Acting Chief Justice. Bauer r. Parrensos.
This was an appeal from a decision by Mr. J.C. E. Doug! trate at Shanghai.
(Messrs. Stokes and Platt) appeared for the appellant and Mr. F. Ellis (Messrs. Browett and Ellis) for the respondent.
Mr. J. H. Teesdale—The present is an appeal to your Lordship under Rule 99 of this Court on a Special Case stated by Mr. Douglas sitting as Police Magistrate on the 23rd and 24th of October last on the hearing of complaint preferred by one George William Babot, master of the Peninsular and Oriental Steam Navigation Company's ship Socotra, against Thomas William Staniforth Patterson, the surgeon of the said ship, charging him that, he, being a seaman lawfully engaged, was guilty of wilful disobedience to a lawful command of the said G. W. Babot. The complaint was dismissed by the Police Magistrate for the reasons set forth in the Special Case, which Special Case your Lordship, having it before you, will probably consider it unnecessary for me to read.
When your Lordship perused the Special Case you no doubt saw that there was practically one point and one point alone upon which the Magistrate based his decision, and my duty this morning is almost entirely confined to this one point also, which is, "Was the command given by the Appellant to the Respondent to transfer from the Socotra to the Bal-Jaarat, both ships of the same Company, a lawful command within the meaning of the Merchant Shipping Act, 1894, section 285, s.s.
At the hearing of the summons the facts were undisputed. The Respondent signed the ship's Articles, as he was by the Merchant Sh jing Act bound to do, and thereby constituted himself a member of the crew, was within the definition of the term "seaman" and made himself liable to observe the discipline of the ship and to the statutory consequences of not doing so. It is virtually unnecessary to elaborate the fact that a surgeon, carried by a ship under compulsion of the Act, rated on the Articles and is in the posi tion of an ordi ary seaman as far as his contractual position with his employer is concerned. (See Sees. 209 and 303, s.s. 4, and the note in Temperley on the Merchant Shipping Act of 1894, p 109).
In the ship's Articles which the Respondent signed was a clause which read, "That the crew or any member thereof may be transferred if required at any port and at any time during the period of this Agreement to any other vessel of the Company, wages, capacity and term of service being the same."
His Lordship—That is the clause added by a slip.
Mr. Teesdale—Yes, it is in the Court.
Mr. Ellis—I admit that is the clause. I don't know whether it was handed in to the police magistrate at the hearing of the summons, but I suppose that is the case as it was understood by the police magistrate and he sets it out very fully.
His Lordship—That particular clause was added, I understand, by a slip pasted Teesdale—And subsequently sign-
Mr. Ellis—That is admitted.
Mr. Teesdale resumed At the hearing of the summons no objection was raised by the Respondent that the wages, capacity and term of service Were not the same on the Ballarat as they were on the Socotra. His main contention was merely to the effect that at the time of signing the Articles he had si it. objected to the-clause, but had ultimately jo contract between the parties was therefore made and the Respondent performed his duties under it until he was ordered to transfer to another ship, command which he alleged was not of a nature contemplated by the Act.
Now is this contract"in any way contrary to statute as decided by the magistrate?
To- decide this question I, must refer your Lordship to the Merchant Shipping Act, Sects. 114, 115, and 116. Sect. 115 relates exclusively to foreign-going ships, the definition of which as given by Sect. 742 is "Every. ship employed in. trading or going between some place situate beyond the following. limits, that is to say, the coasts of the United Kingdom, the Channel Islands and the Isle of Man and the continent of, Europe between the River Elbe and Brest inclusive." Section 116 relates exclusively to home-trade ships, which in Section 742 are defined as "Every ship employed in trading or going within the following limits, that is to say:—The United Kingdom, the Channel Islands and the Isle of Man and the Continent of Europe between the River Elbe and Brest inclusive.
There can be no question therefore that the Socotra ana the Bellasrat are both sands both ships, is stated on their Arti-foreign-going ships, and that fact, as re-
cles.
These two clauses 115 and 116 therefore relate to and-cover every British.ship which voyages between the United Kingdom and any other part of the world.
Section 114: sots out in great detail the manner of signature and the contents of the Agreement with the crew—commonly called "the ship's Articles." It was therefore apparently the intention of the Act that this clause should govern the signature and contents' of every ship's Articles, subject nevertheless as to foreign-going ships to the provisions of Clause 116.
We then look to Clause 114 to find anything therein which may prohibit the transfer cause. We find nothing. sub-section 2, paragraph (3), "the Agree ment shall contain as terms any: regulations as to conduct on board, and as to fines, short allowance of provisions. or other lawful punishment for misconduct which have been approved by the Board of Trade as Regulations proper to be adopted d which the parties agree to adop\ Bub-section 3 states, "The ment with the crew shall be so framed as to admit of such stipulations to be adopted at the will of the Master and seaman in each case, whether respecting the advance and allotment of wages or other-
deal with it later on. some ise as are not contrary to len" As to this phrase contrary to law I propose to
Sub-rections 5, 6,7, 8, and 9 relate to "running - agreements" extending over two or-more voyages and provisions relating to them are allowed subject to certain conditions.
Sub-section 1-in section 116,. relating to home-trade ships, is the one on which the itrate's decision hinged. It read,, © ents may be made either for service in particular ship or for service in two or more ships belonging to the same owner, but in the latter case the names of the ships and the nature of the service shall be specified in the agreement." The Magistrate deduces from that clause that provisions for transfer may be inserted in Agreements with the crews of home-trade ships, ergo it was an intention of the legislature, although.unexpressed to prohibit them in. Agrecments with the- crew of foreign-going ips.
Now whether this actually was the intention of the Legislature or aot I sub-
Text read from the printed page and cleaned; old type leaves the occasional error.