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Colonial Cases

Tessensohn v. Will, 1887

[shipping, assault]

Tessensohn v. Will

Supreme Court for China and Japan
Rennie CJ, 26 May 1887
Source: North China Herald, 27 May 1887

Before Sir R. T. Rennie, Chief Justice.
Shanghai, 26th May, 1887
  This was an action by Franz Tessensohn, a German and chief mate of the Japanese barque Kumasaka Maru, to recover damages for an assault alleged to have been committed upon him by the Captain of the ship, John Will, while the vessel was in Kuchinotszu harbor on the 3rd of March last, whereby his arm was fractured.  He claimed $300 as wages from the 2nd of February at $50 a month less $40 which he received as an advance; $100 damages for the personal injuries, $140 for sustenance from the 3rd of March, and $9 for medical attendance.
  The defendant in his answer admitted a technical assault but pleaded that it did not do the plaintiff any serious injury, and it was committed under great provocation from the plaintiff who stabbed or struck him (defendant) several times on the head; that the plaintiff then deserted from his ship; and finally he paid the sum of $5 into Court as sufficient to satisfy the plaintiff's claim.
  Mr. Wilkinson appeared for the plaintiff.
  Mr. Wainewright for the defendant.
  Dr. W. J. MILLES deposed that he was a Fellow of the Royal College of Surgeons, England, and a Licentiate of the College of Physicians, practicing in Shanghai.  On the 9th or 10th of this month he made an examination of the plaintiff's arm, and found some thickening and deformity of the right forearm, about an inch and a half from the wrist.  He concluded that he had sustained a fracture of the ulnus a small bone on the inner portion of the arm.  The result of such a fracture would be that he would be unable to use his arm at all until the fracture had time to set, which would be some six or eight weeks.  At the time of the examination plaintiff had some loss of motion still.  He believed that the arm would be ultimately as strong as ever.  He would say that the fracture was of comparatively recent date; perhaps it might be two months, more or less.
  Cross-examined - He had only examined the plaintiff on two occasions.  When he examined him on the first occasion the fracture was united.  He formed his conclusion as to the time of the injury from the appearance of the ends of the bone, which were a little thrown out.  Witness would say that the injury might be caused by the man falling down, but in the majority of fractures by falls it was the other bone, the radius, which would be broken.  Such a fracture could be caused by a direct blow by a stick or some blunt weapon.  It could hardly be caused by the fist.  There was no wound to the skin.  An extremely strong blow of the fist might cause it.  It could be produced by the injured man himself striking some hard object downwards.  The plaintiff's bones were medium sized and there was nothing in his condition of health to lead witness to think that his bones were more friable than usual.
  To Mr. Wilkinson - Such an injury - or fracture - of the ulnus has occurred by one man hitting another with his fist in a prize fight, but the mere impact of the fist was not likely to cause the facture.
  The plaintiff was then sworn and deposed - I am a German subject, engaged on the Japanese barque Kamasaka Maru as mate.  I was first engaged on the 12th of March, 1886, for about four months or so.  These are my discharge papers bearing the date of my engagement and signed by the captain.
  These papers showed that he was discharged on the 8th August, 1886, and that he was re-engaged on the 12th August and remained on the ship till 3rd March this year.  The last articles were signed on the 2nd Feb. this year for six months at $50 a month.
  Examination continued - Of my wages from the 2nd of February I have received $40.  My discharges bear the words "character very good, "conduct very good." On the 3rd March the vessel was lying off Kuchinotszu harbour.  The master went on shore that morning and came on board at 9 o'clock in the evening, when I was lying on my bed asleep. I was roused up by the boy who came and called me twice.  I went on deck, and saw the captain with his hand on the second mate and growling at him.  Then he struck the quartermaster.  I then went back to my room to avoid getting into a row.  Immediately the Captain went down to his cabin, and I went on deck and was growling at the quartermaster and second mate, the first for not being on his station, when the Captain came up again.  He found fault with me for staying too long below and not being on deck.  I said that I came up immediately, but not that I had gone back again.  Thereupon he told me that if I could not look after the quartermaster I should pack up my traps and leave the ship.  I effused to go and he tried to shove me into a sampan, and tore my coat.  I was on the quarter deck when he tore my coat, and I afterwards went on the main deck.  He called me back on the quarter deck, and I refused as I was afraid that he would strike me again.  He followed me down on the main deck, and struck me, I tried to get clear of him and push him back, catching hold of him by the neck or right shoulder with my left hand and pushed him away from me against the rail.  When I got clear of him I ran further forward and got to the after part of the main hatch.  About half a minute afterwards he came after me, and was going to strike me with something in his hand when I raised my hand to defend my head.  A stick, or something, struck my hand sharply breaking my wrist.  The blow came from whatever Captain Will had in his hand.  My hand fell down by my side, and immediately afterwards another blow struck me in the left side.  The boy then rushed forward, gave a yell, and getting between us separated us.  I felt fainting and ran forward on the top gallant forecastle where one of the men gave me a cup of water.
  The Captain then went forward and sung out for hands to come and put me in irons and chains.  But I shouted to the men that my arm was broken and asked them to get me a sampan, which I got into and went ashore, where I showed my arm to a Japanese doctor. (The doctor's certificate was put in evidence, showing that the plaintiff was under this care for 21 days for a broken arm, and paid him $9.) |The doctor put up his arm in plaster Paris, and I went to the Mitsui Bussan Kaishia office where I saw two clerks, but as they could not understand me very well I went on board another of the company's ships and told the second mate of the occurrence.  A clerk from the office and Captain Murray then went on board h Kamasaka Maru, who brought back a message from Captain Will, to the effect that he had sent my clothes on shore, but added that there was no use trying to do anything with Captain Will. I asked the mate of the Chihara Maru to change with me so that I could go up to Shanghai and have my arm attended to.  I also told the clerks in the office hat I wanted to go back to the ship, and I afterwards went up to Captain Will's house and saw him.  He said it was no use that he had reported me as a deserter, but that he might get a couple of day's pay for me.  I am now able to work, but my arm is not strong yet.  I am paying a dollar a day for my board.  I was apprehensive of violence on the part of Captain Will.
  Cross-examined by Mr. Wainewright - That was because I was told that the Captain had assaulted a quarter master with an umbrella, before I joined the ship. I had not been on shore the day of the assault, but was on the Chihara Maru two or three times on business during the day.  Captain Will was here at the time.  I went to sleep about 6 o'clock in the evening, and was quite sober.  I told the quartermaster to have all hands ready to get under weigh at 11 o'clock.  When the boy called m a second time it was a second or two, after the first time.  I go on deck a minute or two afterwards.  I went down below in a moment, and lighted my pipe.  It was then that the captain came down. I went on deck at once. I was just over the Captain's cabin, but did not stamp my feet.  I merely walked about.  I was growling at the quartermaster and second mare when the Captain came up.  He asked me how long it took me to come on deck, and caught hold of my coat, tearing the buttons off.  I then jumped down on the main deck.  I did not fall or slip down at any time from the time the captain came on deck till I got into the sampan.  I swear that I did not strike him on the head, and that I had nothing in my hand any part of the time except my pipe.  I had no clasp knife about me. I saw the Captain's head bleeding when he came on deck under the light of the lamp.  I think he got the blood on his face when I pushed him against the maintopsail halliard.  I pressed his head against the rail to get clear of him. My arm was not broken at that time.  It is not true that I brought a knife down on his head two or three times, or that I said "I did no mean to do that."  When I saw the blood on his face, I said "Captain Will give it up." I could only see blood on the one side of his face.  He struck me in all three occasions, first on the left shoulder with his fist, that was on the quarter deck when he wanted to push me into the sampan; the second time in the same place also with his fist, and the third time on the wrist.  I did not see him take up a belaying pin.  The fourth blow was in my thigh.  I got down into the sampan by a rope over the bow.  Captain Murray told me that Captain Will said that he had sent orders on shore to arrest me.  I never applied to the office to give me work, but in Kuchinotszu they told me that when the ship came back they would ask the Captain to take me again.
  Re-examined by M r. Wilkinson - I have not had any employment since.  I could have gone as mate in a Japanese steamer a month ago, only that I would not have been able to return in time for the trial.
  To the bench - I think the Captain's head may have struck a belaying pin when I was pushing him against the rail.
  Captain Will, the defendant, was called and deposed that he held a provisional English certificate, and a Japanese certificate, and first commanded a ship in 1868. He signed the certificate produced by the plaintiff, in blank.  He had been often on strained terms with the plaintiff, and had sometimes reason to complain of his conduct.  
  Witness then deposed to the circumstances pf the assault.  When he went on board at 9 o'clock on the night of 3rd March he found two boats across he gangway.  He sent for the mate who did not answer him, and witness sent for him again, but the second mate came.  Witness sent the second mate for the plaintiff, who still made no answer.  Witness thought then that the plaintiff was "tight," and told the second mate to let him sleep till 12 o'clock the time for sailing.  Witness had no words up to that time with anybody, but with the quartermaster for not being at his station. About 15 minutes afterwards while witness was reading in his cabin he heard someone stamping over his head, and going outside heard plaintiff doing what he supposed to be swearing in German.  Witness called him to explain his conduct and insubordination, whereupon the plaintiff gave him an impudent answer and thy got hold of each other.  Witness immediately felt a sharp pricking sensation in his head and blood flowed down his face.  The plaintiff struck him four blows one after the other, on his head.  The plaintiff must have used some kind of weapon, and some of the sailors called out that he was using a knife.  Witness could not remember whether they got into a scuffle at the halliards, but the plaintiff did not shove him against a belaying pin, nor had he, defendant any kind of weapon whatever in his hand.  Witness saw the plaintiff trip and fall after he crossed the main hatch, when the scuffle was over.
  The ship left that night, and twenty minutes before that the captain of the other ship mentioned came on board, but did not plead for the plaintiff to be taken back.  Witness reported the occurrence to the office, and the letter was produced asking the people at the office to send for a policeman and oblige witness by putting the plaintiff, who had deserted and stabbed witness in jail, till he (the Captain) returned. When the plaintiff went to witness's house he (witness) said to him that when he got to Shanghai he might be able to get him $10 the balance of the money due to him before he deserted.
  Cross-examined by Mr. Wilkinson - He gave the plaintiff's clothes in charge of the man that came on board from the office. Witness's head was cut in four different places.
  To his Lordship - It was about twelve days before witness could put his hat on in consequence of the wounds on his head.  He had no doctor to look at the wounds.  He called up the mate because the hip had he appearance of being almost deserted, and he wanted to know if all the crew were on board, as he was to sail at midnight.
  TUSHIKI SUGIHARA who was second mate on the ship on the 3rd of March last, corroborated the general evidence of the defendant, but did not witness the scuffle.  He saw the Captain's face covered with blood which was streaming down over his eyes.  He saw no weapons.  Witness dressed the Captain's head and afterwards spoke to the mate and told him the Captain wanted him, but he answered that his am was broken and that he could not come.  Witness and the crew were then told by the Captain to go forward ad arrest the mate who, however, had gone ashore in a sampan. There were three large and two small wounds on the captain's head.
  MONG AMI KAH, a Japanese boy employed in the Captain's cabin, deposed to seeing the mate strike the captain "plenty times," but did not see the captain strike the mate.
  IWAMA SEI, a Japanese girl, who was on the Kumasaka Maru on the day in question, deposed that the mate pulled the Captain, who was on the quarter deck, by his clothes down on the main deck and struck him.  The Captain then struck him in return.
  The Court then adjourned till tomorrow.

Source: North China Herald, 3 June 1887

Shanghai, 27th May, 1887
Before Sir R. T. Rennie, Chief Justice.
  The hearing of this case resumed this morning.
.  .  .  
  His Lordship in giving judgment said that he was clearly of opinion that the case was mainly the result of the Plaintiff's conduct, and though it may have been extremely unfortunate for him, he had himself only to blame for the matter. It was beyond doubt that he was aware of the fact that the captain was asking for him, and he did not come until he was called the second time, and then he merely put his head up out of his cabin, and returned to it again, rightly or wrongly, being afraid to go to the Captain.  It was also quite clear, that when the Captain had gone back to his cabin the mate went overhead, and commenced walking heavily about, and on his own admission was growling at the second mate.
  The Captain up to this time was entirely right, but in the discussion which afterwards took place between them it was not certain what happened. He (his Lordship) could not say whether the captain laid hold of the mate's coat then or not, and the Captain who was under great irritation at what he considered insubordination very frankly admitted that he said to the plaintiff "If you cannot keep the quartermaster in order, you had better pack up your things and go ashore." The Captain called him again, and he refused to go up.  Until that it is quite clear what happened, but then there was no doubt that in the scuffle which followed, the mate, was guilty of extreme violence and that the captain received several severe wounds on the head.
  Up to that point everything was perfectly clear.  Then came the mate's story that the Captain pursued him with some weapon in his hand, and that the Captain struck him with it on the arm and broke it.  The Captain, on the other hand said that the mate ran away from him, and fell, breaking his arm, and that seemed to his Lordship the more likely story.
  The Captain then went further and said that when he sent for the mate again, and he refused to go, he (the captain) concluded that he was insubordinate and sent for the crew and second mate to put him in irons; but he did not run after him himself, and did not threaten to throw him overboard, or anything of that sort.  The mate did not wait to see what would happen, but slipped over the brow of the ship, and went on shore.  
  Did he tell the people at the office that the Captain of the Kamasaka Maru had grossly assaulted him? He did not. But he went and asked the Captain of the Chihaya Mary to intercede with the defendant to take him back on his ship.  There was a possibility that the Captain may have behaved very violently to this man, but considering the violence used by the latter, his Lordship was bound to give the Captain the benefit of any doubt, and he did not therefore find as a matter of fact that he committed the first assault. On the other hand he found that he was assaulted with extreme violence by the mate, and was thereby to a certain extent excused for any assault he may have committed.  He did not think it was necessary to go into the particulars of that assault.
  With regard to the question of desertion, he knew what the English law on the subject was, but he did not know what the Japanese law might be, and he thought that under the circumstances the Captain was reasonably entitled to report the mate as a deserter.  Under these circumstances there would be judgment for the defendant.
  Mr. Wainewright said that he did not propose to ask for costs, but he did not know who was to have the $5 paid into Court.  He proposed to ask for costs to the extent of $5.
  Mr. Wilkinson - The five dollars to be paid back?
  Mr. Wainewright - Yes.
  Mr. Wilkinson assented to this proposition.

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