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Colonial Cases

R. v. Hutchinson, 1875

[shipping, crew]


R v. Hutchinson

Consular Court
Wilkinson, 14 June 1875
Source: The Japan Weekly Mail, 19 June, 1875



Before H. S. Wilkinson, Esq., Acting Consul.

June 14, 1875

   ROBERT WILLIAM HUTCHINSON, master of the British steamer Calabar, appeared to answer to a summons of shipping two men in his vessel contrary to the provisions of the Merchant Shipping Act. The captain was summoned for ten o'clock, but owing to heavy weather was not able to get ashore before a quarter to noon, when the case was remanded until 2 p.m.

   Before the adjournment a conversation took place between the Acting-Consul and the captain on the subject of the victualling of some Benghalese, a portion of the crew, who refused to eat the ship's provisions. The Consul recommended that the Captain should settle this affair himself with the crew.

   At 2 p.m. the Court reassembled, when His Honour read Section 137 of the Merchant Shipping Act, under which Captain Hutchinson was charged.

   John H. Dare, chief officer of the s.s. Calabar, was sworn and deposed: I know the two China boys in Court. One was in my own service, and I believe the other attended on the engineers. My own boy came on board in Hongkong, where he was sent to me by some one on shore. I first saw the other boy on board, the night on which we left Hongkong, when the engineer had missed his watch. Both boys came up in the Calabar from Hongkong to Yokohama. I cannot say whether the names of these boys are on the ship's articles (produced.) They might be there without my knowing it. I do not know their names. The Chinamen on board have three names a day in average. The boy Atuk is the one who was charged with attempting to steal the chief engineer's gold watch. I had sent on shore for a servant to a place where it is usual to hire them. The proprietor sent me off two or three boys who did not suit me. When we got to sea I found the boy Ayeh on board, and employed him. I had seen him on board before then. There was no agreement between us. It is customary to take boys on trial in Hongkong. In the case of officers doing so, the captain need not know anything about it. I brought no boy from Singapore as I could not get one there. When the watch was lost in Hongkong I threatened the boy to hoist the police flag, and the watch was then recovered. The anchor was short at the time. When the watch was recovered I took no further notice of the boy. I am in general charge of the ship. I had no conversation with Captain Hutchinson at any time about these boys after out arrival in port, when I told him that my boy had robbed me of some money ($60.) He then told me that it would be advisable to prosecute my servant. I cannot say whether the captain saw him, during the voyage. The boy was useless to me, being the greater part of the time sick in his room. It is quite usual for officers on vessels from China to carry private servants. The engineers on board the Calabar had their own cook, inscribed ion the articles. They are paid so much money, "and find themselves." They also have their private boys.  Generally, in vessels from China each officer finds his own servant. I had no authority, but that of custom, to take my private servant on board. If I were prosecuted for doing so I would plead ignorance and custom. I have done the same thing for ten years, with the knowledge of the English and American Consuls at Foochow, Shanghai, Amoy, and elsewhere, the shipping masters at Hongkong and Singapore, and the English Consuls at Honolulu and San Francisco. I have asked the shipping master at Hongkong whether it was necessary to bring a private servant to the office to engage him and he said to me "No." The shipping master in Singapore also stated there is no necessity to put private servants on the articles, unless they are paid by the ship. The custom in Singapore, in forty nine out of fifty steamers from China, is that the private servants are not on the articles. I remember one instance when the servants of the chief engineer of the  Rainbow steamer summoned him, for wages, and the Harbour Master would not allow the claim because the boy was not on the articles. I know two companies of steamers, in which I was myself employed as mate, on four vessels of one company and one of another, in which I had to take the articles from the shipping office to the vessel, in none of these vessels were private servants entered on the articles. I concluded that Atuk was in the engineers' employ because I saw him waiting in their mess. 

   (The witness here entered into a long explanation of the duties of the boys and cooks on board, and the way they are paid.)

   The officers' boys are useless for the ship's purposes, though they may be very necessary to their masters. I did not consider that the Captain would be angry with me for employing a private servant, if he knew it. I gave it no consideration whatever. I acted as it is customary to act on vessels in the Chinese ports. In Yokohama, when I charged the boys before the captain with stealing he did not know who they were, and asked who brought them on board. I did not exactly know who were on the articles, not having charge of them, but I believe there were no other men on board not on the articles but the two now in question. (The witness appeared rather inclined to fence with the questions put to him, and at the close of the examination was rebuked   by the Acting Consul.)

   To Captain Hutchinson. - The ship lay in Hongkong two and a half miles from the shore, and in a very inconvenient position for quick despatch. The vessel went to Hongkong to coal, to discharge passengers, and to get extra firemen. All despatch was used to these ends. You did not authorise me to receive any men on board except on the last day of our stay, when you told me to take six Chinese sailors and six Chinese firemen on board.

   To the Court - When I charged the men with stealing before the Captain, he ordered me to take them on shore and lay a complaint against them. He asked me who they were, and I told him. As I am not acquainted here, and do not know the customs, I made a mistake, and instead of bringing them here took them to the Japanese gaol. The stevedore told me that was the proper place to take them. I may have told you on a previous occasion that I took them to the Japanese gaol because they were not English subjects. The captain did not tell me where to take them beyond ordering me to take them on shore.

   Atuk, cautioned, deposed through an interpreter as follows: I was head mess steward to three men on board the Calabar, which vessel joined in Hongkong in the service of the second engineer. I did not go to the shopping office there, nor did I sign either of the papers produced (the ship's articles.) Ayeh and I were engaged at $18 per month between us. I took Ayeh with me to help me. He came on board at the same time a I did, and did not sign the articles. On the voyage from Hongkong were worked all the way as mess room stewards. I remember the chief officer bringing me and the other boy ashore. The captain first tied out tails together. We were taken to the Japanese gaol, where I remained six days (five days English) going in on Friday and being brought out to appear here on Wednesday.

   To Captain Hutchinson - I did not see you when I came on board. The ship had left before I saw you. I did not know who was captain and I had no agreement with you.

   Ayeh, also cautioned: I was employed by Calabar.  I am now serving a term in the prison here. A Portuguese in Hongkong took me on board, where I was handed over to the chief officer. The Portuguese told me I should have $6 a month. On the passage up from Hongkong I worked as boy for the chief officer, who when we arrived here took me to the Japanese Gaol from the ship, with my hands in irons. The other man who was brought ashore with me was not ironed. I stayed five days in the Japanese gaol, after which I was brought here, and then sent to another prison, where I see no man and do not know who has charge of me. The man in Court (Constable Hedges) took me there. A European gave me chow.

   To Captain Hutchinson - I did not see you when I was engaged.

   This closed the case against the Captain, and the Acting-Consul read to him a section from the Act, to the effect that the onus of proof that the men were properly engaged rested with the captain, and that it was not for the Crown to prove that they were improperly engaged. His Honor mentioned this, so that if the captain made his ignorance of their engagement his defence, he might not be taken by surprise at the decision it might be the duty of the Consul to arrive at.

   Captain Hutchinson, in defence, submitted that the section under which he was charged did not apply to his case, as he had shown by the mate's own testimony and that of the others. He had no knowledge whatever of the men being on board. He had neither seen them on shore nor on board, and he emphatically denied all cognisance of their engagement, nor the fact of their being on board the Calabar.

   His Honour, in giving judgment, said that he found that the two men were employed on board a ship of which Captain Hutchinson was master, and that their names were not upon the articles. He then called attention to the 15th section and then read section 769 which defines the manner, place and times in which men shall be engaged on board. The defendant, said his Honour, admitted that these men were not engaged according to the provisions of the act, but held that they were engaged under special circumstances. As His Honour understood him, he (the captain) denied that the men were seamen in the ordinary sense of the act. But his Honour ruled that the were seamen, and that it was undoubtedly the infraction of the act that the men were employed as these men were should be upon the articles. The act was framed to meet such a case as this.

   Through the men not having been on the articles serious consequences have happened. The chief officer committed the error of taking them to the [Sai???] instead of the Consulate, and but for the good services of the Japanese officials much more serious results might have occurred. 


   His Honour then referred to the evidence of the chief officer, who, he said, had stated that large numbers of men were employed in the same way as these had been, and while he did not believe that the officials in the places mentioned by the witness counted it as a contravention of the Act, he still believed that the system complained of did exist, and that it should be put an end to. 

   Commenting lightly upon the apparent fact that had the captain used more diligence he would have known that he had men on board not on the ship's articles, and having questioned whether even if he had known he would have entered them thereon, to which the captain said that he did not know himself whether he would have done so or not, His Honor concluded by saying that he considered a contravention of the Act had been committed; but that the case would be met by a nominal penalty. The captain would be fined $1 and costs in one case only.

   Captain Hutchinson gave notice of appeal.

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