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Colonial Cases

R. v. Lanceley and others, 1899

[ship's crew, disobedience]


 

R. v. Lanceley and others

Police Court, Shanghai
Burrows PM, 28 August 1899
Source: North China Herald, 4 September 1899


 

LAW REPORTS.

H.B.M.'s POLICE COURT.

Shanghai, 28th August.

Before E. H. Burrows, Esq., Police Magistrate.

R. v. LANCELEY, REED, BJORLING, JONES, VASSALLO, BORG, TABONE, FENECK, AND KAY.

   J. J. Lanceley, James reed, E, Bjorling, C. Jones, Mariano Vassallo, Mariano Borg, Ein Tabone, Francisco Feneck, and James Kay, firemen and trimmers of the British steamer Pilgrim, were charged with wilful and continued disobedience of lawful commands on the voyage from Port Said to Shanghai.

   Mr. E. Nelson, (Messrs. Johnson, Stokes and Master) appeared for the prosecution.

   Counsel on behalf of the master of the Pilgrim, stated that the nine men were charged under section 225 of the Merchant Shipping Act with being guilty of disobeying lawful commands and with combining together to disobey lawful commands contrary to subsections P., C. and E. of the said Act. The Pilgrim started on her voyage from Cardiff on the 3rd of May and on the previous day nine men, all Europeans, were engaged as firemen. The vessel was chartered for Batoum to load oil for China. At Port Said the men, who had previously behaved all right, complained of being sick and wanted to leave the ship. One of the number, namely, J. Lanceley, not being satisfied with the doctor engaged by the ship, demanded another. After the second examination he was ordered by the Consul to go on board and continue his work. Of the others one man was paid off having heart disease, and two men were sentenced to six weeks' imprisonment and were consequently discharged. Four other men were there engaged as fireman, making a total of eleven men in the stokehold. But for the desertion of one man there would have been twelve.

   Through the Red Sea the weather was good. Most of the men upon leaving Port Said were in a state of intoxication. At 7 p.m. on the 2nd of July, one of the men, whilst intoxicated, jumped over board into the Canal. The ship had to be stopped and the man was picked up by a boat. Through the Canal no regular watch could be kept. Arriving at Suez all the nine men, now charged, refused duty and were ready with their bags to get into the steam launch alongside. 

   In the Canal the engines were scarcely going round consequently the vessel, a large and valuable one, ran the risk of running aground. The Captain saw the Consul at Suez who certified he was to continue on his voyage. The Captain explained this to the men but they refused to work. The seamen had to go in the stokehold and assist firing. Had it not been for the assistance rendered by others the ship could not have proceeded.

   The Chief Engineer stated that owing to the men's refusal the junior engineers had to do the firing or the vessel's head of steam could not be kept up. On the remainder of the voyage they did their work fairly well although the steam was sometimes 15 lbs below the proper pressure. Feneck was useless in the stokehold consequently he was employed trimming coal during the day and needed constant watching. On the 14th of August Vassall and Feneck were ordered to trim coal and refused, they were therefore logged. Counsel stated that at 8 a.m. on the 21st August all nine men were ordered to clean boilers and perform other duties but they refused to work. They said they wanted to see the Consul. $100 had been expended by the ship in order to get the men's work executed.

   In reply to his Worship the Chief Engineer said he knew no reason why the men would not work; they seemed desirous only of getting out of the ship.

   Counsel stated thee Captain did not wish to press for a severe sentence. He asked that the men be severely reprimanded and that an entry be made in the log book to the effect that if the men persisted in refusal of duty they be severely punished at the end of their contract.

   In reply to his Worship the Captain said he never logged his men without he were compelled to do so. When he made an entry he always read it out to the offender and noted in the book the man's reply if any. Since he had been in port he had not made a note in his log book certifying the entries had been read out. At sea he had done so.

   His Worship showed that under Section 228 the Captain had by this omission committed an irregularity and the entries were therefore left to the discretion of the Court as to whether they were recognised.

   The Captain said he arrived at Port Said on the 1st of July about 11 p.m.; he anchored the vessel at 2.30 a.m. and went ashore on business, when the 3rd Mate followed him, with a chit from the mate that nine men had refused to work. On returning to the ship the men said they were sick and unfit for duty. He got a doctor for them. One man was discharged having heart disease. The others were logged for refusal of duty. Steaming through the Canal J. Reed jumped overboard. Stopping the engine endangered the navigation. They were very badly short of steam; the pilot complained about this. The vessel's speed was reduced to two or three knots. The mate reported that the men were in the forecastle drunk and that proper watch could not be set. At Suez the electric light was discharged. In the course of ten minutes all the firemen were at the gangway with their effects wanting to go ashore. Lanceley passed the remark he would not go to sea with the men newly shipped, and Bjorling stated if it meant his death he would not work. He asked the men singly and collectively if they would work but one and all refused. They gave no reason at all.

   In reply to his Worship the Captain said he could not say whether any of them refused duty through intimidation from the others. He went ashore and saw the commanding officer of the British man-of-war at Suez, who said, under the circumstances, he was justified in proceeding to sea and keeping those who refused to work on bread and water until such time as they turned to. The Consul gave the same advice.

   He then returned to his ship accompanied by the agent's clerk who interpreted to the Maltese what had taken place. The Captain was also informed that the Maltese fireman that they had nothing to fear from the Englishmen. Anyone guilty of assaulting them would be severely punished. The men made no complaint at all. They simply would not work and would not go in the ship. 

   He, after leaving Suez, called them on the bridge in the presence of the 1st and 2nd mates and asked them to resume duties but they refused. He then ordered them and, with the exception of James Kay who said he was not able, they again refused. He afterwards called the four Englishmen, Kay, Lanceley, Reed, and Jones to the chartroom and explained to them the seriousness of their offence. They commenced work the next day. At noon on the 5th the men were again exhorted. At 8 p.m. they still refusing two men were put in irons and kept in the chartroom and fed on biscuit and water. On the 6th of July the prisoners expressed their willingness to work and he allowed them to do so.

   The ship went along fairly well afterwards and he heard no complaint until the 14th instant when at the mouth of the Yangtsze Vassallo and Feneck refused to trim coal in the bunkers. For this wilful disobedience of a lawful command they were logged and fined 5 shillings.  The ship arrived at the wharf on the 19th instant. On the night of the 19th he read all the entries in the Log-book to the men. They said nothing, but demanded to go ashore to see the Consul. He told them he would on Monday appoint a time for them to meet the Consul; on the Tuesday. The men all recused to work. On the 22nd he told them if their charge was not justified they would be charged for the expenses incurred. At 8 a.m. on the following morning the men went ashore to see the Consul and were by him ordered on board again. He the captain had to pay substitutes to do their work. Latterly each time he read the entries in the log book the men turned round and walked off the bridge. The entries in the Log-book were absolutely correct. The only charges of ill-treatment he had received were not from the men, but from the ordinary seamen. The boatswain of the ship, who was paid off at Port Said, had been twice charged by the boys and he had severely reprimanded him.

   In reply to his Worship the Captain stated that no complaint of bad food had reached him, neither had they complained of hard work nor shortage of food. About three days after leaving Cardiff the men brought their morning hash aft and complained that it was insufficient; he ordered the steward to weigh it. It weighed five pounds and three quarters. The men were well fed; in addition to the Board of Trade allowance they got potatoes, butter, and fresh meat. He had no complaint regarding the food afterwards. As to mistime in the Canal two or three men had been mistimed, but that had been rectified.

   In reply to his Worship the Captain stated he had been a ship master twenty years and he had never had such an experience. As to debiting the men for loss incurred by appearing at Court in a losing suit he certainly thought he was right in doing so. He might, as anyone else, make a mistake. 

   The vessel was similar to others of that class in accommodation. He knew of no points of inferiority. The ship was equipped to Lloyd's requirements. The men's quarters were not protected from the sun by awnings; a recent Regulation of the Board of Trade demanded that any iron deck over the crew's quarters be sheathed with wood. His ship had a sheathing of pine three inches thick. He had spread sails over the forecastle to make the place cooler. He never inspected the crew's quarters, the Company's rules were that the chief mate should inspect them daily.

[One or two lines missing.]

  His Worship - Yes - under the Captain's supervision.

   N. F. Tobe, Chief Engineer, was then called. He stated the entries in his log-book were partly taken from the engine room slate and partly from his own observations. At Port Said four of his men left the ship without leave.  The first serious trouble was at Port Said. At 7.30 a.m. on the 2nd of July, the crew were all more or less drunk and he could set no regular watches. The engineers were on six-hour watches. There was a difficulty in keeping up the steam. At 7 a.m. on the 3rd of July there was no one in the stoke hold.  He had little time to spare, but he rushed forward and ordered Jones to the stokehold instantly. Jones said he was getting his breakfast and that he would not come. He then caught hold of him and dragged him inti the stokehold. He never struck the man, who ought to have been on watch from 4 a.m. He considered he had the right, in an emergency case like that, to call out any man whether he was on watch or not. 

   At Suez they attempted to go ashore in the steam-launch with their baggage. He knew of no ill-treatment whatever. His private opinion was that they were acting under the influence of drink. As to the food, he had never known men do aught by grumble. He could not say whether in this instance they were justified. The steward dealt out their stores under orders from the Captain.

   The Captain, in reply to his Worship, said the steward had no interest whatever in dealing out short allowances. He was also in exactly the same position, the owners supplied the stores.

   His Worship - Can you suggest any reason why the men wanted to leave the ship?

   Chief Engineer - None whatever. The ship is a little stiff to steer, and perhaps the men found the job was not quite so easy as they expected.

   The case was then adjourned to the afternoon.

      On resuming, his Worship drew attention to the fact that a large number of deductions of days' pay had been entered in the Log-book and that, at the end of the voyage, these would be rendered in the men's accounts of wages leaving them in a bad financial position.

   Counsel - The fines will have to be determined before a Court. If you think these men have committed an offence, you enter your judgment, but the question of fines will be determined by a Court at the expiration of the contract. Your judgment won't affect these fines.

   His Worship - My judgment may affect the fines. If you ask me to adjudicate I must take into consideration the probable actions of the other Court.

   Geo. Taylor, Chiief mate, stated his instructions from the Company were to daily see the forecastles were kept clean, which he did, and had then washed and sprinkled with carbolic when necessary.  As regards awnings he had sails repaired or spread over the forecastle.

   The men were then called, and on asking if they might be allowed counsel, his Worship informed them seamen were given every assistance, but in this case he thought he was able to look after their case sufficiently.

   J. Lanceley stated that when at Port Said he asked the mate for permission to go ashore to see the Consul on account of his health. He complained of kidney trouble. He saw the ship's doctor but was not satisfied so went to the hospital. Was taken by police. At the hospital he was examined and was given a note to take to the Consul whose clerk ordered him on board. The ill-treatment he saw Jones subjected to caused him to want to leave the ship. The Captain refused to visit him when petitioned.  He was unable to walk and had to be carried aft. He complained of insufficient food whilst in the sick room. Steward told him that he was not allowed to give more. On arriving in Shanghai he got a letter from his wife stating she had received no money. He decided to see the Consul on Monday in order to get his retainers. From the Consul he got no decisive reply. The Captain said he would fine him fourteen day's pay for one if absent from ship. The Captain logged him all he could and he felt he was working for nothing.

   Mr. Nelson - He is logged very little.

   Defendant informed the Court he had a  wife and two children, and the money order he received at Batoum had been stopped by the Captain at Suez.

   James Treed said that two or three days after leaving Cardiff he took the jug containing the firemen's breakfast and complained of a scarcity of food. He got pound and pint according to Board of Trade seal and he was unable to do the hard work required of him on that allowance. The Captain logged and fined him 10/- for jumping overboard in the Canal. The Captain allowed the sailors a tailor and gave them money, but they, the firemen, were denied these.

   E. Bjorling said that on the night leaving Port Said he worked below until 4 a.m. and at 6.30 a.m. he was called out to get up steam. The tubes were dirty and steam could not be kept up. At 8 o'clock the Chief Engineer came to the forecastle and kicked Jones on deck. He then told the Captain he wanted to leave the ship.

   Asked why he refused to work on arrival at Shanghai he said the Captain refused him the Monday leave to see the Consul. For the last three weeks of the voyage they had received little or nothing to eat.

   C. Jones said if they returned home in the ship they would have a dog's life. At Port Said he and the others were agreeable to go in the ship, but when the chief engineer assaulted him he made up his mind to go ashore. The food was something scandalous and not sufficient to sustain a man doing four hours down in the stoke hold. It was no use complaining to the Captain, he only made fun of them from the bridge. The forecastle was not a place to sleep in; it was full of bugs, and he had reported such to the chief engineer.  There were no awnings, and they had to sleep in the open air.

   M. Vassallo said he would not work because he saw the others ill-treated; he feared he would be treated likewise later on. The fourteen hours he had been locked up he had received nothing to eat.

   M. Borg said he did not wish to sail on the ship as he did not get sufficient food. He had to work eight hours below at a stretch. The engineer came into the forecastle and bashed all their plates and challenged the firemen to fight.

   R. Tabone said he signed on at Port Said as a trimmer, he had twice been compelled to work eight hours at a stretch.  When he asked for rest he was told if he did not go down he would be made to. At Suez he was kicked by the engineer and for that he refused duty. They could not even get as much water to drink as they wanted. After twenty-two days' work the Captain refused him money to buy shoes.

   J. Kay stated that three days after leaving Cardiff he went aft with the meat kid when the Captain got into a passion and tried to frighten them. Afterwards they made no complaints as they knew it was no use. Five of the crew then made up their minds to leave the ship. He would have done likewise only he had a wife and three children to keep. He admitted getting a little liquor going through the Canal but was not drunk. He saw Jones assaulted by the Chief Engineer. He then said he would try and get clear of the ship. He, with others, packed up his effects and went to the gangway stating he would go no further in the ship. After leaving the Red Sea the food gradually grew less. He had known himself whilst on watch unable to get a glass of water. From Borneo to port he barely got his pound and pint. On the Saturday after arrival the sailors were given money but the firemen were refused. The Captain stopped his allotment also. When he asked to see the Consul the Captain told him he could not do so until he, the Captain, was ready.

   F. Feneck, trimmer, said he had been continually ill-treated. The Captain refused him medicine. On one occasion he stumbled upon a heap of coal, and the Captain and mate spat in him, when at the time he could get nothing to drink and collapsed through exhaustion.

   The cook informed the Court that the men had plenty of food at the commencement of the voyage, but latterly the allowance had been greatly curtailed; not knowing the Act of Parliament, he could not say whether the men got their allowance or not.

   The Captain said he gave orders to the steward to give them the allowance according to the Articles and in addition to give them fresh soup, potatoes, butter, and marmalade. They had an unlimited supply of biscuits. He repeatedly asked the steward about the food and was always told no alteration had been made with the exception of the two or three days when the men were off duty. The stores are ample and as a proof of this he had not to buy any out here he having enough to take the vessel home.

   In summing up his Worship said the men had been guilty of wilful disobedience; the charge against their officers did not extenuate their conduct. He also heard with astonishment that the men's quarters were not shielded from the tropical sun by awnings and from what he had seen of Chinese and others he thought this was a most extraordinary state of things. He would confer with the Shipping Vice-Consul regarding the very heavy fines. The men are strongly cautioned and are ordered to go on board and resume their duties; and any continuation of their previous conduct would be at their own peril.

30th August.

   James Reed, E, Bjorling, C. Jones, Mariano Vassallo, Mariano Borg, Ein Tabone, Francisco Feneck and James Kay, firemen and trimmers of the British steamer Pilgrim, were again charged with wilful and continued disobedience of lawful commands, and with combining together to impede the progress of the ship.

   His Worship - You appeared here on Monday charged with wilful disobedience, and now you are again here on the same charge.

   Captain Walton, master of the Pilgrim, after informing the Court of the several entries made in the Official Log-book since their last appearance regarding their persistent refusal to work, said: I have already brought the defendants before you and they have been leniently dealt with by being ordered on board to work and that any fine should be adjudged at the termination of the voyage. The men returned to the ship and have been daily supplied with their usual food but have repeatedly refused to work, as per entries in the Log-book. My ship is now cleared for sea, but she cannot proceed as because of the refusal of these men to work she is unseaworthy. The vessel costs my owners $60 per day while lying idle. She is now chartered but may lose the charter which would mean incalculable loss. I have seen the Consul daily and have presented my Official Log-book to him for perusal and have acted on his advice in bringing them before you to be dealt with. I must remind you that the following men, James Kay, James Reed, and C. Jones had ample time to state any grievance before the Consul at Port Said, which they declined to do, and although professing to be sick became intoxicated and incapable of doing any work through the Suez Canal. I must request you on behalf of my owners to inflict the full penalty of the law according to the Merchant Shipping Act, by which you can imprison them for twelve weeks and fine them six days' pay for each day off duty.  The fines in my Log-book, which only cover the actual expenses incurred to the steamer, have been considered excessive, but they are much below the amount sanctioned by law for each man. In addition to the fines entered in the Log-book I have been put to an expense of $35 to bring these men before you your Worship and have paid my Counsel $55.  I trust you will allow these deductions and fines to be credited to my owners.

   His Worship - You ask for all the fines including the $100 entered in your Log-book for work done?

   Complainant - I ask for all the fines enumerated in my Log-book including the $35 and Tls. 55 incurred since your previous decision, namely, the aggregate of all the fines since the voyage commenced including six days' fine for each day they have been off duty. The account is much less than the losses incurred.

   His Worship informed the complainant that he had not gone into the question of   fines because he was specially asked by his (complainant's) counsel to leave it to be dealt with by the authorities at the termination of the voyage, and he did not now propose going into the question of any fines other than those imposed in Shanghai.

   Complainant - A fresh question would then be raised which would result in further delay to my ship.

   His Worship - You cannot expect me sitting here to go into the whole question of fines when I was specially asked by your Counsel, Mr. Nelson, not to do so, and was also asked that I should let them alone to be dealt with at the end of the voyage.

   Complainant -  So far as actual imprisonment is concerned it is of no benefit to me or my owners, neither have I desired that they be imprisoned. All these fines amount to considerably less than the losses incurred.

   His Worship - Can you furnish me with a detailed account?

   Complainant - It requires to be calculated.

   His Worship - Precisely.

   Complainant then stated he was prepared to forgo the fines such as 5s. for abusing an officer. His wish was only to reimburse the owners of the vessel for their actual loss. The detention of the ship cost $60 a day, an amount which it would be impossible to recover.

   His Worship - You cannot expect me to accept such figures blindly. I can only allow such sums as do not exceed the statutory amounts with which to reimburse your owners.

   Complainant - I will be satisfied with that and will abide by the Consul's decision under certain forms of reservation.

   His Worship - What do you mean by reservation?

   Complainant - I shall require that my owners are informed that the fines have not been imposed. It is not a personal affair, it is what my owners will require.

   His Worship - The question is what they will get and not what they require. I will award the sum to your owners as reimbursements provided they do not exceed the statutory amount. 

   As regards the offence what have the defendants to say for themselves?

   One of the crew informed his Worship that the reason he still refused  was because when complaining in the Consul's office of the insufficiency of the food the Captain remarked: "You will get a d---sight less in the future."

   His Worship - You men have evidently by your persistent refusal to work caused the owners of the vessel irrecoverable pecuniary loss. You have had every opportunity of proving a grievance, and on certain points I feel you have some, but it must be remembered that they do not justify your actions. Since you were told this, and that you wilfully violated the section 225, sub-sections C and E of the Merchant Shipping Act, under sub-section C I will sentence you to ten weeks' imprisonment, and under sub-section E to six weeks' imprisonment, both with hard labour and to run concurrently.

31st August.

R. v. FERNANDO.

   Peter Fernando, cook of the British steamer Avala, was charged with deserting from his vessel on the 11th instant. The vessel had left Shanghai and the Shipping Office prosecuted.

   Detective-sergeant Johnstone informed the Court that the prisoner went to the Captain-Superintendent of Police with a letter, when it was found that there was a warrant for his arrest, so he was taken into custody.

   Mr. E. T. Rivero, shipping office clerk, stated the prisoner afterwards signed the articles as fireman of the vessel, not knowing it was the ship he had deserted from.

   Prisoner pleaded sickness as the cause of desertion.

   A sentence of six weeks' imprisonment with hard labour was imposed.

1t September

R. v. TAYLOR.

   John Taylor, A.B. of the British sailing ship Crown of Germany, was charged with being absent from his ship without leave since the 28th ultimo.

   John McIlgorm, master of the Crown of Germany, confirmed the charge, and stated his vessel expected to sail next Monday, and that the prisoner had on and off been 25 days absent from the ship without leave.

   Prisoner was fined $5, given a week's imprisonment, and ordered to be put on board his ship when sailing.

R. v. RUBEN AND MICHAEL.

   Sassoon Ruben and Stephen Michael were charged with assaulting J. Bunder, silk dealer.

   Complainant stated that on the previous night he went to an Indian constable's house, and there he received a little drink.  Shortly afterwards the man Michael entered and asked him to visit his house. Immediately after this Ruben entered the house and by friendly words enticed him into theirs the defendants' premises. Five minutes later, they locked the door and then robbed and maltreated him. He was set upon by the whole family.  Complainant alleged that Ruben's real name was Jabbouri, and that he had served two years' imprisonment in Kobe.

   In reply to his Worship complainant stated they had stolen $10 from him in notes.

   His Worship informed the defendants the charge was a very serious one and it was necessary that enquiries were made.

   Detective-sergeant Glfillan asked for two days, and his Worship adjourned the case until Monday, the summons to stand over.

2nd September.

R. v. BALLANTYNE.

   David Ballantyne, late fireman of the British steamer Avala, and now undergoing imprisonment in H.B.M.'s gaol for desertion, was charged with larceny of goods to the value of $100 from H.B.M.'s Consulate.

   Detective-Inspector Armstrong stated that when the prisoner was brought to the Central Station and charged with desertion he had in his possession a tin trunk containing an artificial horizon and other articles. He had previously disposed of a leather case containing tools to a bar-tender at the Central Hotel.

    Mr. C. W. Campbell, Vice-Consul, identified the box and its contents, and stated he missed the things on the 28th of August.

   The Consulate compradore said he placed Mr. Campbell's trunk, etc., outside of his office in the corridor.

   Sergeant Bourke said he was in the charge room at the Central Police Station when the prisoner was brought in. He identified the box.

   Samuel Schwartz, bar-tender at the Central Hotel, admitted buying the leather case containing the tools for $6. He returned the things to the Police Station when they came for them.

    His Worship then informed the prisoner that the charge against him was one of larceny, and that if he pleaded guilty he would be prepared to deal with him in the Court, and the sentence would be six months' with or without hard labour. If he went before a higher Court, and before a jury, he would be liable to severer punishment, and it was for him to decide which course he would pursue.

   Prisoner said, in defence, that he met a sailor who asked him to go with him to the Consulate. He did go and was given a box to take away. The sailor afterwards sold him the box and its contents for $3. He also said had it not been that he was drunk he would never have got into trouble.

   His Worship remanded the case until Wednesday.

R. v. CAMERON.

   Richard Cameron, unemployed, was charged with being drunk and incapable. 

   P.C. 31 stated he arrested the defendant in the Seward Road in an incapable condition.

   Sergeant Aiers informed the Court that it was not the prisoner's first offence and that he was formerly in the Police Force and had been dismissed for not appearing on duty.

   Prisoner asked to be let off as he could get a ship and expected to sign on the Articles at any moment.

   His Worship dismissed the case with a caution.

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