1923-10-09 — Page 5

TUESDAY OCTOBER 9, 1923

MR. NEMAZEE PAYS.

SKIPPER'S CLAIM UPHELD

MASTER AND OWNER.

www.

AN INTERESTING JUDGMENT.

THE CHINA MAIL.

ship should order the hatches to be closed. He had the right to suppose that the Chief Officer, who was in charge,

four anchors in various ports. The plaintiff replied that in only one case was he ou anclior duty, and in

would do what was that case the loss was due to defec- five gear. It seems to me that it necessary for the safety of the is impossible at this distance of vessel. On this advice I concur time and without fuller know- My finding then on the facts as a ledge of the circumstances to come whole is that the defendant has to a finding of negligence or un-made out no case for the summary seamanlike conduct against the dismissal of the plaintiff. Judgment for the plaintiff in the plaintiff on allegations of this kind. artion brought by Captain J.I am confirmed in this opinion by Watson, formerly master of the s.s. Lieutenant-Commantler Hake "Gorjistan," to recover danniges R.NR. of the Harbour Office, for wrongful dismissal from Mr. whom the parties have agreed upon H. M. H. Nemazee was given in as Assessor and who has been the Summary Court this morning sitting with me. In any event, if by the Paisne Judge (Mr. Justice there was fault in the plaintiff, it Gompertz)

has long ago been condoned by the It is significant that cwners. plaintiff was promoted from 1st Officer to creatand of the ship after two anchors had been lost.

Captala Watson claimed the equivalent of three months' salary at £45 a month. There was a counter-claim by Mr. Nemazee for $2,600, damages for injury to the

Touching the Bar Gorjistan" alleged to live been

The next matter of reproach is caused by the plaintiff's negligence that in June, 1925, the vessel touch in colliding with the sus "Changed the har on entering the port of chow" at Swatow on June 12. Swatow. The plaintiff explains Mr. K. E. A. Webster appeased that no damage was done that the for the plaintiff and Mr. H. Cvessel was loaded as is customary

His

MacNaniara for the defendant.

The Judgment, Announcing his decision, Hanour said:

Tis is a claim for damages for wrongful dismissal. Plaintiff, who is a master mariner, was in com- and of the steamship" Gorjisten! of which the defendant is the

owner.

in that trade--that she was in

charge of local pilat who knew her draught and would not have taken her in, when he did, had he not believed there was sulfurient water. The plaintiff adds that the Swatow bar is a notoriously tricky and uncertain place.

My Assessor advises and cons O the 4th September cur in his opinion that there is no inst the defendant by his represen-thing her to show negligence or tative, Mr. Malonied Newazee,|| want of skill. Here again think gave the plaintiff oral notice, that condonation comes in. he was dismissed The defendant claims to be entitled under the 'contract in the Articles to dis- charge the plaintiff at 24 hours notice.

In my opinion he has no such right. This special contract in the Articles is made between the master as representing the owner and the rest of the ship's company. There is no such contract here between the masterand the owne, Then it is argued that if there is no express contract, there must he an implied contract to that effect between master and owner. Here again the argument fails.

Reasonable Notice Required, There is an essential difference in status between the master of a ship and his ship's company Varions duties are cast on hing by law he has responsibilities and powers which are not shred by his officers. It is impossible to implý against him a power of summary dismissal reserved to the owner! by express contract with the rest of the crew. It is, 1 thinks well settled that some notice that is reasonable nolite, is to h implied as a term of such contract or hiring as this. The case of Green v. Wright, C.P.D, 501 shows how in the absence of aclear contract to that effect the Courts Jean against a power of summary dismissal. This case has been followed more than once in.this Court-and judges sitting as a jury have held 3 mths to be a reason- able notice in the case of the mas ter of a ship.

Allegations of Negligence.

In the alternative the defendant contends that he was entitled to dismiss the plaintiff without notice owing to his negligence and want of skill. The case was brought on

Collision At-Swalow,

The next charge relates to a Collision in Swatow farbour by which the vessel suffered dinge 19

Set of her plates. The plaintiff's account of this is as follows: On June the 121, 1923, the vessel was due to leave fur Hongkong. Nopilot was available that day. The vessel was short of Coal and water-she hadjust enough of both to reach Hongkong. No coal was

obtainable in Swatow. Three boilers were leaking badly. The plaintiff had no definite in- structions not to come out without a pilos. He had been eight times in Swatow,

The vessel, was very light and after she weighed ancho, while swinging, a strong anchor set her town on another vessel The damage was trifling and the vessel proceeded on her voyage.

On these facts I put two questions to any Assessor:

f

(1) Was the plaintiff negligent in leaving Swarew withit a pilot?

Answer: No. In the absence of definite instructions not to

.

I concur with Assessor on both these points.

One further matter requiret men tion: Mr. Neinazce states that the plaintiff, reporting the damage, pointed at that by his action the

I

|

COURT-MARTIAL

JAPANESE OFFICER ON: TRIAL.

TOKYO, October 8. Amid the stress and turmoil of the last six weeks, no incident has The Determining Cause. I have hot forgotten that a train created as much sensation, which of actions, each in itself of no very has been considerably enhanced by serious importance, may in the the ban of secrecy hitherto impos- aggregate by cumulative effected, as the act of Captain Amakusu, establish the positive unfitness of a servant for his employment, but whose. trial by public court Martial this is not the case here. Nothing of opens this morning.

Interest in the trial is so great which the employer enn reasonably complain took place after June. that the Court is strongly guarded. The real determining cause of the disntissal is to be found in what while the Counsels are specially attended by gendarmes and plain took place on September 4.

clothes police.

of the crew.

Was

Enquiries by the friends of the victims, especially the child, as to their whereabouts led to the dis covery of the crime.

It appears that on September 2,

According to the preliminary the ship came into harbour. Mr.

lohamined Nemuzee came on report by the Military Judge. board On September 3, the plain which

published this tiff went to the office and presented morning Osugi, his wife, and seven-year-old nephew were for signature a cheque for the paya

to wait-I may say that in this 20. While under examination by a Mr. Nemuzee fold arrested on the night of September judgment throughout when I refer gendarmerie, sergeant, Amakasu to anything done by the defendant attacked each in turn and strangled 'judo"'hold, after mean done by Mr. Mohammed them with the Nemazee, who has apparently which their bodies were thrown. represented the defendant through down a disused well and their out-The plaintiff did not get clothes burned. any money, and ultimately he re- tared to the vessel. Atabout 5-30 Pa Captain Adams came on board and informed the plaintiff that his (Adams's) name was on the register as master, instead of the plaintiff's. The plaintif asked what this eat, and Adams replied that the office bad told him that the plaintiff The plaintiff knew all about it. ton opened a letter which had been handed to him by a clerk in the office and which had remained in his pocket until then. letter read as follows: Hongkong, 30 September, 1923. To Captain Gorjistan." Dear Wat on, 5.8. Sir, I am instructed by Neinazee to suspend you from command for the time being. Yours faithfully, (sd) H.M.H. Nemazce.

The Interview.

That

Mr.

An hour later the plaintiff went on shore and proceeded to the office. Mr. Nemazee was not in. Next moraing the plaintiff went again and was on the landing when Mr. Nemazec arrived. The plaintiff asked if he could see him and Mr. Nomazee said "yes."

The plaintiff then followed Mr. Nemazee into the office. There is some difference in the accounts of what exactly took place there. But the salient facts, as I find them, ara as follows:-

The plaintiff asked Mr. Nemazee

Amakasu's defence is that he was prompted by fears for the State if the extremists of Osugi's type were allowed to live. He stated that le killed the child in the belief that he was Osugi's son:-Courtesy Daily Bulletin.

HOME FOOTBALL.

LONDON, October 8 In the Football Association Charity Shield, played at Stamford Bridge to-day, the Professionals defeated, the Amateurs by 2 goals to ni:-Router.

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secured the exclusive distribut- ing agency for China of the follow mying steel products manufactured by was the TRUSCON STEEL CO.

ANDERSEN, MEYER & CO., leave without a pilot I consider perfectly properly and in LTD. as our distributing agents for that the plastiff acted reason-respectful manner what was the, China for our METAL LATHS. HY ably and in the interest of the meaning of the suspension was RIB, EXPANDED METAL FRO, owner. Being light, she would fit with pay or without? Mr. DUCTS, also for Corner Bends, Edge ard Channels have no trouble with the bar.

Nemazee did not answer this ques Protectors, Relled

in our (2) In ali e circumstances, istion-he either ignored it or he Inserts, as manufactured

the fact that a collision requested the plaintiff to wait. The plants in Youngstown, Ohio, U.S.A. -occurred definite proof of } plúntiff · repeated the question, TRUSCON STEEL COMPANY, negligence or unskilful still with perfect civility, but no

E. A. SILAGI. ness on the plaintiff

explanation was given him. He

General Manager for China. Answer: On the information avail- then repeated his question several Hongkong, 9th October, 1923.

able there is no such proof. times, ultimately, as Mr. Nemazec

says, raising his voice in a disres pectful manner and demanding a definite answer. Mr. Nemazee says :-I intended to transfer him to another vessel. But when he in- sisted on a reply. I said "you were ON September 1st, 1923. at short notice by agreement of the vessel saved a day--and saved also not dismissed before, but partics. No written particulars pilotage and that the plaintiff are you now." Now, in Bave been furnished, but the offered to make up the balance of í opinion, the plaintiff defendant gives evidence of the damage himself.

entitled 10 FL definite reply various matters, which he says I think that something of the to his question. Neither on the justify dismissal.

kind was said, but it was not, I 2nd or 3rd Sept. had he been told Some of these can be summarily think, intended to be taken--northat suspension was coming_ar disposed of. The allegation of was it taken seriously, nor has it what effect it would have. The failure by the plaintiff to maintain been acted on. I am unable to find letter is silent on the question of proper discipline among his offeers any definite athission of neglig pay. The plaintiff had gone up is entirely unsupported by evidence or askilfulness by the into the office on Mr, Nemäzee's ence and need not be further plaintiff. In any event I think invitation. I ser no reason why he considered. The allegation that the that here again if there was any should not have been informed in plaintiff disobeyed the orders fault there was also condonation. answer to his question how matters of the owner in the engagenient of

stood. Unreported Passenger:

Suspension without pay a shio's steward is disposed of by

would have put him in a serious. The next charge is of not re- lis. evidence. Another man, the porting to the Harbour Office position, which might last inde old st word, had been already the presence of passengers on the fately. There was no reason why signed on before the order reached ship. This is an offence minst he should acquiesce in such an t- the plaintiff.

Exceeding His Authority. the law of the Colony, for which satisfactory situation. The next charge against the the plai tiff was fined by the surprised that ultimately he raised plaintiff is that he ordered certain Marine Magistrate. The plaintiff his voice and insisted on a definite coverig for discharge pines to be sturs nt the charterer was on made for the ship with the he personally was not aware that board with his compradore, and that authority of the owner and that in the charter party had expired. It was not suggested to plaintiff in

so doing he incurred woucerssary

decision.

I am not

Lost Their Tempers. Mr. Nemazee has stated quite frankly that he believed himself entitled to dismiss the plaintiff at

tior is, that he pofated out the profited by the presence of the think, gives the key to his expense. The plaintiff's explanacross-examination thar, he had any time on 24 hours' notice. This. 1

passengers on board. Undoubtedly, demeanour, for he is not, as I should

courtesy.

necessity for these covers to the owner wine Captain Mercer, then acting Superintendent. 'Marine Captain Mercer agreed that they were necessary. The plaintiff had them made (1) of iron

referred him, he should have reported to his

as

owners. But here again I find that any offence against the owners had been condoard.

Typhoon Etiquette.

and (2) i Botavia for reasons which The next complaint relates to the

he gives. The work was done in absence of plaintiff from the vessel

November 1922. The bill did on Aug. 20th, when the red typhoon till signal had been holsted. The

nat

reach the

owner

i

say, a man in any way lacking in

That he treated the plaintiff on this occasion with soare- thing less than the consideration due to him is, I think, entirely due

to his misinterpretation of their

the end bothmen lost their tempers

legal relations. It is clear that in

but for this. I do not blame the plaintiff.

!

March 1923. The defendant plaintiff's explanation is that he Summary Dismissal Unjustified. anys (1) that the covers should have was suffering from dysentery and Mr. Neazee states that he had hren temporary structures of wood went on shore for treatment. He. (2) that in any case the work should waited on shore to receive an inattended to get rid of the plaintiff. But if he was content to have been done in Hongkongjection and, having received one retain his services it is clear that where rites are lower. Lagree that returned to the ship at 10 p.m. he did not suppose that the plain- the matter should have heen re- The black signal was not holsted iff merited dismissal. It appears ported earlier by the master. The till 353 am. next day, I agree that the Semen's Union had re- defendant warned the plaintiff in with my assessor, who advises quested that the plaintiff should Mirch that he had exceeded his that the plaintiff acted not un-not be dismissed. No doubt Mr. authority and cautioned him but reasonably and with due regard Nemazee intended to consider to the safety of the ship. The point their request, but ho did not the matter went no further. It is unnecessary to go into the was further made that when Mr. explain this in any way to the merits of the case as in my opinion Nemazee went on board the ves plaintiff. I am clear that nothing any breach of duty there may have sel her hatches, scuttles and cargo took place on September 4th that been has been condoned by the doors were all open. Now it justified summary dismissal, and I defendant

appear that the master left give judgment.__therefore........._in_ The Lost Anchora.........

the ship before the red signal plaintiff's favour for claim and The next point forthe defondant was hoisted. The "Gorjistan" would costs

come out of dry dock with every-

It follows from my finding that

is that from the middle of 1921 to

the end of 1922, while the plaintiff thing open. My assessor adviser the counterclaim is dismissed, with was either ist Officer or master of me that there was no reason costs."

the "Gorjistan," that vessel lost why the master before leaving the

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ANDERSEN, MEYER & CO. LTD.

Hongkong, 9th October, 1923,

TO-DAY'S ADVEḤTISEMENTS.

Q.

MAGISTRACY.

B

NOTICE IS HEREBY GIVEN that a Meeling of the Licensing Board will be held in the Council Chamber un FRIDAY, the 2nd day of November, 1923, at 12.15 pm. for the purpose of considering appli cat! na for

Publicans Licences, Hotel Kerpers' Adjuner Licences and for the year 1929-1924 under the Restaurant Keepers' Adjunct Licences Liquors Consolidation Ordinance, 1911.

Forms of application may be obtained at the Magistracy,

All applications must be forwarded to the Magistracy on or before Wednesday, the 17th day of October, 1923, and must be accompanied by a deposit of Eight Dollars. licences, and persona objecting to Applicants, for transfer or new such applications, must appear in person.

C. WILLSON, Secretary to the Licensing Board. Hongkong, 5th October, 1923.

WANTED.

WANTED-Six or eight-roomed Housdetached if pouble. Apply Box No. 1452 c/o China Mat."

WANTED.

WANTED Light Sidecar in any reasonable condition if cheap. Box No 1453 c/o "China Mail.

NOTICE TO CONSIGNEES.~

AMERICAN & ORIENTAL LINE.

From NEW YORK.

THE Steamship

"CHALISTER "..

having arrived. Consignces of Cargo by her aro informed that all Goods are haing landed at their risk into the hazardous and/or extra-bazardous Gorlowns of the Hungkong & Kowloon Wharf & Gedown Co., Ltd., whence delivery may be obtained.

No Claims will be admitted after the Goods bave left the Gorlowns, and all Goods remaining undelivered nfter 13th October, 1923, will be subject to rent.

All Claims against the steamor must be presented to the Undersigned on or before 21st October, 1923, or they will out lo recognized.

All brokan, chufed and damaged Goods are to bo left in the Godown", where they will be examined on 13th October, 1923, at 10 a...

by

No Fire Insurance has been affected. Bill of Landing will be countersigned

THE BANK LINE LTD,

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TO SECRETARIES OF CLUBS AND OTHER INSTITUTIONS.

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