4
SHIPMASTER'S CLAIM.
1
CASE
THE EYESIGHT
PLAINTIFF WHONGFULLY DISMISSED. BUT JUDGMENT ENTERED FOR
DEFENDANTS,
In the Supreme Cours on Saturday morning, the Chief Justice (Sir Hrary
•Goltan), gave judgment in the cape, of Kettlewelle, the China Navigation -Co,
It took Sir Henry three quarters of un hour to read his judgment.
THE QUESTION OF HOME LEAVE.
After letting out at some length the terms of the Agreement of service slated April 5th, 1919, and certain agreements between the defendants and the Chins Const Officers' Guild, and an award nade as to the result of certain arbitra- tion proceedings between the defendanta and the Guild, dated July 18th, 1917, His Lordshiji said --
This award datis with questions of rates of pay and rates and conditions of prusion, but the only portion of it which la my opinion is material for the pur- poses of this case is one which deals with dhe payment of gratuities.nod is in the following texIDS : ---
THE HONGKONG DAILY PRESS," MONDAT
It now becomes necessary to consider in detail the evidence given by the medical witnesses in his caas on the sub- ject of the eyesight of the plaintiff for it is on the opinion expressed by their Medical Officer, Dr. Hurston, as to the defective nature of plaintiff's eyesight, that the defendants dimnissed plaintiff, and now seek su nest his claim for damages, for, wrongful dismisant.
THE DAMAGES.
As my fadinga involve the proposition that the defendants were not justified in dismissing the plaintiff from their service on the grounds put forward by them, it now becomes necessary for me to consider the question of what damages the plain- tiff is entitled to recover.
تا بیسی
in the event of:-
APRIL 20TH, 1925
(a) The agreement being terminated by reason of ill health or incurable illaces; or, (b) the plaintiff being desirous of returning to England at the end of the original period of three years for which the agreement was entered into;
And in either case the plaintiff returns immediately after termination of the agreement, the defendants are. to pro-. vite him with a free second-class passage home
defendants that it was so intended, I am It might be argued that as plaintiff nos asisfied that defective eyesight is desired to return to defendants' service an incurable illness" within the medu.and was wrongfully dismissed by them, ing of the agreement. The only cash is entitled to compensation for the losï sited in support of this is ----Inhabit of opportunity to earn this. leave. But ants of Bucknell, 3 E, and B.387 in which the answer to that contention appears to it was held that incurable blindness was me to be that there is no contract on the sicknessa within the meaning of 9 and 10 part of the defendants to continue his Viet. C.68, S4, but that case was a settle-employment so as to give him the op ment cas and does not appear to me to be of any assistance in construing this portunity of carning, and enjoying the His Lordship having reviewed the evid-provision of the agreement. There is the benefits of this home leave, once given by Dr. Harston, Dr. Morri further point that the question of the
3-4386.80 being the agreed amount of son, Dr. Aubrey, and Dr. R. A. Belilios, Porrison na the medical officer of the de- to England Paragraph 1 of the agree was referred to Dr. the cost of a free second-class passugu plaintiff's sight of Shanghai, proceeded to say: "
This closes the evidener of the scientific fendants, that he found there was no witnesses called on behalf of the parties disease in plaintiff's eyes, and that itment of April 5th, 1918, provides that to this action, but the evidence of Capt. cannat properly be contended that a William Anderson, who is master of the certificate given by ona medical officer of La d'pocy, was taken on coronission and the defendants on April 19th, 1924, in adduced on behalf of the plaintiff. The relation to the plaintiff, can be upset by plaintiff served under Capt. Anderson second certificate given on April 22nd, from October 30th, 1924. to January 1st, 1921, stating that plaintiff's eyesight was 1928, a second and then as Erst officer, defective, but saying not a word about and the latter states that knowing the his suffering from an incurable illness. former bail been dismissed from the ser- An regards this issue also, my finding vice of the defendants on account of an must be in favour of plaintiff. alleged effect in his eyesight, he paid particular attention to plaintiff when. performing his duties on the "bridge.
The defendants, by their letter of July Capt. Anderson states that he found the
10th, 1934 (B5 10) offered to provide plaintiff's eyesight was quite right and
plaintiff with such a passage but he re- that he was able to perform all a bridge
fused to accept this offer and the defen- officer's duties such as picking up, and
dants argue that he consequently has lost. Should a master, officer or engineer taking dipping, compass bearings of
his right to a passage. But plaintif has) had to rein in the East to prosecute he permanently incapacitated. for fur- lights at fall range, picking up land in ther service in a Company ander his daylight. and yessefs and bents without A large number of authorities were his claim for wrongful dismissal against certificate, through no fault of his own, lights, and taking stellar elevations cited on both sides, and I shall now dis-the defendants and, in my opinion, the and before qualifying for a pension, beleven unger, unfavourable conditions, cuss such as throw light on the questions loss of this free passage to England is shall recsivė a sum equivalent to one
As I have already stated, defendants which I have to consider in this case, la due to and arises naturally from, the month's pay receivable by him at the dismissed plaintiff from their service in effect, counsel for the plaintiff contended action of the defendants, in wrongfully time of his retirement through being sa consequence of the report of Dr. Harston that plaintiff was entitled to compensa- dismissing him. I, therefore, find that incapacitated by the number of years as to the defective character of his eye- tion for the loss of all benefits accrued, plaintiff is entitled to recover damages. service he has completed with the fam sight and they seek to justify this disor which would have been received by him in respect of this loss, and I award the pany (leave and for sick n be ree-inissal on two grounds. The first is that but for his wrongful dismissal; and also sum of $386.80 to him on this claim. koned us weistice,”)
the agreement of April 25th.. 1919, for the for the difficulty that will be met by the 4-Compensation for loss of five years' It may be well to deat at this point employment of the plaintiff was nmde on plaintiff in obtaining employment as service towards the rarning of a pension the basis and condition that the plaintiff good as that from which he was wrong which plaintiff was prevented from with the question of the admissibility of
ertain evidence tendered on behalf of should continue fit to take charge of a full Lordship discussed the cases cited i wrongful dismissal. As I have already
dismissed.
qualifying himself for by reason of his defendants by which it, was sought to ship's bridge and that on the date of the
itter of dismissņu,. i.m., June 17th." 1924 to him in the course of the arguments stated there is no express contract on the prove that the practice followed in res
part of the defendants to continue plain- pret of the grant of bome, leave, to officer Flaintif had becoue fit to do so. by and said:
It appears to me that the authorities tiff's employment so as to enable him to was conditional in each case on the officer son of his defective sight,
justi turning to the service of the alefind-read suramarised the evidence given cited on behalf of the plaintiE, so far earn a pension, and I can see no
such provision. ants. Mr. Jenkin," on behalf of the plain both sides, at this issue but before as they are directly in point, are against fcation for implying any tiff, objected to this widenes on the recording my finding on this first ground the main contentions raised on his be There is also the consideration that by I will mention verksin facts which appear half; and, in my opinion, these conten-the terms of the agreement itself it ground that the terms of the employment in me to be albeible from the evidence tions are shown to be unfounded by the could be terminated by three months
f the plaintiff were contain in' a com-
authorities produced on behalf of the de-notice on either side; and it is admitted peted agrement in writing and that in this case:-
(a) Prior to the dismissal of the fendants. The result of these cases, to by plaintiff's counsel that if consequently extraneous exilene, on the intentions of the patios was at admis-plaintiff, nautard of vision to which put the matter concisely, would appear months notice had been given under the officers in defendanta' service must con- to be that the cause of action arises from agreement, no claim in respect of pen. sible. But ne I have stated the do forart, bad been laid down. As a matter dues notice not having been given ansion could have been made by plaintiff ments other than the agreement of April
5. Compensation for the disculty of ath, -1919, are not complate in themselves of practice it would appear that the de- the damages recoverable are limited to and it is only possible do gacher what fendants had been satisfied, on the the loss naturally and reasonably flowing getting employment as good as that from which plaintiff was dismissed by the de The meaning of these other documents original engagement of the plaintiff as from the absence of such notice.
Hartley . Herman, 9 L.J.Q.B., 173, is Fendantx I think the decision of the in by reference to the conduct of those well as of the other officers when they affected by them, and I have, therefore, from time engaged to serve also an authority for the propositice majority of the House of Lords in Addis on their ships, with the certificate of that where by the terms of the contract it. The Gramophone Company, Limited, allowed evidence bearing on wonduct in be given. The major part of the evid Competes and of Trade, which may be determined by a stated notice, the supra, disposes of this claim finally
required that holders of such certificates damages which may be recovered are 6-Loss of benefit to his health from ence on this point will be gathered frou should pass an examination as to their limited to the wags which would have the six months' leave on full pay which the examination of Mr. M. Young,
but the plaintiff contends he was entitled, to get the kea! Manager of Messra Butterfield Powers of vision; and in fact the officer been earned during that period; and Swir, and from the documnats which who was substituiell for plaintiff in com-person dismissed must meek employment on the termination of his A yanrs' ser mand of the s.3. Hunne was not examin-and the actual amount recoverable by vice with defendants, "As I have held be produced. In A circular dated January 18, 1914. (G.M...). which edy the medical officers of the diefeed-in is the amount of such wages less any that plaintiff was not entitled to any
ante as to his eyeight..
remuneration he has received in respect such leave, this claim must
also fail' purported to grant six months' lease on
:(b) am satisfied, on the evidence of of say fresh employment obtained by Even if he had been entitled to auch half pay to officers in defendants' en- ploy, and was issued by Mowrs, Batter Capt. Ennes, for the nasous have him (Reed v. Explosivos Company, 19 leave, I think this present claim could not have been supported as compensation deld and Swire, it was expressly sintediren given, that if plaintiff had pass-Q.B.D., 964).
ad the Board of Trade examination on Manubens . Leon, nspra,' would also in respect of the loss of such leave would that this leave would only be graded to aferrs intending to retien to the service April 20th, 24, he would have been appear to support the contention raised have clearly covered loss of the benefit
on behalf of the defendants" as to the to be derived from taking the leave. of the defendants. This senilition also appoined to the end of the 3.8. appears in M.Y (1.M. 1:5 and non on April 91st, 1991, anti roking principle on which damages for wrong-
M.Y.B, and defendants contenid that further would have been done as regards ful dismissal are to be assessed.
itating his powers of vision, this evidence, as well as their general practice na deposed to by Me. Young makes it clear that, with one exception they have consistently enfor this con- dition. The only exception is that if the case of Mr. J. Lewis, 3rd engineer of the ss. Tenn, whose engagement was te
ninated in 1929 by. notier., and who was granted leave on full pay in the very
which I need not refer in detail.
I have
(c) The plaintiff is in possession of a Camificate of Competency which qualifies him for appointment to the command of my ship of the Merchant Marine sailing under the Brish dag
His
theme
I have found as a matter of fact that
plaintiff was not permanently incapaci tuted at the time of his retirement, and consequently must hold in defendants' favour that this claim fails.
THE FINDINGS.
I, therefore, find for the plaintiff for the following amounts:--
(1)48.86 in respect of three months" salary in lieu of notice, after deducting the amount earned by plaintiff during the currency of the notice;"
(2) #558.50, damages in respect of his The defendants have brought into Court the two several sums of $1,265.93 and 8064.20 and plead that these amounts are more than sufficient to satisfy the plaintiff's claim. I think that this plea is made ait and that after allowing for the aggregate amount of $33.75, found to be recoverable by the plaintiff, a balance of $1,595.47 remains in favour of the defendants."
By paragraph of the Statement: of Claim as amended in the course of It is further to be observed that there is the bearing, plaintiff claims, alternatives. nothing in the agreement between they, that, if he became permanently in“ plaintiff and the defendants in this case capacitated, which he expressly denies, which expressly binds the latter to con- he is entitled under the award of July tinue, the former in their employment sa 18th. 1917, to which reference has bees that he may be enabled to obbtain such the plaintif on behalf of the defendants, leave, and on the principles laid down in
(d) Thr. Morrison, who first examined advantages as pension rights or homemade, to the sum of £150. The defend ants plead that they tendered this amount to the plaintiff and bring it into roused in it to take charge of a Hamlyn. Wood (1891) 2 Q.B., 488 and Court, but they go on to say that their shige, and in this opinion he is supported Rhodes. Forwood 1 A.C, 255; I do not liability for this amount is subject to the Bacial circumstances of his ease. to by Drs. Aubrey and Risiitios who were sew how i should be justified in implying condition that at the time of his retire-
it was urged on behalf of the plain-called on behalf of the plaintiff Dr. any such provision in this case.
incapacitated officer. tiff that the Guild ever admitted the Hurston stated that plaintiff did not I think that the principles on which Iment the plaintiff was a permanently limitation placed by defendants on the come up to the stands of vision re-mast decide the amount of the comper grant of home leave, and the case of aquired by the defendant company," but sation recoverable by the plaiali may Mr. Hibbert was brought forward in up as I have pointed out, there was, at the be deduced from the cases to which I port of this staternent. By their lettere of Dr. Harston's examination of have expressly called attention.
Counsel for the plaintiff puts forward if June 18th, 1920 (GIM. F.S.) the Guild the plaintiff, no standard of vision laid claimed, on behalf of Mr. Hibbert, that down by the defendants. it will be ob-his claim under the following heads, and 1 he would have served five years and served that each of the four medical propose to discuss these heads in the wn months on the termination of his gentlemen called as witnesses differ in the light of the authorities to which I have
gagement, he was entitled to nine rules gained from Snellen's test, and referred:
I ser no grounds on which I should ac
1-1960, being three months' salary ⠀ ths leave on half pay; and that no qualification should be made as to his cept Dr. Haraton's results in preference lieu of three months' notice of termina tion of his engagement as provided by warning to the defendants service at to thon of Drs. Aubrey and Betilios,
(e) Capt. Anderson's evidence is not paragraph of the agreement of April the end of this period. By their letter
June 30th, 1920 (G.M.Y:9.) Messrs that of a scientific expert, but he is a 25th, 1919. I hold that plaintiff was Batterfield and Swire reiterated their practical seaman and he gives good prae- entitled to three months' notice of the position on this point, and the matter tical reasons for the opinion he expresses tormination of his agreement, or salary loss of a free passage to England;
that the plaintiff is thoroughly competent in lieu thereof. As has already appear then appears to have been dropped to perform the duties of a bridge officer.ed, the plaintiff was given ano mouth's After a careful consideration of the docu- The onus of satisfying me that plain notice of the termination of bis employ
ut bearing on this question, and of the practice which has been followed in tiff's eyes am so defective as to render ment and during that month received granting home leave to officers in de him unfit to take charge of a ship's from the defendsats his appropriate pay fendants' employ, I have come to the bridge in por the defendants, and in up to and including July 10th, 1994; no conclusion that defendants Bever in fact my opinion they have not discharged that question arises, therefore, as to any com agreed to grant home leave to officers ous, and my finding on this issue muat penention payable to plaintiff in respect
be for the plaintiff.
of pay for this first month of the period except on condition that they were re
There is a second ground put forward of legal notice under his agreement Lurning to defendants' employ; and that
by the defendants which is based on the From and including July 15th to the defendants' contention with regard this matter must be upheld. No clear agreement of April 25th, 10in. By para termination of this legal period, and and distinct agreement on the subject graph of that agreement it is provided afterwards, plaintiff was employed as a chief oficer in the Wo Fat Shing Com arean ever to have been reached by the that in the event of the plaintiff's re- Guild, and Mears. Butterfield andra home being rendered necessary dur-pany at a salary of $220 per month in Swire, and I am of opinion that the the continuance of his engagement, stead of $321.43, which was the rate pay. grant of six months leave on full pay in the opinion of the defendants' medicat able to, him by defendants, and the is in the nature of a concession to which officer, by ill health, or his illness being amount payable by defendants, under defendants were entitled to attach such of such a nature as the said medical this head must be reduced by the officer shall consider incurable, the
amount carved by plaintiff daring the conditions as they thought proper.
agreement should be treated as terminat period in question. Under this head I ed on the date the plaintiff shall have find for plaintiff in the sum of 4 for been informed of the decision of the period from July 11th to 14th (both in- ~. As I have said, plaintif entered de defendunta or their agents on the ground clusive), during which he was unemploy
Tendants' service in July, 1919, and ser- that the reedical officer considered theed, at the rate of $11 per day; and is. ved on their ships as Beccad and First return home of the plaintiff necessary the sum of 32.68 being the difference in Officer and as acting Master; and it is by reason of ill-health or that his illness respect of two months pay between rate. After the judgment had been delivered, conceded by defendants that he was in was of an incurablo natura; and defend at which he was finid by defendante and Mr. Eldon Potter said that in so far as avory way a competent and trustworthy ants raise the argument that the dofee that at which he was paid by the Wo Fat the coats of the issue in plaintiff's favour oficer. So much so that his dismisal tive aight alleged by Dr. Hurston to exist Shing Company (total $16.88).tf wish to impose on Kettlewell, and they were concerned; the Company, did not by the defendants arose out of steps is an incurable illnem, and that as, the
191,500.17 being the amount Laken with, a view to his appointment to medical officer of the defendants is made salary which plaintif would have drawn would waive their right to the costs. The the command of the Hunan, ship the judge as to whether the plaintiff is if he had been granted six months leave China Navigation Company had fought Belonging to the defendants. Desiring suffering from an incurable illness or on full salary, as plaintiff contends be the case merely on principle, and they that the plaintiff's eyesight should be not, the matter je concluded by the should have had after five years' com- did not wish to penalise him. tested before he was actually appointed, certificate of Dr. Haraton of April 25th, pleted service with the defendants For: Mr. F. C. Jenkin with Mr. Elsley Captain Innes, the Marine Superinten. 1924. It think it is clear both from the the reasons I have given, I hold that it Zeitlyn (instructed by Mr. G. K. Hall alent of the defendants, directed him to phraseology of this, certificate and the as a condition of bomo leave being Bruttou) appeared for the plaintiff, present himself for examination by Dr. evidence in the case that this certificate granted that an officer should continue Capt. Kettlewell, and the defendant Com Morrison who was a member of the firm was not intended to be given under parain defendants' service; and that as plain-pany was represented by Mr. Eldon af Medical Officers employed by the de graph 1 of the agreement of April 9th, tiff has not so continued he is not entitled Potter, K,C. (instructed by Mesers. Fondants.
1010. Assuming even in favour of the to recover anything under this head.. Johnson, Stokes and Mastor).
WRONGFUL DISMISSAL
"...
With regard to the form of the judg ment, I think
(1) Judgment should be entered for the
-defendants;
(9) $83.75 should be paid out of Court
to "the plaintiff;""
(3) $1,596.47 should be paid out of
Court to the defendants; (4)The plaintiff should have the costs of the action up to the time of payment into Court;
(5) The defendants should have the general costs of the action from (that) time, and the plaintiff should have the costs of the issues found in his favour
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