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Colonial Cases

The Amarapoora, 1898

[admiralty]


 

The Amarapoora

Supreme Court for China and Japan (Admiralty Division)
Bourne ACJ, 19 September 1898
Source: North China Herald, 26 September, 1898


 

LAW REPORTS,

H.B.M.'S SUPREME COURT, 

(ADMIRALTY DIVISION.)

Shanghai, 19th September.

Before F. S. A. Bourne, Esq., Acting Chief Justice.

THE "AMARAPOORA."

Re CAMERON, A. GILCHRIST, AND C. R. GILCHRIST.

ON APPEAL from the Report of the Registrar, Mr. E. H. Burrows.

   The appellants in this case were Captain W. D. Cameron, Charles Raymond Gilchrist, and Annie Gilchrist, his wife.

   The case arose out of the wreck of the ill-fated "Amarapoora" in May last. The vessel was recently sold by order of the Court on behalf of the crew, whose wages had for some time remained unpaid. Claims had been sent in amongst others by the Master, Captain Cameron, for $5,333 (gold), and by Mr. and Mrs. Gilchrist, alleged to have been respectively supercargo and stewardess of the steamer, for $2,720.95 and $370,42 (gold), The sale of the vessel raised Tls., 8,300 and the Registrar in dealing with the claims prepared a report setting the wages of the crew in priority to the master's claim and ruling that the other appellants' claims must be struck out on the ground that they had no maritime lien on the proceeds of the sale of the ship. Hence the appeal.

   Mr. H. P. Wilkinson appeared to uphold the report on behalf of the seamen who filed the original petition for the arrest and sale of the ship, and Mr. H. Browett represented the appellants.

   His Lordship said - I have read the report, which appears to me to be a very carefully prepared one, and I think that as the burden of proof lies on anyone who wishes to upset it you had better go through it from the beginning, Mr. Browett.

   Mr. Browett - I would suggest to your Lordship that it is only necessary to consider those portions of the report which are objected to.

   His Lordship - Exactly so, you begin where your object? You have, of course, read the report?

   Mr. Browett - Yes.

   His Lordship - Well, if you have anything to say, begin at the beginning and object to any points that strike you as not being in accordance with law and justice. I may say I don't think you ought to go into matters of detail, they have all been carefully considered by the Registrar, but in any matter of priority or general principle I shall be pleased to hear you.

   Mr. Browett - With regard to your Lordship's ruling on that point I must ask your Lordship's leave to call evidence.

   His Lordship - Certainly, if it is on any matter of general principle.

   Mr. Browett - The first objection that I wish to raise upon the report is that against the claim of Mr. Gilchrist, the supercargo, and if it will be quite convenient to your Lordship it will, I think, be as well if we were to deal with both Mr. and Mrs. Gilchrist at the same time.

   His Lordship - Does no one appeal on behalf of the sailors?

   Mr. Browett - Not that I am aware of. 

   His Lordship - There is an appeal on behalf of the master, Cameron and also Gilchrist and Mrs. Gilchrist. Those are the only three appeals.

   Mr. Browett - Those are the only three appeals, and I think if I might suggest to your Lordship that as the evidence with regard to both Mr. and Mrs. Gilchrist's claim is practically the same we might take them together.

   His Lordship - As far as you can.

   Mr. Browett - Yes, as far as we can.

   His Lordship - You had better go into the legal question first, because if you cannot get over that it is of no use coming to your evidence.

   Mr. Browett - Well, in the first place, I submit that both Mr. and Mrs. Gilchrist are seamen within the meaning of the Merchant Shipping Act of 1894, section 742 of which defines a seaman as follows:

"A seaman includes every person except the master, pilot, and apprentices duly indentured, and registered employed or engaged in any capacity on board any ship."

  His Lordship - Yes, that is clear enough, but your difficulty is that they were not signed on before a shipping Consul or other proper official.

  Mr. Browett - That is one of the Registrar's reasons for objecting to their claims. Of course I shall call evidence on the point to prove exactly what was done and also I maintain that they are on the official log and on the Articles in the first place.

   His Lordship - Section 124 says a master shall engage a seaman before some Consular official or some superintendent, or, if there is no superintendent officer of trade, before an officer of Customs.

   Mr. Browett - I propose to bring evidence to shew that both Mr. and Mrs. Gilchrist were shipped at the last moment and had no opportunity of complying with the requirements of the act before a Consul, but signed on and so far as they were concerned did what apparently was quite the usual thing to do, in signing on before the purser, Mr. Wood.

   Mr. Wilkinson - It is only fair to say that as representing the other seamen that I will not only contend that the agreement itself is not in accordance with the Merchant Shipping Act but that the supercargo and stewardess whether engaged or not were never employed. I shall not only argue that the rules of the Merchant Shipping Act have not been carried out but that even if they had and apart from any question of invalidity, irregularity, or unusualness they were not in fact employed and did not in fact act either as supercargo or stewardess.

   His Lordship - We need not take up the point now though I understand there is a great deal behind it. It seems to me the great difficulty is the question of their not having signed on the Articles. This is a question of their claim against the ship simply. Had it been a question of action as against the captain or owner there might be very much more to be said on the point, but being strictly a claim against the ship, unless you can get over this legal point, I don't think you need go any further.

   Mr. Browett - In support of my case I simply submit they have been signed on and are entitled to their wages. They signed on the best way they could and like others were signed on.

   His Lordship - When they arrived at the next port did they do what was usual there?

   Mr. Browett - With regard to that I will point out that was not obligatory. I maintain that when they signed on the Articles they did all they were called upon to do according to law for it was the captain's duty or the master's duty according to the Merchant Shipping Act to take the Articles to the Consul at the next port of call and have the signing on properly initialled or signed. But the law does not place any duty on my clients to see that it was done. The law has imposed a penalty upon the captain or master for not complying with the Act, but there is no legal obligation on the part of my clients to see that that is done. The law simply says the master of a vessel shall do this and do that but it does not say that the persons being employed or engaged shall see that it is done.

   His Lordship - Yes, I see that, but the question is whether these two people are brought within a certain category as seamen and as being engaged.

   Mr. Browett - I maintain that they are in the meaning of the definition of the Act, seamen. The definition is very wide indeed. It includes every person engaged or employed in any ship. I don't think you could have any wider definition than that.

   His Lordship - Well, Mr. Wilkinson, will you go on to the next point or have you anything to say about that point of law?

   Mr. Wilkinson - May it please your Lordship, as regards my learned friend's contention that anyone engaged or employed in a ship excepting masters, pilots, and apprentices come under the definition of a seaman I take it that that is the law. It says in the Act that every person excepting masters, pilots and apprentices duly indentured and registered employed or engaged in any capacity on any ship is a seaman, but then of course we have to consider what employed or engaged means. And I submit that it means persons engaged for employment according to the provisions of the Act. Thus if my learned friend's clients could prove that they had been employed on the ship in any capacity and had anything to do with the ship according to the Merchant Shipping Act they would have a seaman's remedy for wages. But employed means according to the provisions of the Merchant Shipping Act. If they were employed they doubtless have a remedy against someone, but they cannot come here and claim against the ship unless they have been employed in accordance with the Act. My learned friend says compliance with the Act is a matter for the master and not for the seaman. But in using the word seamen he is using it in an entirely different sense from the meaning under section 742. A ship might have a legal adviser engaged or employed and in some possible circumstances a Court might be applied for, but it could not be supposed that he was an ignorant person and ignorant of the sections of the Act. The Merchant Shipping Acts have been so framed as to make a knowledge of the law to seamen as little necessary as possible, but to argue that this question is not bound by Section 124 is, I think, an erroneous argument. 

   It is not a question of an agreement not having been properly signed and attested; it is a question of a person just within the limits of the law claiming under the very old fashioned title known as supercargo, and he can not plead ignorance of the law.  Mr. and Mrs. Gilchrist have not been engaged according to the provisions of the Merchant Shipping Act. They have not been engaged or employed at all. As a preliminary point, and a point of law you will have to produce some cases and something to show that a person outside the actual employment of a seaman, which is a well-defined class, is entitled to be ignorant of the law as laid down in section 124.

   His Lordship - I think, Mr. Browett, you must show in the strictest manner that these two persons were employed in accordance with the Merchant Shipping Act, for if they were not they have no claim against the ship though they may have a claim against the owner or master; but not against the ship. It is a question of proof who they were and what they did.

   Mr. Browett - I think the best thing to do would be first of all call Mr. Gilchrist himself or the Captain.

   Clarence Raymond Gilchrist was then sworn and examined by Mr. Browett as follows:

   Mr. Browett - What were you on board the Amarapoora? - I was supercargo.

   Mr. Browett - From what port? - I was on the articles from the 23rd of September 1897 until I left the ship in Shitao on the 26th or 27th of June. I forget the exact date but it was the 26th or 27th.

   Mr. Browett - Have you at any time during that period acted as purser on board? - Yes, I acted as purser from the paying off of the last purser in Yokohama.

   His Lordship - Before that you were on board along with a purser; was there a purser on board as well as yourself? - There was a purser on board.

   Mr. Browett - Under what circumstances were you employed on board the Amarapoora as supercargo? - I was employed to go out to the vessel at San Francisco and relieve the last purser, Mr. Ward, from England.

   His Lordship - Where were you on the 23rd September 1897? - I was on board the Amarapoora in San Francisco. I relieved the purser there and we shipped another. On the voyage before she had a purser and a freight clerk on board. I signed on as supercargo on 24th Septemver,1897.

   Mr. Browett (showing witness a letter) - Is that your signature? - It is. It is also on the articles. I signed on in the presence of J. B. Wood, the purser.

   Mr. Browett - Why did you not sign on before a Consular officer at San Francisco? - There was no time.

   His Lordship - So you were in San Francisco for at least five or six days before the ship left - in fact you were there ten days - and why did you not have time to go and get yourself properly signed on before a Consular officer? - The Articles were not opened until the 21st September. The chief engineer signed in just before me, a day or two before she was ready for sea the articles were opened, and then at first I was undecided whether I would go in her or not because it was not settled whether she was going to Comax or Vancouver or Departure Bay. The chief engineer did not sign on before a Consular official. Had she gone to Vancouver it would have been necessary for me to go by train there.

   Mr. Browett - That was the real reason. I fail to see how they could have signed on if there was any doubt as to where they were going.

   His Lordship - There was no doubt as to the fact that the ship was going, and if he was going in her I fail to dee why Mr. Gilchrist behaved in a different way from the rest of the crew.

   Mr. Browett - He was supercargo of the vessel and he had to attend to the final arrangements about the coaling.

   His Lordship - The other man, the chief engineer, signed in irregularly also but the fact was logged. Mr. Gilchrist might have signed in as well when you reached Yokohama or Vancouver.

   Mr. Browett - The only distinction between these men is that Mr. Flanagan, the chief engineer, is mentioned in the official log, but I maintain that does not improve his position in any shape or form. I do not admit that the Act requires that an entry should be made in the log in the way in which it has been made here.

   His Lordship - So far as I remember it says it is the captain's duty to make such an entry.

   Mr. Browett - There is an entry among the "list of crew" to which I wish to draw your attention. With regard to this it is never signed.

   His Lordship - Certainly it was to be signed. It is laid down most distinctly under s. 239(5) of the Act of 1894.

   Mr.  Browett - This entry under "list of crew" in the official log is to such an entry as would require to be signed by the captain and supercargo. The list is in the handwriting of the captain which is equivalent to his signing it. In order to support  my conclusion I will draw your attention to the log, on nearly every page of which there is a printed note which says "Every entry in the log-book required by the Act to be signed, must be signed by the captain and mate," I contend that those pages in which this note appears are the pages which are required to be signed by the master but not such pages as this headed "list of crew" on which the note does not appear. 

   If the Act required this page to be signed by the captain then I contend that this note should be here at the foot of it, and the fact of the note being absent shows that that page does not require to be signed by the master. (To witness): You can tell the Court the reason for not signing on was -

   His Lordship - We did not settle that point about not signing on at Yokohama. I said I thought from what I saw in the log that Mr. Flanagan did go before a Consular officer there and sign on. See from the articles - I that so? - Or perhaps you will find that it was before a Customs Officer at Vancouver and not at Yokohama.

   Mr. Browett - I shall see my Lord. (To witness); You thought you had done all that was necessary? - Yes, Sir.

   Mr. Browett - That is, of course, pecuniary interest; the interest of an owner of part owner? - No. Sir.

   Mr. Browett - And you are acting for J. W, Adamson under a power of attorney? - Yes. This (document produced) is the power of attorney. It was given to me to come out and look after the ship when it was known she was going into the Central American trade, and the gentleman who had been acting as purser wished to go home.

   Mr. Browett - I propose to put in some correspondence to show that Mr. Gilchrist has no interest in the vessel, and I gather from the Registrar's report that there is some objection to be raised to my appeal, on the ground that he is a part owner.

   His Lordship - Don't you think you had better stick to the point whether he was employed on the ship or not? He may have a claim in personam but we can leave that.

   Mr. Browett - My learned friend says he is going to contend that Mr. Gilchrist acted as owner and was therefore not employed on the vessel.

   Mr. Wilkinson - I am going to say he cannot have been a supercargo or a purser or a steward because I am going to prove he acted as owner.

   Mr. Browett - Under that power of attorney, which is very full indeed, he is quite able to do things which an owner might have done, had he been present to do them.

   His Lordship - It does not matter whether he was owner or part owner or not, because unless it can be shown he was employed as a seaman he has no claim against the ship.

   Mr. Browett (to witness) - What duty did you do on board after you joined? - When I arrived at Tacoma I arranged about freight ad lading of cargo and the employment of a freight clerk in addition to the purser already on board.

   His Lordship remarked it seemed an extraordinary thing that a ship carrying railway sleepers should have a purser and steward and supercargo and stewardess.

   The witness said that though they had no passengers that voyage they had accommodation for a large number.

   Mr. Browett - That was altogether a question for the owner. It was for him to decide what hands he would employ.

   His Lordship - That is what we have to see. If they were employed bona fide for the purposes of the ship you must show what was the work for them to do on board. Otherwise it is suggestive of fraud.

   Mr. Browett (to witness) - What else did you do in your capacity of supercargo? - I made out the store lists for the fresh voyage and took them ashore with the purser and got him the stores, and when they came on board I checked them and saw to the stowing away of them.  I then had the bunkering of the ship to attend to.

   His Lordship - But all that is the kind of thing that could be done and is usually done by the agents on shore.

   Mr. Browett - A supercargo is often carried I believe to do agents' work. The Amarapoora was what I suppose you would call a "tramp?" - She was rather of a better class than the ordinary "tramp."

   Mer. Browett - You consider that you carried out your duties as supercargo and that you were necessary to the ship? Absolutely necessary to the ship.

   Mr. Browett - And that you were appointed by the owner? - I was appointed by the owner, under power of attorney.

   Mr.  Browett - And that you signed on the articles? - I signed on the articles to replace the old supercargo. On the voyage generally I attended to the consumption of coals and when we got up to Shitao and went ashore I did a little of everything. I helped to get the cargo out and sent away the junks and engaged labourers to discharge the cargo.

   Cross -examined.

   Mr. Wilkinson - Mr. Gilchrist, you say that in Yokohama you did various business such as arranging for coals and repairs and stores. Were there agents on shore for the vessel? - No, Sir.

   Mr. Wilkinson - Did you in Yokohama ever state publicly that you were the owner? - Certainly I stated that I represented the owner once in the Court at Yokohama. The Consul said he understood the owner was in Court and I stepped forward and told him that I was not the owner but that I represented the owner; and I then went with him to his room.

   Mr. Wilkinson - And as far as the public knew you went into the Judge's room as the owner of the vessel? - No, I do not think I did.

   In the course of further cross-examination witness said - I have known hundreds of cases where people were shipped on like I was. It is quite a common thing.

   Mr. Wilkinson - But have you ever known a case where they did not go ashore at the next port and put it right? - I know nothing about that.

   Mr. Wilkinson - I am going to call evidence to prove that you did not do work as supercargo, and that you were introduced to persons as the owner of the ship, and acted as owner throughout; and there is an entry in the log in which you are referred to as owner. Is it not a fact that you and Mrs. Gilchrist complained of some of the crew being riotous and drunk and they were logged for it on your complaint as owner? - I never opened the log book until a day or two ago.

   Mr. Wilkinson - The complaint is "calling the owner and his wife abominable names." Now was there any owner on board except yourself? - There was no one on board except myself.

   Mr. Wilkinson - Did not Mrs. Gilchrist, properly enough, sit at the head of the mess-room table; did she not preside at the meals on board the Amarapoora? - She sat next to me and opposite the Captain. When the officers were sober enough they messed at the same table with the Captain.

   Mr. Wilkinson - Did Mrs. Gilchrist ever soothe the woes of the Captain or nurse the crew when they were ill? - She had taken beef tea and so on to one of the engineers who was recovering from illness. She considered it her duty but I did not think it was her business to assist in nursing people on board.

   Mr. Wilkinson - There is a letter, referring to the ship headed "Gilchrist & Co." - Witness - You will notice please that the initials are not mine. I was not the firm. It was my father's firm.

   Mr. Wilkinson - Did you not come out in the same capacity as the man who wrote that letter - managing owner? - Most distinctly not.

   Mr. Wilkinson - Who fixed your rate of wages? - Mr. Adamson before I left, or Mr. Varley. I forget which. I had a written agreement and have sent home for a copy of it.

   Mr. Wilkinson said his legal point was one arising out of the last answer of the witness. It must be obvious to the Court that whatever the witness was on board he was not in the position of a seaman whose contract was in the articles, for the witness had a written agreement with the agents at home.

   Captain William David Cameron was sworn, and examined by Mr. Browett. - You were master of the Amarapoora? Yes.

   Mr. Browett - How long have you been a master? - About 18 years.

   Mr. Browett - Will you explain how Mr. Gilchrist was signed on? - As far as I know he was intended to be signed on as supercargo and Mrs. Gilchrist as stewardess, but there was some delay and he was not signed on in the ordinary way, as when he came on board the ship was cleared and I had taken my articles on board. The night Mr. and Mrs. Gilchrist came on board I signed them on the articles after clearing and that is where I considered my duty ended. We went to sea and in the course of time I looked at my articles and saw Mr. and Mrs. Gilchrist as well as Flanagan, the chief engineer, had signed on board. I discovered it when I came to make out my wages book. Until I was questioned at Yokohama I did not know anything was wrong.

   Mr. Browett - You are satisfied that they earned and are entitled to their wages? Yes.

   M r. Browett - As a matter of fact they have carried out their respective duties to your entire satisfaction? - Yes. I had served under Mr. Gilchrist as owner for several years before, and that was the reason why I treated them different in fact to what I should have served other persons; very different, in fact, to what I should have served an ordinary stewardess or stranger. That is the explanation of that. Mr. Gilchrist was not regarded by me as the owner, and as written to me some time ago by Mr. Varley, the owner, I understood that he had no money whatever in the ship.

   Mr. Browett - Have you had correspondence with him? - Yes.

   Mr. Browett - And is this letter (produced) in his handwriting? - yes.

   Mr. Browett - You have given both Mr. and Mrs. Gilchrist certificates of service on board? - Yes.

   His Lordship - I don't think this course is throwing any light in the case at all.

   Mr. Browett - I think it is direct evidence and it is necessary to prove my case. (To witness) - Is it necessary to have a supercargo on board? - Yes, in places where we have no certified agents to look after the general business of the ship.

   Cross-examined by Mr. Wilkinson - Where is your passengers' certificate, so as to carry these passengers Mrs. Gilchrist was going to look after? We don't require one so long as we don't carry more than twelve passengers.

   Mr. Wilkinson - Now about these entries in the log. Are you very careful about the log? - Do you keep it under lock and key? - No, I generally keep it in a drawer in my room when it is not in use.

   Mr. Wilkinson - Do you know whether anyone has tampered with it? - No.

   Mr. Wilkinson - Just look at it, hold it up to the light - what do you say about the wages paid to Mr. Bright? It is obvious that it was $40 to be paid in gold, and it has been changed by somebody or other into $80. - I think, now you remind me, that it was done by Mr. Hannen, a shipping clerk in San Francisco, owing to a mistake in entering.

   Mr. Wilkinson - Do you know the Mayamoa? Is not that one of the vessels Mr. Gilchrist owned? - Not in my time, or to my knowledge did he at any time.

   Mr. Wilkinson - Do you know what ship Mrs. Gilchrist ever served in? - No.

   Mr. Wilkinson - Do you remember that incident at Yokohama when Mr. Gilchrist said he was the owner? - He did not say so.

   Mr. Wilkinson - Now what were Mrs. Gilchrist's duties? - To look after the linen, etc. While we were at Yokohama there was a lot that had been specially bought that was stolen like a good many other things were. These were bought in bales to be hemmed and had never in fact been opened.

   Re-examined by Mr. Browett. - I suppose these bales were to be hemmed by Mrs. Gilchrist - Yes, she had done a lot of things like that.

   Patrick Flanagan was then called and examined by Mr. Wilkinson.

   M r. Wilkinson - Were you the chief engineer of the Aamarpoora? - Yes, I joined her at San Francisco on the morning of the 24th of September.

   Mr. Wilkinson - How soon after that did the ship sail? - About twenty minutes.

   Mr. Wilkinson - You know Mr. Gilchrist, was he on board? - Yes, I am quite certain I was the last man on board.

   Mr. Wilkinson - Did you sign on? - Yes, in the presence of the captain. He only put my name down and not the number of my certificate.

   Mr. Wilkinson - What is the number of your certificate? - 12,728. When we got to Vancouver the captain asked me for my certificate to take on shore to the Collector of Customs. I went on shore with him as I had had a little trouble with him about money for my wife. He said I had offended his owner and my owner. I was introduced to Mr. Gilchrist on shore the day before as the owner. He then looked at my papers and testimonials and said he was satisfied. That was in San Francisco.

   Mr. Wilkinson - On board did you ever hear him referred to as owner? - Always, and when I asked the Captain for money for my wife he always referred me to Mr. Gilchrist. Mrs. Gilchrist was always taken for the owner's wife and treated as such.

   Cross-examined by Mr. Browett - I think you stated just now that you were introduced to Mr. Gilchrist as the owner in San Francisco? - Yes.

   Mr. Browett - Are you quite sure of that? - Yes.

   Mr. Browett - You joined the ship late? - There was some talk about them afterwards not waiting for me, but as I was the only licensed man on board I suppose they thought better of it.

   Mr. Browett - How is this initialled by Mr. Wood if there was nobody else with him in his room when you signed it? - He must have done it afterwards; my certificate had to be taken ashore before the ship could be cleared at Vancouver.

   Mr. Browett - You were often under the influence of liquor when you were on board? - No.

   By His Lordship (by request of Mr. Browett) - The witness says, Mr. Gilchrist, that he was introduced to you in San Francisco? - Is that so?

   C. Raymond Gilchrist - I never saw him until he came on board.

   Mr. Wilkinson - I am quite satisfied. We have already had the reason that he (Mr. Gilchrist) was not put down in the log was that he was the last person to arrive on board; but now to shield himself from a more serious accusation he says he never saw Flanagan until he (Flanagan) came on board. There is no necessity for me to say much. I submit you cannot upset the Registrar's report and quite apart from that report I maintain that unless it can be shown that Mr. and Mrs. Gilchrist were engaged properly and did the work of their positions they cannot succeed, Further argument is unnecessary.

    Hi Lordship - It seems to me perfectly clear, that from the evidence adduced although they may have a perfectly good claim in personam against the owner or the Captain they have no claim against the ship. They have no claim in rem. I have no doubt of it so I must support the Registrar's report.

   I should like Mr. Gilchrist to know that although he may have a good claim against the owner or the captain he has no claim or maritime lien over the proceeds resulting from the sale of the ship.

   Mr. Gilchrist - If I have no claim for wages I have no claim at all.

   His Lordship - It is quite possible that you have a claim of some sort, but you do not come into the category of a seaman as defined by the section.

   The appeal of the Captain was then heard but dismissed in face of the decision in The Salacia, Lush. 545. Mr. Browett stated that he would not have brought the appeal but he did not find the case until too late.

   Mr. Browett made an application with regard to costs and His Lordship held that the supercargo's costs must be strictly taxed and go in with the seamen's wages. He refused costs in the two other appeals.

   Mr. Browett - I have had a vast amount of trouble in the matter.

   His Lordship - There was really no case.

   Mr. Browett - I was certainly of opinion that there was and if it had not been so I should not have spent so much time and trouble in the matter.

   His Lordship - I think you have made the best of your case, but the costs must go in with the seamen's wages.

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