - that there has been a misunderstanding.
  Mr. Drummond - He certified that they understood it.
  Hs Honour - Evidently they did not.
  Mr. Drummond - You are taking the bare statement of the men, who, by simply stating "I did not understand it," can get 2 Pounds 5s. a month instead of a shilling.  It is impossible to bring it down to a finer point than that.  Any sailor can upset the Articles by simply saying, "I did not agree to what the Consul says; I did not understand it."
  His Honour - I must judge each case on its own merits.  In this case the four men all came together and stated that they never knew anything about the shilling a month.
  Mr. Drummond - The reason he gave for wanting his discharge at first was that he was "a little ill,"
  His Honour - Oh, I do not attach much importance to that, because in the first instance they all made a statement in the Shipping Office about the wages.
  Mr. Drummond pointed out in answer to his Honour's argument that it was advisable to discharge the men on account of the dissatisfaction arising from a misunderstanding about the wages, that his Honour was constantly sending men back to their ships when they were on anything but pleasant terms with the captains. He contended that a decision in favour of the plaintiffs would render Consul's certificates simple wall-paper.
  His Honour - If these men refused duty would you have me send them to gaol?
  Mr. Drummond - They ought to have been arrested as deserters long before this.
  His Honour - Don't you think that would be rather harsh, when they say they were got on board under a misunderstanding?
  Mr. Drummond - I do not think it would be in the least harsh.  However, it is not necessary to discuss that now. - Continuing, Mr. Drummond said his Honour was asked to rescind the contact at a rate of wages contrary to the distinct agreement.  Every seamen in a similar position would of course apply at once to get his discharge, accompanied by more wages than were due to him under the Articles, when it became k own that as against his word a Consul's certificate was no better than waste-paper; because, as he had said, it was impossible to imagine that in any case the evidence could be weaker than in the present case.  The Court would be flooded with seamen who had "misunderstood the Articles," and who wanted to get more wages and be discharged here instead of somewhere else.  It was simply a question whether a Consul's certificate was to have weight or not.
  Hs Honour - Weight? How much weight?
   Mr. Drummond contended that it ought to have weight against everything except independent evidence.  Interested evidence surely ought not to outweigh the certificate.
 His Honour a sked how many men there were on board the Minnie Burrell.
  The Captain said there were six on board at present.  There had been fourteen.
  His Honour suggested that it might be possible to get independent evidence.
  Mr. Wainewright said he did not call any of the men because he had had no opportunity of ascertaining what evidence they had to give.
  Mr. Drummond thought as the men had been able to come to the court and get such a nicely dawn up summons, with reference to Acts of Parliament, and amateur legal advice, they might also have got some assistance in this direction.  He pointed out that an independent witness had been called on behalf of the defendant - in fact a witness who might be said to have been speaking against his own interest.  He, at any rate, was one of the men who would not take the line of the plaintiffs.  He had acknowledged that he understood his agreement, and was prepared to stand to it.
     His Honour - Yes, but he confined himself to saying, "Well, I understood it," whether they did or not.
  Mr. Wainewright - Yes, and he speaks English, which they do not.
  Mr. Drummond said at any rate it was some evidence in support of the consul's certificate.  However, it was useless to carry the argument any further, and he would only impress once more upon his Honour the very grave nature of the cause, and the importance of considering every bearing of it before coming to any decision founded on assumptions not supported by most distinct and independent evidence.
  Mr. Wainewright thought it necessary to say very little, as the case was a very clear one.  Mr. Drummond had said that these men had a very powerful motive for wishing to be discharged; but he (Mr. Wainewright) did not see why, unless their story were true.  If they remained on board they would be getting 2 Pounds 5s a month, and they had never said that his was not sufficient; they only said that working for 78 days without wages was a very different thing from what they bargained for.  It was clear that the plaintiffs did not know enough English to understand the Articles when simply read to them in the ordinary manner; and with regard to the Consul's certificate, it was evident that this was simply a common form the Vice-Consul certified with regard to a batch of thirteen men that he was satisfied that they all fully understood the agreement, which was equivalent to saying that they were all equally intelligent and attentive.  If a separate certificate were given for each man it might be worth something; but the certificate related to a batch of thirteen, and he had little doubt that if one or two of these men had been absolutely ignorant of the English language and there had been no interpreter present, the same certificate would have been given.
 When brought into conflict with positive evidence very little weight ought to be attached to it.  The men all declared that they did not understand the Articles, and never intended to ship on those terms.  And the presumption was that they did not intend to do so, because it was a clear breach of the law of the place where they were shipped.  It was quite evident that the Captain was recouping himself for an advance made to the men, and in so doing he committed a breach of the law.  I was very probable that the plaintiffs did not know the law; but still it was not to be presumed that they understood that they were being shipped in a manner which was a clear infraction of the law of the United States.
  With regard to the witness who had been called for the defence, he had been most careful - and very properly careful - to say that although he understood the articles himself, he could not say whether the plaintiffs understood them.
 Hs Honour - Well, I shall adhere to the decision I have given, under the circumstances of the case. I am satisfied after full consideration that somehow or other these men were not made to understand the clauses on the Articles with respect to wages.  Therefore should the men be sent back they would probably refuse duty; and unless I am prepared to discharge them I must be prepared to send them to gaol.  Now I think that under the circumstances that would be exceedingly harsh.  The next thing will be that they would be had up for refusal of duty; and having once given my decision I shall have to stick to it; and the result will be that I must send them to prison.
  Mr. Drummond - Your Honour is rather anticipating matters.  There is no such application.
  His Honor - But that will be the result.  Therefore I must order that the contract be rescinded, and that the wages be paid at 2 Pounds 5s. a month, less any legal advances that the Captain  may have made - any advance that the law would sanction.
  Mr. Wainewright -When your Ho nor says a legal advance. Do you mean, according to English law?
  His Honour - The contract was made in New York, and of course the law of New York guides it.  The rate must be 2 Pounds 5s. from the time of shipping.
 Mr. Drummond - Is it understood that that applies to all the men on the ship?
 Hs Honor - No; it is limited to these three cases before me, on the ground that these men, being Japanese, have not understood the Articles.
  Mr. Drummond - Being Japanese?
  Hs Honor - That is one of the elements of the case.  If they had been foreigners I should probably have thought they understood it.  I am no anxious to encourage litigation; I am sorry that the necessity has arisen.
  Mr. Drummond - Then it is easier for a Japanese to break his contract than any other man?
  His Honour - I do not say that; but these Japanese, not understanding English, and being shipped under a misunderstanding, are entitled to have their agreements rescinded.

Note

This is one of a  number of cases of this kind in 1886. See also The Albania, 1886 and see Minor Cases China and Japan, 1886.

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