CO129-168 - Sir Kennedy - 1874 [9-12] — Page 485

of the respondent must have been effected before the English Harbour Master.

Now a certificate which is only the formal evidence of the dissolution of such a con- tract, the Consul is bound to give, by the lawe of the United States, and he must set forth in it, certain particulare mentioned in Parsons on Shipping, page 85 note 5.

It would seem (uote 6) that under the Act 1840 U. S.. Statutes C. 48 Sea. 5, which regulates the shipment and discharge of seamen on the application of any master and mariner, the Consul may discharge such mariner, his certificate that the mariner was discharged with his own con- sent is conclusive of the fast unless fraud is shown. But that contemplates a joint application and it was never in this case pretended that the respondent applied for bis discharge.

A discharge may be voluntary by mutual consent or it may be involuntary on the part of the seaman when it becomes practi- cally a dismissal, wrongful or not according to the circumstances,

Under any circumstances a certificate must be given by the Consul, on the one hand to protect the master on his return to America, on the other hand to save the discharged seaman from the penalties of fine or imprisonment to which he would be liable in Hongkong under Ordinance 1 of 1802 Sec. VIII, were he to remain in the Colony 24 hours after the departure of his ship without a certificate,

In a certain sense the respondent volun- tarily submitted to the only process by which he could escape the penalties alluded In other words he voluntarily sub- mitted to a necessity imposed on him by the master through the Consul'a agency,

to.

The evidence in the Court on the Sum - mary trial proved beyond a doubt that there was no adequate reason for the dia- missal of the respondent.

There was then a breach of contract for which damages can be awarded. and I can.. not conceive that the jurisdiction of the Courts of this colony can be ousted because a Consul haa, with reference to the proceed- ings which form the ground of complaint, performed a preliminary and purely minis- terial ast which by the laws of the country be representa he was b¬tind to do,

The danger suggested by the learned counsel for the appellant that the confirma- tion of the judgment will be a death blow to all Consular authority is more imaginary than real.

Each case will stand on its own merits, and a good legal reason for discharging & seaman will supply the master with an excellent defence to any action brought against bim vexatiously.

I will only add that the words "duly discharged" which appear in the case, on which some stress has been laill, means nothing more than "discharged according to the forms prescribed by the laws of the Colony," viz. to use the words of the Or dinance (1 of 1862) "on a certificate from the Harbor Master or other person ap pointed to grant the same which person by Ordinance 6 of 1852, Sec 5, is supposed to be the Consul or Vice-Consul in the case of Foreign seamen."

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