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Colonial Cases

Wardrop v. The China Navigation Company, 1898

[ship's crew]


Wardrop v. The China Navigation Company

Supreme Court for China and Japan
23 June 1898
Source: North China Herald, 27 June, 1898




23rd June.

Before Sir Nicholas J. Hannen, Chief Justice.


In this case Mr. H. P. Wilkinson appeared for the plaintiff and Mr. Stokes (Messrs. Johnson, Stokes and Master) defended.

   The Petition and Answer of the above named plaintiff shows as follows:

   [1.] The plaintiff is an Engineer holding a British Board of Trade Certificate as First Class Engineer.

   [2.] The defendants are a British Incorporated company carrying on business as ship owners at London, Shanghai and elsewhere.

   [3.] The defendants are indebted to the plaintiff in the sun of $288 balance of salary due for services rendered to them as Chief Engineer of the steamer Paoting prior to the 3rd of May,1898, and the defendants have refused and still refuse to pay the same.

   [4.] On the 3rd of May,1898, the plaintiff and defendants entered into an agreement in writing by which it was amongst other things stipulated that the plaintiff should serve them in the capacity of Chief Engineer of their steamship Paoting for a period of four calendar months from the said 3rd of May and in consideration of such service the defendants promised to pay to the plaintiff the sum of $280 per month and during the continuance of the said agreement one-half of such salary to be calculated at the rate of three shillings and four pence, sterling, as the equivalent of one dollar and the balance at the rate of the day.

   [5.] In accordance with the said agreement the plaintiff entered upon the said service in the capacity and upon the terms aforesaid and continued therein until the breach of the said agreement.

   [6.] On the 20th day of May,1898, the defendants wrongfully and without any just or sufficient cause dismissed the plaintiff from the said service and refused to retain the plaintiff therein for the remainder of the said term.

    The plaintiff therefore claims from the defendants (1) $288 - due for salary as aforesaid and (2) $2,429 - damages for wrongful dismissal, and the plaintiff prays for such further or other relief as the nature of the case may require.

   In answer to the said Petition the defendants say as follows:

   [1.] They the defendants admit the truth of the allegations contained in paragraphs 1 and 2 of the Plaintiff's petition.

   [2.] In answer to paragraph 4 of the Petition the Defendants deny that they refused to pay to the Plaintiff the sum of $288 therein claimed but on the contrary say that they made up the account of what was due to the plaintiff, checked  it with him and handed him a compradore order for $430.29  which he accepted but he subsequently returned and left the said compradore order at the defendants' office and the defendants further say that they have paid into Court with the filing of this answer the said sum of $430.29.

   [3.] In answer to paragraphs 4 and 5 of the petition the defendants admit that such agreement was entered into on behalf of the defendants with the plaintiff, but it was entered into by the Captain of the s.s. Paoting with the plaintiff. The defendants have not yet seen the precise terms of that agreement but they believe the plaintiff has not set out correctly the amount of wages to be paid to him and until the return of the Paoting the defendants will not have an opportunity if seeing the said agreement. The Paoting is expected to arrive at Shanghai on or about the 22nd day of June instant.

   [4.] The defendants deny the allegations contained in paragraph 6 of the Petition and say that before the 20th of May last (when the defendants informed the plaintiff that he was to consider himself out of the service of the defendant company, the plaintiff while on board the s.s. Paoting had been guilty of gross acts of insubordination, had assaulted the master of the said vessel, and had refused to obey the orders of the defendants.

   Mr. H. P. Wilkinson, in opening the case for the plaintiff, said that this was a case brought by his client, Mr. John Wardrop, who was a chief engineer, and he brought the action to that Court as a Court of Common Law and Equity against the China Navigation Company., Ltd., as his employers, for damages for wrongful dismissal.

   Mr. Wardrop held first class certificates and before he came out here was employed on most important work by John Swire & Co. the largest owners in the firm of China Navigation Co. Previous to that he had been employed at Greenock in the construction of vessels for Her Majesty's Navy, arriving here with high-class recommendations. He came out to Shanghai on the strength of a minute of agreement signed by John Swire & Co. managers of the China Navigation Co. On arriving ere he signed an ordinary form of agreement for the engagement of seamen with the local managers and joined one of their ships, which voyaged up and down the coast of China. He was first associated with the Wuhu, being afterwards transferred to the Singan, after some disagreement with Capt. Janieson, and whatever the reasons were for that disagreement, he was transferred to another ship in the same company, the Singan. The chief officer of that ship was named Smale, and Mr. Wardrop suffered at his hands insults and threats anything but what should have been meted out to him as chief engineer. Matters came to a head at last and the China Navigation Company, through Mr. Watt, the Superintendent Engineer, asked him and his fellow engineers of the Singan, who also had ground for complaint, to state in writing the circumstances attending these difficulties between them and the first officer. These reports would be put in.

   Again the China Navigation Company were perfectly satisfied of the circumstances of the case, and Mr. Wardrop was again transferred to the Paoting, and it was from that ship that he was wrongfully dismissed. Counsel said he should have liked not to have been compelled to refer to the conduct of anyone in the case, and if his Lordship would look at the pleadings, he could see that the case might be very much shortened, for on the 20th May, acting on orders, Mr. Wardrop came to Shanghai and had an interview with the manager. The result of this was that he was appointed to another ship, but he was taken ill and had to be attended by a doctor, who gave him a certificate that he was not fit to join the ship immediately, but the company refused to accept that certificate and peremptorily dismissed him from their service. He was prepared to shorten case, for he had a written document from the defendants stating that they had dismissed him because he refused to join this ship, but in their pleadings they said if was on account of certain conduct on the Paoting. If the defendants now say that the doctor's certificate was not sufficient, then the case is simply a matter of ten minutes, - a matter for damages. He hoped his learned friend would see his way to shorten the matter.

   Mr. Stokes said he was sure his clients would not be satisfied if he took the line his learned friend suggested. He knew it was a great pity that a great deal affecting the character of certain employees would have to come out, but the incidents which led to the dismissal of the plaintiff were such that he was sure he could not in justice to his clients act as Mr. Wilkinson proposed.

  Mr. Wilkinson: Thy say that while on the Paoting he was guilty of gross acts of insubordination, assaulting the master of the said vessel, and refusing to obey the orders of the defendants. It is for His Lordship to say whether they are not precluded from going into these acts of insubordination after they have stated quite another ground for his dismissal.

   His Lordship observed that they were bound by the pleadings, and having stated insubordination as the ground for dismissal they were entitled to try and prove it.

   Mr. Wilkinson said that with regard to the assault and insubordination it was alleged to have taken place at a time when the master was under the influence of drink, and the defendant was only doing his duty in defending himself.

   His Lordship again ruled that the defendants were entitled to try and prove what they included in their pleadings.

   Mr. Wilkinson then called the plaintiff, who went into the box and said that as an engineer he had the necessary certificates from the Board of Trade. He had been an engineer 18 years and before coming to China was employed as assistant manager at Messrs. Scott's of Greenock which built H.M.S. [Barfleur} and Centurion whilst he was working there. On leaving their employ they gave him a testimonial which he now put in as evidence of character and competency. He next joined Messrs. Swire & Co. and was engaged by Mr. John Swire to come out to China. He was associated with the Wuhu, the property of the defendants, and after making one voyage in her he was transferred to the Singan, where he acted as before in the capacity of Chief Engineer. 

   The chief officer of the last-named vessel was Mr. Smale, and until he joined everything went well. Smale caused trouble with himself and the other engineers, using abusive language to him. At the request of the Superintendent Engineer witness prepared a report for the company on the agreement, which was now produced,  as also reports made by two other engineers on the same vessel. 

   The result of this was that he was ordered to join the Paoting. He demurred but was told by the company that it made no difference which ship he was removed to, and he was told he must go to the Paoting. His objection to joining her was raised by certain bad reports concerning the vessel which had reached him. He went to the ship and stayed there some months. At Newchwang on the 3rd of May he signed off his old articles and signed the fresh ones produced which had never been signed off. There was nothing but unpleasantness on the Paoting, and had not been for years, ao he was informed. Before he had been on the Paoting a week he was grossly insulted by the Captain. On one occasion he ordered him to his room without any reason whatever, but afterwards sent for him and apologised. 

   At Newchwang some time last April he had occasion to report a quartermaster for not being a the gangway at night, when the Captain after using abusive and threatening language ordered him off the bridge. He threatened to kick witness and knock his ----- head off. Witness accordingly went down on the deck and invited him to come down and carry out his threats. On the 22nd May the Captain ordered steam; witness was not on board at the time but when he came aboard he asked the Captain if he wanted steam. He gave him no reply but ordered him away. Later on the same evening witness was on the bridge inspecting the steering gear, which was part of his duty, when the Captain ordered him away, pushed him away, used bad language and struck at him. He was obliged to protect himself and seizing the Captain he was about to strike him when the second officer came upon the scene. By his actions and conduct the Captain appeared to be under the influence of drink. 

   It was not at all an exceptional thing to see Captain Gyles in this condition. It was not his duty to report anything of this kind, but he advised the deck officers to do so. Afterwards an entry was made detailing the Captain's version of the affair. It was false, and he insisted on an addition being made alleging that the Captain struck him first and was under the influence of drink. This instance was on the 6th and not the 2nd of May. He had made a mistake in the date. Subsequently from what the Captain wrote to the company he received on the 12th of May a letter from the Superintendent Engineer stating that in consequence of the complaint of the Captain, which was the third from three different vessels,  he must ask him to send in his resignation. 

   He wrote to Mr. Bois of the Company asking for an explanation, which was followed at Chefoo by a request from an official of the company that he would leave the ship and return to Shanghai. He at once saw Mr. Watt, who referred him to Mr. Bois. He had a long interview with Mr. Bois when he explained what had taken place, and the following day he was ordered to go to the Woosung as chief engineer, but later was told to join the  Foochow, then at  Newchwang, captained by Mr. Smale, the chief officer who was on the Singan and with whom he had so much trouble. He wrote to the company starting that, under Capt. Smale, the arrangement was not likely to prove satisfactory; but Mr. Watt refused to see the reasonableness of his objection and would not alter his arrangement. At this time he was very unwell and under the care of the doctor. Dr. Cooper accordingly sent a certificate to the company to the effect that he was unable to resume his duties immediately.  Mr. Watt replied telling him to proceed to Newchwang, to which he replied that he could not owing to illness. The same day he received a communication from the company stating that he was to consider himself out of their service. He was not aware that any enquiry or investigation had been made by the company into the Paoting incident. He had always been under the impression that Mr. Watt was unfriendly towards him. 

   Dr. Cooper was called prior to the adjournment for tiffin. He deposed to having attended the plaintiff on the 26th of May. He was suffering from a general derangement of the alimentary system and he granted a certificate setting forth that he was incapacitated for immediate duty.

    By Mr. Stokes - The plaintiff manifested other complications and witness wished to have him under observation. Plaintiff did not express any objection whatever to going to sea.

   Plaintiff (cross-examined by Mr. Stokes) - He never refused to go to the Foochow. He thought it was a bad arrangement but he never refuses. With regard to the Paoting incident he had had no orders to get up steam and did not think it would be required until the following day. He did not get violent and excited when angry or he would not have held the positions he had. When he was up on the bridge to examine the steering gear he at once noticed that the Captain was under the influence of drink.

   George Edwin James Ross, said that when the trouble occurred at Newchwang last month he was second mate of the Paoting. He remembered the plaintiff coming on the bridge. The Captain was, he supposed, to a certain extent sober but four hours before he was not. He had seen Captain Gyles drunk on board more than once when the ship was under way and in sight of land.

   BY Mr. Stokes - At the time the plaintiff came on board they were getting up steam in consequence of the chain having parted. The Captain ordered plaintiff to go and stand by the engines. Some little time afterwards plaintiff came on the bridge and they commenced pushing each other; witness went down and picked up a pistol and threatened to shoot plaintiff if he did not go away. The Captain, thouhg he had been drinking, seemed in a position to give orders all right. The chain had parted as a result of the Captain's extraordinary manoevres some hours before.

   On resuming after tiffin Mr. Stokes asked leave to call the plaintiff to ask him with regard to the engine room rules, but His Lordship remarked that it was unnecessary, as they could easily be proved.

   Mr. Wilkinson said that he would like to say that the next two witnesses he was about to call were subpoenaed on behalf of Mr. Wardrop. If his learned friend cared to call them and allow him to cross-examine it would be nicer for the men and suit the purpose of the plaintiff equally well.

   His Lordship suggested that the witnesses should give evidence.

   William Macadam, Chief officer of the Paoting, was then sworn and was questioned as to whether he remembered that Captain Gyles was under the influence of drink on entering the port of Newchwang in Februuary last.

   His Lordship, interposing, remarked that it would not assist the plaintiff's case if he proved him to have been under the influence of drink fifty times, unless he was shown to have been in an irresponsible condition on this particular occasion.

   Witness continuing said in reply to counsel for the plaintiff that on the 5th or 6th of May he remembered the Captain coming aboard in a greatly excited condition, but he could not tell what was the cause of it. The chain parted as the result of heavy sheer caused by the quartermaster letting the helm go hard over.

   By Mr. Stokes - As far as he was concerned he had had no trouble with the plaintiff, but he believed he was a little hasty.

   This closed the case for the plaintiff, and

   Mr. Stokes opened the case for the defendant company. He said that after the fracas to which reference was made complainant came down to Shanghai and saw the manager of the company. He made the most urgent representation to Mr. Bois that he was in the right, alleging that the captain was intoxicated and strenuously asserting that he himself was an innocent man. Mr. Bois was inclined to give him another chance and it seemed that the only convenient ship in the ordinary routine of the company's business to which he could be transferred was the Foochow, but when ordered for duty on that vessel he refused to go on board. Mr. Watt would give evidence that he flatly refused to take up his duty in the ship and it was not until after that refusal that he presented this medical certificate. Upon that the company, through Mr. Bois, considered that they had had quite enough and he must go. He admitted that Mr. Bois had written to Mr. Watt giving as the reason for his dismissal his refusal to join the ship, but it was quite clear that apart from this they had good reasons for dismissing him.  He would refer the Court to Manley-Smith on the Duties of Master and Servant, 4th edition, page 150, and also to section 162 of the Merchant Shipping Act, which dealt with the question of compensation to seamen improperly discharged, which stated that in the event of a seaman being improperly discharged he should be entitled to receive from the master or owner, in addition to any wages that might then be due, compensation not exceeding one month's wages.  He thought therefore that under this section the plaintiff was precluded from receiving more than one month's wages.

   The defendants said that this order was a lawful order that was disobeyed, whilst the insubordination and fracas of the 10th April were additional reasons for dismissal.  It might be urged that with regard to the affair of the 120th Aril the conduct would have been condoned by the fact of his having been re-shipped, but Mr. Watt had no power   to discharge an officer without having express authority from the owners, he was obliged to re-ship him. 

   Then with regard to illness, no reasonable employer of labour would make that the sole reason of discharge, but he thought in the case of a seaman who was unfit to go to sea the effect would be the termination of his agreement. The only thing in the Merchant Shipping Act in regard to this aspect was where the illness occurred in the course of a voyage and the man had to be put on shore. This was section 158, where he was entitled to wages up to the time of the termination of such contract but for no other period. By parity of reasoning a seaman whose state of health was such as to unfit him to perform his contract terminated the contract, but the only thing he had been able to find with regard to that was in the laws of Master and Servant, so that he could only argue by inference. The inference seemed to be that the plaintiff's illness unfitted him for the fulfilment of his agreement, which brought the contract to an end. 

   In conclusion, he submitted in strict law that Mr. Wardrop was in such a condition of health that he could not proceed with his contract, which was terminated on that ground.

   Mr. Robert Watt, Superintendent Engineer in the employ of the defendant company, was called and said that the plaintiff was transferred from various ships in consequence of complaints from the captains. The complaint of Captain Jamieson was for using violent language and interfering with the deck business. When the plaintiff came to Shanghai in May witness told him, to go to the Woosung but as this would necessitate two changes instead of one he was removed to the Foochow. Mr. Wardrop wrote that in the interest of the company it would be better for him not to join the last named vessel and witness in an interview asked if he was to understand that plaintiff refused to join the Fochow, and he said yes. Witness made an entry in the diary to that effect in Wardrop's presence. Up to that time he had not made any reference to the fact that he was ill and unable to join the ship, but the following day he brought a medical certificate setting out temporary incapacity for duty. He had never had any ill-will towards Wardrop. In discharging him he acted on the instructions of Mr. Bois.

      Cross-examined - On one occasion he had noticed the plaintiff behaving in an excited manner. This was once about some stores which were not sent to him, because he was using more stores than other ships of the company of exactly the same size and build. With regard to the trouble at Newchwang the conduct of the Captain was not in his province, that was the duty of the Marine Superintendent.  The only reason plaintiff was sent to the Foochow was that it was the only convenient steamer and would only involve one change as the Foochow had no chief engineer, the second engineer being acting chief.

   His Lordship said it was manifest there was good reason to send him to this ship as there was a berth vacant; whether he ought to have considered Mr. Wardrop's feelings was a different thing.

   Witness, further cross-examined, did not know that there was any specific rule in the company that when a ship was moored the chief engineer should not come up on deck.

   In reply to Mr. Stokes - In a c ase like the one at Newchwang, with a broken chain and getting up steam he should expect the chief engineer to be below.

   Mr. J. C. Bois, Manager of the defendant company, was next called and spoke in regard to the correspondence passing between Captain Gyles, the office, and the plaintiff. The result was that Wardrop came to Shanghai and he asked him for an explanation. He then denied that the fracas was due to him alone and alleged that the Captain was drunk and had assaulted him. He was told that he would have to join another ship, and witness told Mr. Watt to tell plaintiff to join the Foochow. When he was informed that Wardrop had refused to go he gave instructions to Mr. Watt to discharge him for having disobeyed the instruction of the company.

   In reply to Mr. Wilkinson, witness spoke of the trouble plaintiff had caused in other steamers but he did not recollect having seen the report made at Mr. Watt's request as to what took place on the Singan. He did not intend to discharge Wardrop until he refused to join the Foochow, on the contrary he was going to hold an investigation into the incident with Captain Gyles. They could not carry on their business of they had to suit every engineer to every captain. The only thing they could do was shift them. It was always the engineer they shifted.

   Thomas Gyles, captain of the Paoting, was next called. He said he had been in the employ of the company 16 years and of which 14 had been in the capacity of master. Wardrop joined his ship, and he had to caution him about interfering with certain work of the first officer. At Chefoo on one occasion complainant was insolent to him and he ordered him to his room. On the 10th of April when plaintiff came on board early in the morning after shouting for the quartermaster he at once proceeded to witness' room.  Witness was asleep in bed when plaintiff woke him up, shouting out "Is this sort of thing going to continue?" He was very excited, used bad language and threatened to strike him. It was in consequence of this that he wrote to the company complaining of the conduct of the plaintiff. That was a correct account of what actually took place. 

   Coming to the incident of the 8th of May at Newchwang, the ship began to sheer a good deal and he ordered steam to be put on the steam gear. Shortly afterwards the flood chain parted and it was for the safety of the ship that he ordered steam to be got up. About one in the morning the plaintiff came aboard and shouted out something to him. Witness told him to go and stand by the engines. He went away, but returned in fifteen minutes and came on the lower bridge deck. He again ordered the plaintiff to stand by but he replied that he would not go for witness, and added, "Can you make me?"  Witness said he did not want to have anything to do with him, but if it was daylight he would have put him down. He used threats and eventually struck witness, whereupon the second officer came up and parted them. Plaintiff was very violent and bad tempered. The statement that witness was drunk during the time was entirely without foundation. With the ship sheering about in the manner referred to of course he was excited.

   Cross-examined by Mr. Wilkinson - There was nothing extraiorduinary in steering his ship in the way he did. He was merely looking out for her safety. With a strong tide in Newchwang river they often did that. He denied striking the plaintiff or making an attempt to do so.

   Walter John Miller said he was first officer of the Paoting. He had sailed with Captain Gyles before but had never on any occasion seen him the worse for drink. He had also sailed with Wardrop, who had a very severe temper and without the slightest provocation would cause a lot of trouble.

   Captain Smale said he had been seven years in the Company and as a junior officer served 19 months with Capt. Gyles. He never saw him the worse for drink. He had not the slightest enmity towards the plaintiff and if the last named had come to his ship the Foochow and done his duty no reference would have been made to trouble when in the Singan. He should say plaintiff had a very violent temper.

   Charles Chamberlain, second engineer of the Paoting, said the plaintiff was very quick-tempered and when put out got very excited. He would not call him abusive.

   This concluded the evidence, and the case was adjourned till half-past ten this morning, when Counsel on either side will address the Court.

   His Lordship rose at 4.60.

24th June.

   His Lordship resumed the hearing of this action at half-past ten.

   Mr. Wilkinson (for plaintiff) said: May it please Your Lordship- I have consulted with Mr. Stokes, my learned friend on the other side, and we have agreed with Your Lordship's consent to a judgment for the plaintiff on the pleadings, with the payment out of Court of the amount paid into Court as wages and damages, with no order as to costs.

   His Lordship - You accept that, Mr. Stokes?

   Mr. Stokes - Yes, my Lord.

   His Lordship - I think it is a fair arrangement; I regret very much that the case was ever brought into Court. No doubt there is a great difficulty in arranging a conflict of duty between chief engineer and captain, but in this instance I think it is most unfortunate that the case was ever brought into Court. I don't imagine that much blame is attached to anybody in connection with the case; at the same time I cannot say there is no blame attached to anybody. Therefore I think it is better that an arrangement of this sort had been come to and that the case has been settled amicably. I approve the terms you have suggested, Mr. Wilkinson, and there will be judgment, by consent, for the amount paid into Court, to be paid out of Court to the plaintiff as wages and damages.

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