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Colonial Cases

Deans v. Hogg, 1888

[wrongful dismissal]

Deans v. Hogg

Civil Summary Court, Shanghai
Hall AAJ, 8 December 1888
Source: North China Herald, 14 December 1888

LAW REPORTS.
H.B.M.'s CIVIL SUMMARY COURT.
Shanghai, 8th December
Before J. C. Hall, Esq., Acting Assistant Judge.
DEANS v. HOGG - ALLEGED WRONGFUL DISMISSAL.
  In this case Henry Deans, late second officer of the Formosan Trading Co. steamer Cass, sued Captain Joseph Hogg, master of the same vessel, for $99.99 for alleged wrongful dos missal.
  Mr. H. Browett appeared for the plaintiff; the defendant conducting his own case.
  Mr. Browett in opening the case stated that his client left England on the 21st June as third officer of the Smith, sister ship to the Cass, having been engaged in that capacity by Mr. Hong Chee, acting for the Company.  On arrival of the steamer at Suez on the 8th July he was promoted to second officer and transferred to the Cass, which arrived here on the 5th September last.  On the 24th October, while the ship was lying alongside the wharf, his client went down below to take a rest, but the chief officer had previously mentioned to him that he would like to go to Mr. Ord's funeral, and asked the plaintiff to come up a little sooner to allow him to go.  Not coming on deck again as soon as the chief officer called him, his client and the chief officer thereupon had a few words.   The chief officer finally told plaintiff that he would not go to the funeral and that the plaintiff might dress himself and go if he wished.  His client did so and did not return to the ship till two o'clock the next morning.  Some little time afterwards going on deck, he met the chief officer who told him that he had had high words with the Captain, respecting the conversation between them on the previous day.  Nothing more transpired in the matter, till the 5th November when the ship had again returned to Shanghai, when the Captain sent for plaintiff and counting out his month's wages up to date, said he did not want him on board any longer.  His client entered into an agreement with Mr. Hong Chee on the 3rd June, 1888,  at North Shields to serve as third officer of the Smith, and lower down in the agreement (produced) there was an endorsement to the effect that plaintiff was promoted to second officer, signed by Mr. Hong Chee.
  There was a clause in h agreement stating that in the event of plaintiff's services not being required on the arrival of the steamer at Formosa, or within twelve months, he should receive two months' salary as compensation, and a further clause was to the effect that if he misconducted himself, by drunkenness or otherwise he could be dismissed without any compensation.  His (Mr. Browett's) case was simply that under this agreement his client was entitled to the sum claimed, as he would show the court that he had not misconducted himself or been guilty of  drunkenness while on board.  He then called
  Harry Deans, the plaintiff, who was sworn and identified the agreements (produced) which had been made between him and Mr. Hong Chee, on behalf of the Formosa Trading Company, on the 18th of June and 8th July 1888.  Plaintiff rendered service under both of these agreements,
  At Suez Bay some row occurred on the Cass in consequence of which the captain. Chief and third officers left the ship and went home.  Mr. Hong Chee then appointed Mr. Hogg he chief officer of the Smith, to be captain of the Cass.  Captain Hogg went to Alexandria and shipped a second mate there.  On arrival at Suez Bay, the second officer hearing that there had been some trouble on board the Cass refused to join her, whereupon Mr. Hong  said that plaintiff should go on board the ship till she arrived at Hongkong, as they could not detain the ship any longer at Suze.  Plaintiff went on board with the understanding that he should return to the Smith if he did not like the Cass.  It was distinctly understood that he would have this option, as he only changed ships in order to prevent further delay.
  On the arrival of the ship at Shanghai, as far as he understood they were turned over to the China Merchants Co. and plaintiff went and saw Mr. Weir, the Superintendent of the China Merchants Co. and asked him to transfer him back into the Smith again, as he was not very comfortable aboard the Cass.  Mr. Weir told him to wait a little while and he would see about it.  The steamers were afterwards handed over by the China Merchants to Melchers & Co.'s, a German firm, and on the 4th November, the Cass arrived in Shanghai from Tientsin.  On the 5th Capt. Hogg called plaintiff to his room, and paid him his month's pay, saying "I am going to pay you up to tonight, and I am finished with you now." Plaintiff's pay usually ran from the 1st to the end of the month.
  Plaintiff asked what that was for, to which Captain Hogg said he was not going to keep a second mate on his ship who would come on board and kick up a row with the chief officer.  Plaintiff said he begged his pardon, he had not been ashore and he did not see how he (Capt. Hogg) came to know that the plaintiff and the chief officer had had a row, as the defendant was not on board the ship when it occurred. The defendant then accused him of growling about the "chow" in the mess room on the previous night.  Plaintiff said that some of the defendant's boys must have been carrying tales. Defendant said that plaintiff seemed to think that he could do as he liked on board the ship, and that he would not have him there any longer, he would have to clear out.  Plaintiff replied that he would not leave till he heard more about the matter, and remained on board that night.
  The following morning Captain Hogg again sent for him, and asked was plaintiff not going to pack up and clear off as he had another second officer engaged.  Plaintiff replied that it would be better if defendant gave him a discharge to show where he had been, to which Captain Hogg said that if he went ashore quietly he would give him a very good discharge and do all he could to help him, but that if he gave defendant any trouble he would do all in his power to do plaintiff harm in Shanghai. Plaintiff then left he ship without any discharge.
  To Mr. Browett - The reason I was not comfortable on the Cass was on account of the bad terms between the Chief Officer and the captain, and the representations made by the captain about me, namely that he only kept me on board because he had a great respect for my mother.  The chief officer said the Captain was always threatening to put me off the ship, and complaining about me.  I have always willingly obeyed the lawful commands of the chief officer and the captain, and have always been perfectly sober when on board.  The mate and I were always good friends, even after the alleged row.  I never mentioned anything about the "chow" on the particular occasion referred to by the Captain, but once or twice I complained to the steward about my porridge being cold in the mornings.  Since my dismissal from the Cass I have endeavoured to get another ship, and failed, nor is any likelihood of getting one.  This is the worst time of the year for getting a ship.
  Cross-examined by defendant - I do not remember deliberately disobeying your orders about not going on shore ay Colombo.  I do not remember saying that I would go ashore whenever the ship was tied up, according to China custom.  I said I would go on shore if I got leave from the chief officer.  I remember your coming on the bridge during my watch after leaving Singapore,  and finding me lying down in a long chair smoking a cigar,  I apologized to you on that occasion, I said that I have been in a ship before in the China trade where a seat was provided for the officer on watch.  I did not say that you had only been in the habit of commanding sailing ships, and that you would have to alter your style now that you had a steamer.  
  On the 5th September, leaving Tamsui, I remember being down closing the ports, and some hours afterwards I said to that it was not the second officer's work on the China coast to close the ports.  I remember when we left Tamsui for Pelam with soldiers, the third officer coming up on the bridge with a revolver in his hand and he accused me of stealing a bottle of whisky from his room.
  Mr. Browett objected, and the plaintiff protested against the imputation implied in the question.
  The defendant said he wanted to elicit something about the plaintiff's sobriety.
  Cross-examination continued - I was perfectly sober that day after I came on shore to see the Consul here about my agreement.  The day I came shore I did get the worse of liquor, but I did not go on board in that state.  I went on board about 2 o'clock in the morning and was sober at my duty on the next day.  I was away all the day I went to see the Consul, but that is nothing.  On the 24th October, I was perfectly sober and standing to my duties.  I do not know anything about telling one of the officers that I would knock his nose off his face.  Mr. Hewson asked me to dine with him with a friend of his in the mess room and I did so.  There was no harm in that.  I was perfectly sober.  I do not remember telling the chief officer that I would sleep whenever I liked.  I don't think I ever said that I did not belong to the Cass.  I don't remember you telling me that the sooner I left her, after we got to Shanghai, the better.  I remember saying to you that I would prefer remaining in the room until I got to Shanghai, which would only be two or three days, but what I meant by that was that I would be transferred to the Smith when I got there.  There was never a word spoken to me about drunkenness or misconduct while on board the ship.
  Re-examined - I got permission from the chief officer to go ashore on the occasion at Colombo of which the captain complains, and which was on a Sunday when nothing was doing on the ship.  I was only away an hour to get a knife which I had forgotten on shore.
  The defendant said that he had upon that occasion expressly forbidden plaintiff to go on shore.
  The Chief Officer was next sworn and stated that he went to Mr. Deans' berth at 3.30- p.m. on the 24th October to call him, as previously arranged, to allow witness to attend a funeral.  Plaintiff was asleep and witness got no reply;' on witness going again to the berth plaintiff was still asleep and witness shook him but could not wake him. About four o'clock the plaintiff came on deck and asked witness why he had not gone a shore.  Witness replied that it was because plaintiff did not come on deck in time to relieve him. Deans said there was still plenty of time to get ready.  A few words passed between them, and plaintiff said he could get ready in time if witness would allow him to go, at the same time expressing a wish to attend the funeral, to which witness assented, and plaintiff dressed himself and went ashore.  After he returned on board the captain came to witness's cabin and said "What sort of work is this you are carrying on on board this ship? It is disgraceful." Witness said he was not aware that there had been any bad conduct, and the Captain then spoke of what had passed between witness and Mr. Deans, and reprimanded witness for not reporting the affair.  Witness had no desire to cause trouble, and told the Captain he had forgiven plaintiff, and wished that he (defendant) would overlook the matter.  Captain Hogg wanted to know all that had passed, and said that if witness did not look better after things on board he would dispense with his services.
  Cross-examined by defendant - I do not know why Mr. Deans was in bed.  I know that it is unusual for an officer to go to sleep at that time in the afternoon.  My impression was that he was tipsy; he was violent in his language towards me and threatened to punch my nose.  I told him that he had better be quiet, and he desisted.  I remember his going ashore against your orders, and I referred him to you.  On one or two occasions he said that he would go on board his own ship, the Smith, and that he did not belong to the Cass.  He was not on duty at his afternoon watch on the 24th October, and his watch was kept by you.  I sent a quartermaster to call him at 12 o'clock, but he did not come on deck.  He had not been working the previous day.  I do not think he was sober when we were going into Singapore, but I would not say that he was drunk.
  I remember his going on shore on the 7th Nov. Next day he was on board, and appeared to be under the influence of liquor.  With those two exceptions he was all right.  Mr. Deans refused to turn out at 5 in the morning, saying that he was not used to doing it and did not choose to do it.  I had to get up and turn the men to work at 5 as long as it was the captain's wish that they should turn to at that hour.  Deans went on one or two occasions to have a sleep in the afternoon, when we were in port, though I told him that I should like him to remain on deck as much as possible, but he absolutely refused to remain on deck.  The captain's orders were that the boatswain should turn the men to every morning, and it was Deans' duty to see this carried out.  This he never did, and I had to do it myself.  Mr. Deans did not always seem to have his heart in his work, and he hung behind a little, but not very often.  Once or twice you spoke sharply to me about Mr. Deans and the way he did his work, and I spoke to him, and he gave me some back answer.  I think that if I had been second officer, and conducted myself and did my work in the way that Mr. Deans had done, I should not consider that I was doing my work in a satisfactory manner.  Mr. Deans did not try to bully me, but he was often very ready with his advice, which however I did not mind.  He generally carried out whatever order I gave him but he did not appear to take an interest in what he did.  I find the working of the ship smoother as far as I am concerned since he left.
  By Mr. Browett - On the one or two occasions on which plaintiff was under the influence of liquor, I did not report the circumstances to the captain, as the latter was about just as much as I was.  I did not want to do any injury to Mr. Deans.
  Henry Hewson, second engineer, was sworn and stated that he remembered the 24th October, when there some remarks made by the plaintiff in play about the napkins at the mess, but he did not make any complaint about the "chow."  The remarks were only of a playful nature.  It was at witness's desire that Mr. Deans came to his part of the ship to dine.
  The further hearing of the case was adjourned till the 18th inst., as the Cass left yesterday for the north.

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