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Colonial Cases

The Albania, 1886

[shipping, wages]

The Albania

Civil Summary Court, Shanghai
Jamieson ACJ, 4 August 1886
Source: North China Herald, 6 August 1886

LAW REPORTS.
H.B.M.'s CIVIL SUMMARY COURT.
Shanghai, 4th August 1886
Before George Jamieson, Esq., Acting Assistant Judge.
NEW YORK "SHIPPING MASTERS."
   Captain W. T. Brownell, master of the British ship Albania, was summoned to answer a claim of $63.30 for wages, brought against him by Alexander Mack, able seaman.
  The Defendant denied that the money was due to Mack.  The man's wages were 2 Pounds 5s. per month, with ninety-nine days at 1s. per month.
  His Honour said he had been informed at the time the summons was granted that a fraud had been perpetrated upon the plaintiff - that he had been shipped under the belief that his wages were so-and-so, and when he had shipped he found that they were quite different.  It was also alleged that other members of the crew had been similarly imposed upon; and the matter would have to be looked into.
  The Defendant said Mack signed exactly the same agreement as all the others, only he, being one of three or four who were taken as substitutes at the last moment, had signed the Articles on board instead of before the Consul. The Articles were read over to the men, and they were exactly the same as others made in New York which he had seen here.  He knew nothing about Mack's story, but he was prepared to prove that the Articles were read over to him.
  Alexander MACK, the plaintiff, said he went on board the Albania at four o'clock one morning, in New York.  He went into the cabin to sign the Articles, and the only person present was the shipping master - a man named Williams Williams had told him that the voyage was to Shanghai, and that the wages were $16 a month.  The Articles were not read over to him, and he did not sign them, because he could not read or write; but Williams guided his hand while he made his mark.  Plaintiff got no advance.  He owned nothing for board, as he had been acting as housekeeper at the boarding house where he stayed in New York, in return for which he received his board and lodging.  A fortnight after they left New York  he got some tobacco and clothing from the Captain, and then he asked the Captain what his wages were, and the Captain told him $11 a month, with 99 days at a shilling a month.  He asked the Captain what his wages were because he was not quite sure whether they were $16 or $18; but he was quite sure the shipping master told him $16.
  Cross-examined by Captain Brownell, the plaintiff said he was quite sure there was nobody but himself and the shipping master in the cabin.  The Captain brought out the Articles and then went on deck.  He denied having admitted to the Captain that he had been drunk for six weeks on shore, and that he was so drunk when he came on board that he did not know whether he had signed the Articles or not.  He was drunk for a time the day before, but he was sober when he came on board, and remembered perfectly what was taking place.
  Defendant - You are on your oath, Mr. Mack, remember.
  Plaintiff (indignantly) - No, Sir! (Laughter.)
  Defendant - Didn't you tell me you did not know what wages you were getting until two weeks after you left New York?
  Plaintiff - Well, $18 or $16.  Mr. Williams told me $16.  There was not a man on board knew his wages were only $11.
  The Defendant admitted that the men had seemed surprised to find that their wages were only $11 a month.
  His Honour - It is said there was a fraud practiced on the men.
  Defendant - You are not allowed to give an advance to the men in New York, and it is really impossible to get them without.
  His Honour - That is no excuse for hoodwinking the man.
  Defendant - He has not been hoodwinked by me.
  His Honour - But he may have been by a man you employed.
  Defendant - If he has been hoodwinked, so have all the other men.
  His Honour - I am told they have all been.
  Defendant - Well, I can't tell what they have been told outside.  I was surprised when they told me about the $16.  If there has been any fraud I know nothing about it.  I cannot deny that somebody may have told them that they were going to get $16, because I know nothing about it.
  William Thompson was then called.  He said he shipped at 4 o'clock on the same morning as Mack.  The Articles were read to him, but not the wages.  He did not remember seeing Mack present when the Articles were read, but he might have been present.  Nobody told him what his wages were to be, and he never knew till he had been on board for some time. Witness had requested to be shipped as an ordinary instead of an A.B. seaman.  It was a runner employed by Williams, the shipping master, and not Williams himself, who was present and read the Articles.
  A sailor named Kelly was then called.  He said he went on board the Albania at 4 o'clock the same morning.  Williams, the shipping master, was not there, but one of his runners was.  Before he went into the cabin this runner told him, on the pop, that the wages were to be $16, and witness said the proper rate was $18.  He then went into the cabin, and the runner said, "Sign your name," and he did so, thinking he was going to get $16 a month.  The Articles were never read to him.  Afterwards he found that according to the Articles he was only to get 2 Pounds 5s., with 99 days at a shilling a day.
  Cross-examined, this witness swore that the Articles were not read to him; the captain was present when witness signed the Articles, but had his back turned towards witness.
  His Honour - Well I am bound to say they make out a strong case.
  The Defendant asked if that was the whole of the plaintiff's case.
  His Honour said he reserved the right to call for further evidence from the plaintiffs, but this would do in the meantime.
  H. J, Belwin, steward, was then called as a witness for the defence.  He swore that he was in the cabin and heard the Articles read to Mack, Kelly, Thompson and two other men who were shipped as substitutes at the same time; but he did not hear the wages read out and he heard nothing mentioned about wages.  Mack asked for his advance, and the Captain replied that the boarding house master would get the advance.
  Cat. Brownell, the defendant, then went into the witness-box. He said the man Williams who had been referred to was one of the "shipping masters" of New York, who were employed by all ships.  It was impossible for the ships to get on without employing these shipping masters because when they tried to do so they had all their men stolen from them without any chance of getting others in their places.  Defendant agreed with Williams to get him some men, the wages to be 2 Pounds 5s. a month.
  His Honour - Is he appointed by Government?
  Defendant - No. None of the shipping masters in New York, that I know of, are appointed by Government.
  And his business is simply to furnish men? - Yes, Sir.  We pay them so much a man - $2 a man to put them on board ship.
  And they call themselves shipping masters? - Yes, they put "shipping master" on the sign-board, and they have offices.
  Do you charge the $2 to the ship or to the man? - To the ship.  The men have nothing to do with that at all.
  And Williams told you that the wages were 2 Pounds 5s. a month? - Yes, Sir, and 99 days at a shilling a month.
  Why is that? - Well, it is to evade the law.  There is a law passed in the United States that no foreign vessel can clear if it pays an advance to the men.  If an advance appeared in the Articles we could not clear at the Custom House.
  As a matter of fact you pay an advance? - Yes, we cannot get men without.  I paid $33 for each man.
  To the shipping master? - Yes. I thought the men understood the whole thing.  I do not know anything about the arrangements.  We do not generally make any arrangements with the men at all; we make all arrangements with the shipping master.  I only picked the men at the shipping office; I never mentioned wages to them at all.  The shipping master always arranges all that in New York, as far as I can find out.
  You paid the advance to Williams? - Yes. It would in my opinion, be utterly impossible to get a crew without paying an advance; and if we cannot put down an advance in the Articles we put down the wages as a shilling a month for 99 days.  It is done simply to evade the law.  We have to comply with the custom of the port.
  His Honour - Yes, as long as you don't do any injustice it is all right enough.
  Defendant - We cannot get a crew unless we do it, Sir.  This advance is not looked upon as an advance at all; it is considered as a bonus for getting the crew. I do not understand it at all.
  His Honour - You may call it what you like, but it is getting three months' wages out of the men.  If you want to pay an advance, I do not know why you should not; but you must make quite sure that the men really get it.
Defendant - There is nothing in the Articles about an advance.
  His Honour - He says he owed nothing, and did not want an advance, and did not get it; and I don't see any reason to doubt it.
  Defendant - Well, he has told a very crooked story - the last part, about the Articles not being read to him, and about what occurred afterwards; I do not know anything about the first part of his story.
  His Honour - Your own witness admits that nothing was said about wages, and that is the essential part.
  Defendant - Well, we were just leaving, and it was done in a great hurry.
  His Honour - The master of a ship is bound to make the men understand exactly what is in the Articles.
  Defendant - The Articles were read over to them, but I do not remember about the wages.  I could not swear that the wages were mentioned.
  His Honour - That is just the important point.
  Defendant - He was told three days afterward what they were.
  His Honour - The Law says you have to read the Articles to them.  Now if you had said to them "Your wages are 2 Pounds 5s. a month, and you have three months' advance," you would have been perfectly justified; but having neglected to do that and carried them away, you constituted Williams your agent, and Williams appears to have told Mack that he was to get $16.
  Defendant - You take Mack's word for that?
  His Honour - Well, it is all the evidence I have.  You admit that you know nothing about it.
  Defendant - But he signed the agreement for 2 Pounds 5s.
  His Honour - No agreement is binding it of it obtained by fraud.
  Defendant - I have committed no fraud.
  His Honour - No, but Williams appears to have done so, and he was your agent.
  Defendant - Then all the agreements were obtained by fraud.  They are all the same.
  His Honour - I think that is very likely.  When you come to pay these men off at the end of the voyage the same question can be raised.
  Defendant - I am willing to submit to it then.  If the law compels me at the termination of the voyage to pay this to all the men I will do so.
  His Honour - It only applied to Mack at present.
  Defendant - Then at the termination of the voyage he can sue me for his wages.
  Hs Honour - The others can do the same.  If you chose to terminate the voyage here.
  Defendant - No Sir; I do not choose to terminate the voyage here.
  His Honour - Are you willing to let Mack go?
  Defendant - On what terms?
  His Honour - $16 a month.
  Defendant - No, Sir.
  His Honour - Then I shall have to consider whether he is right in saying that the voyage was to terminate at Shanghai.
  Defendant - The steward heard the Articles read to him, and Thompson heard them read, though he was not sure whether Mack was there.  I never heard of such a thing as a voyage terminating at Shanghai.  It is preposterous.
  His Honour - Well, you did not take proper precautions to see that the Articles were read to the men.  Well, I will let you know.  Come back on Friday, and if there is any further evidence, I will hear it then.
  Defendant - He was shipped in precisely the same way as the other men, who were shipped before the Consul.  The Articles are just the same, and they were read to him.  If this voyage was up in Shanghai they would all be up in Shanghai.  It would be impossible for anyone to tell him such a foolish thing as that.  Why on the face of it it is unreasonable.  He is not a Chinaman.
  The Court was then adjourned till Friday.

North China Herald, 13 August 1886
LAW REPORTS.
H.B.M.'s CIVIL SUMMARY COURT.
Shanghai, 6th August 1886
Before George Jamieson, Esq., Acting Assistant Judge.
THE "ALBANIA" CASE.
[Not transcribed.]
  His Honour - Do you mean to tell me that the ordinary rate of wages in New York is 2 Pounds 5s?
  Defendant - That is what I was told.  The sailors never asked me the rate.
  His Honour - What is the rate in London?
  Defendant - I don't know.  It varies considerably - 2 Pounds 10s and 2 Pounds 15s. I have paid 2 Pounds 10s.
  His Honour - And yet you think you can get them for 2 Pounds 5s. in New York.
  Defendant - I get them just as cheap as I can.  Just at the time wages were very low.  They told me they were leaving for long voyages at 2 Pounds 5s.
  His Honour - I am informed that in ships which have left New York since you, the wages have been $14.
  Defendant - I can call Captains who left about the same time that I did.
  His Honour - I do not think it is material.  I hold that with this man you have failed to comply with the requirements of Section 10; therefore you have no valid agreement with him; therefore you cannot compel him to go on doing work; therefore he is entitled to his discharge, and you are bound to pay him at the rate of $16 without any deduction.
  Defendant - Without any deduction?
  His Honour - Yes.  It is a deliberate attempt to evade a law which is in force in England and America.
  Defendant - Well, I object to pay it.
  His Honour - Oh! Then it will be levied on you.
  Defendant - Well, I shall have to send it in to the Board of Trade and have an investigation.  If I pay it, it will be under protest.
  Hs Honour - I am informed that it will be referred to the Board pf Trade.  It is most desirable that cases of this kind should not occur.
  Defendant - Your Honour does not want to hear any evidence?
  His Honour - What evidence?
  Defendant - I can bring Captains to give evidence as to the rate of wages.
  His Honour - It is immaterial. He claims under a verbal agreement made with your agent.
  Defendant - And that goes against the Articles.
  His Honour - And that over-rides the Articles.  I hold that distinctly.
  His Honour then informed the plaintiff that he would get his discharge, and would get his salary at $16 a month, with no deduction for advance.
  Defendant - I refuse to pay it. Sir.

 

Note

This is one of a number of cases of this kind in 1886. See also Japanese Sailors v. Steele, 1886 and Minor Cases China and Japan, 1886.

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