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Colonial Cases

Pedersen v. Rowsell, 1899

[breach of contract]


 

Pedersen v. Rowsell

Supreme Court for China and Japan
Bourne ACJ, 4 August 1899
Source: North China Herald, 7 August 1899


 

LAW REPORTS.

Shanghai, 4th August

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

PEDERSEN v. ROWSELL.

   Judgment was given in this case in which the plaintiff claimed damages for breach of contract.  Mr. J. C. Hanson (Messrs Dowdall, Hanson and McNeill) appeared for the plaintiff, and Mr. W. A. C. Platt (Messrs. Stokes and Platt) for the defendant.

   His Lordship said - According to the evidence the defendant, a British Master Mariner, engaged the plaintiff, a Norwegian seaman, at South Shields, England, to serve as boatswain in the Chinese s.s. Girin on a voyage to China. The agreement was drawn up on the British Home-Trade Form and was signed by the plaintiff in the presence of the defendant and of a boarding-house keeper.  The agreement says:

"hereby agree to serve on a voyage from the Tyne to Port Arthur, and to trade to any Ports in China and Japan for a period of six m0nths;"

but the plaintiff denies that this was explained to him and says that he shipped on the understanding that he was to return to Europe in the Girin. 

   Between South Shields and Port Said - the first place at which the ship touched - the crew heard that the Captain claimed the right to discharge them at Port Arthur or any other place in China or Japan on the expiration of the contract period. On reaching Port Said the plain tiff and the rest of the crew refused to proceed on these terms and appealed to the British Consul, the defendant meanwhile attempting without result  to get the help of the Russian Consul. Then the defendant entered into a contract under seal, drawn up by, and executed before the British Consul by which he engaged to discharge the crew at Port Arthur and to pay their passage home to the United Kingdom, their wages to run until the date of their arrival in England. 

   There was no dispute until the ship reached Port Arthur when the crew claimed that the Port Said agreement should be carried out, refusing to work unless it were, the defendant stopping their food in consequence. The plaintiff stated that the crew now appealed to the agents on shore, - The Russo-Chinese Bank - where they were threatened with Siberia. In the end the Russian Admiral intervened; he advised the defendant to pay the crew off and to provide them with a passage to Shanghai. This the defendant did, taking from each a receipt which purported to be a full discharge in favour of the ship her owners and master. The plaintiff now sues the defendant for the cost of a passage from Shanghai to England and for wages while on the way.

   The s.s. Girin having been under Chinese flag and the plaintiff being a Norwegian subject, it might well be that Norwegian or Chinese law may have to be imported in regard to the form or interpretation of the three contracts - signed at South Shields, Port Said, and Port Arthur respectively - on which this suit depends; but for different reasons, which it would take too long to deal, I hold the English law alone ruled the form, the interpretation and the obligation of these contracts. 

   In regard to the South Shields contract I believe that the plaintiff did not intend to agree that - to use his counsel's expression - "he might be dumped down wherever in China or Japan the defendant chose, to find his own way home," and that not until the Port Said contract had been signed was there the consensus ad idem necessary to a binding agreement. The South Shields contract infringes the British Shipping Law, which all seamen seeking employment in England must be taken to contemplate, in two important respects:

   [1.] - in giving an unconditional right to discharge the seamen abroad, and

   [2.] - in not being witnessed by a public authority whose duty it would have been to ascertain that the seamen fully understood the terms. Both these provisions are for the protection of seaman, and the latter, at all events, is so general in Western States as almost to have the authority of international custom. An experienced master mariner like the defendant, who  deliberately disregards this custom and enters into an agreement with seamen in a boarding-house with the boarding-house keeper as the only witness cannot complain if such an agreement is viewed with great suspicion , and if any presumption of fact  that has to be made by a Court of Just8ce is against him. 

   However, it seems to me that that the conduct of the master and crew at Port Said, and before reaching and after leaving that place, goes strongly to show that the crew had not agreed to be discharged in China or Japan. I find therefore that the plaintiff did not know what he was signing at South Shields; the contract is therefore void for mistake (Forster re Mackinnon. L.R. 4, C.P.711).

   The bond signed by the defendant before the British Consul at Port Said was, the defendant pleads, obtained by duress. Duress in law is actual or threatened violence or imprisonment. There was no such duress here. It is not shown in evidence that the defendant seriously tried to ship another crew; he was only om shore about three hours. This bond and the South Shields contract read together put the crew in much the position they would have been in if the Girin had been a British ship, and the South Shields agreement had been made subject to the British Shipping Law. I find that this bond is valid and should be enforced.

   Counsel for plaintiff urged that the receipt given by the plaintiff at Port Arthur is neither a release nor accord and satisfaction. It is not a release for it is not under seal; nor, perhaps, is it valid as accord or satisfaction for there is no consideration proceeding from the defendant to the plaintiff, the defendant being under an antecedent obligation to provide not only a passage to Shanghai but to England and wages while on the journey. (Goddard v. O'Brien, 9 Q.B.D. 37. Foakes and Beer, H.L. 9 A.C.605).  But even if it be valid as accord and satisfaction, the evidence of Alex. Purvis, Chief Engineer in the Girin and a witness to the plaintiff's signature to the writing, shows that the receipt was not read over to the plaintiff, who was merely handed the money and directed to sign. 

   The defendant's conduct in starving the crew makes it impossible not to regard this receipt with suspicion. And here I think I ought in, passing to bring to his notice the fact that he is not, when employed in a foreign merchant ship, beyond the reach of the criminal law of his own country.  I find as a fact that the plaintiff did not intend to give a full discharge; and I hold that this receipt be set aside in so far as it might be taken to waive the plaintiff's right of action.

   Judgment for the plaintiff for the amount claimed with costs, which I assess at fifty dollars. 

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