1912-04-05 — Page 3

Page

STEAMSHIP OFFICERS'

AGREEMENTS.

IMPORTANT TEST CASE.

A case of considerable importance to the shipping community, involving a decision on the interpretation of agreements enter- ed into between shipowners and their offi- cers, was heard before Mr, Justice Goni- pertz yesterday in the Summary Jurisdic tion of the Supreme Court. The parties were the Indo-China Steam Navigation Company, Limited, and H. F. Robinson, of the s.s. Wing Hon, but formerly in the service of the plaintiff company. The plain- tiffs claimed for the payment of the sum of 8976.88 being monies due from the de- fendant to the plaintiffs under an agree ment in writing dated 23rd August, 1910 in the alternative the plaintiffs claimed as for the said sum of 8276.88 due from the defendant to the plaintiffs for money. Teut by the plaintiffs to the defendant; and in the further alternative the plaintiffs claimed the sum of $276.88 being money paid by the plaintiffs to the defendant at the request of the defendant.

Mr. E. Davidson, of Messrs. Hastings & Hastings, appeared for the plaintiffe, and Mr. C. A: Sutherton Russ, of Messrs. Goldring, Barlow & Morrell, appeared for the defondant.

Mr. Davidson-This case is brought by the Indo-China Steam Navigation Com pany against II. P. Robinson, and 1. am instructed to say at the outset that, the object plaintiffs have in bringing this action is to obtain a ruling upon the form of contract upon which it is founded. Plaintiffs have entered into a number of contracts with the officers employed in their steamers and there has been some doubt as to-

His LordshipDo I understand that the defendant is an officer in the plaintif company?

Mr. Davidson--He has been, by Lord, His Lordship-And is this the contract they make with their officers?

Mr. Davidson This is the contract they make with officers they bring out from England to serve on their steamers. is only a preliminary contract and the officers sign articles in the usual way when they join a steamer. In one or two cases officers have denied the validity of the agreement and the plaintiffs are anxings to get it settled. The statement of ingres- ment is perfectly good and binding.

"It is in the form of a letter signed by the defendant in which he agrees to enter the service of the Company as an officer at the monthly rate of £9 per month to be increased to £13 after six months' service, and the cost of the passage £23 88. paid by the plaintiffs to be refunded by the de. fendant at the rate of £3 per month for six months and afterwards the instalment to be increased in proportion to his in creased salary. That agreement had been admitted by the defendant, who also ad- mitted that his passage out on the Forc was paid by the plaintiffs. Defendant came to Hongkong in October, 1010, and signed articles on the plaintiff's steamer Onseng, on which he served for a year, but during that time he never paid a cent of the money due for his passage out.

Hia Lordship He served twelve months?

Mr. Davidson-Yes.. Plaintiffs did not

press for repayment of the money because defendant was a married man, though they did not know that when he came out. They felt that it would be a hardship to press for the money, but there has been no suggestion, nothing was ever said to indicate that the plaintiffs discharged de- fendant from this liability. As he had now left their employment and obtained service clsewhere they have brought this action to settle their rights.

His Lordship You say the agreement is that he should repay the money at the rate of not less than £3 per month for the

frat six aunths and if tris sudary be raised he was to pay more?:

Mr. Davidoon-Yes. The repayment was to be raised when his salary was in- creased from E9 to £13.

His Lordship He was to begin at £9 per month and go up to $137

Mr. Davidson Yes.

His Lordship—Has nothing been paid!! Mr. Davidson-Nothing at all. I will put Mr. Sutherland, the manager of the Indo-China Steam Navigation Company, in the box to prove that nothing has been done by the Company to waive their rights under the agreement.

His Lordship-The onus is on the other

side.

||

THE HONGKONG DAILY PRISE, FRIDAY, APRIL 5т¤, 1912,

Mr. Hus-I only admitted it saving all the articles which were signed before the just exceptions.

His Lordship--You agree to pay any thing that may be required for stamping

Mr. Davidson-Yes.

Cross-examined by Mr. Russ: You have had a good many of these agreements 1-Yes.

Have any of the men paid under them! -Some of them.

Very low?A few.

How many, four?--I cannot tell. We may take it that there were very few in proportion. Why, if you wanted to claim this passage money, didn't you give the man less wages?---Because it was not in the agreement.

master." Any agreement which did not comply with the policy of the Art was void. The reason that this special agree

ment was entered into was because it was impossible for the plaintiffs to include such a clause in the articles and if they offered the men the lower wage they would not be able to get them at all. The preliminary agreement entered into was one which would be quite impossible to get properly registered before the superintendent because it contained a clause which was against the policy of drawing up an informal agreement nullify the act and the plaintiffs could not by

the Merchant Shipping Act which was drawn up for the protection and beneft of the seaman. The moment be signed the articles, either he signed the second contract which waived the first. or his friend would try to include both agree

If you had you would have found it im- possible to keep ment-That I cannot say. As a matter of fact you have been rather hard up for men lately?—No.

You admit that when the defendantments.. came out he signed articles—Yes.

There is nothing in the articles about his paying this passage money---That I don't know.

Why was the clause about the passage maney not inserted in the articles-That is a matter of detail about which I know nothing.

I put it to you that the reason · W28- because it could not be done?-Perhaps

*80,

You have sued no one yet?-No. And I think Mr. Robinson is the last man out That I cannot say.

At any rate he is the first man you have sucd. Did he see you about this matter?

YOR.

He said that he could not pay the money?—Yes.

Yon naked him to think it over-Yes. And when he came back after thinking it over he said, "I think I will leave the company--That I don't remember,

Didn't he say that he would leave the company That I can't remember.

Oh, come, you have remembered all the

rest-I can't remember.

If Mr. Robinson swears that that was what he said you won't deny it-I won't deny it.

You did not wish him to leave the com-

pany and you did not press the elbim No.

You asked him for the passage money Never at any other

on one occasion." time?-No.

His Lordship asked if seamen covered

officerk.

Mr. Russ replied that seamen covered. mates.

Mr. Davidson said that they admitted that Mr. Robinson was a seaman within the meaning of the Act.

Mr. Russ added that the Court had to give Mr. Robinson as much protection na if he were an illiterate seaman. The Act brought him under the same category.

His Lordship-You say that if this agreement was a running agreement it should have terminated on the following June 30th or December 31sti :-

Mr. Russ-If it does not do that it is void because it offends against one stipu- lation of the Act.

Mr. Davidson-If this agreement is no

is an improper agreement, but I do not covered by the Act then I agree that it

agree that it is void.

signing this agreement he had given & His Lordship-Supposing instead of

promissory note to the Company. Would

you say that would be bad?

Mr. Russ-Yes. I think in a case where the Company evade the Act of Parliament the Court can go into the circumstances

of the transaction.

Mr. Davidson-I rather object to my friend saying that the plaintiffs were try

There is no evidence that this is so. ing to evade the Act of Parliament.

Defendant signed the articles in Hong- kong.

Put them in, will you! Was that sign- nd by the superintendent shipping maa- ter-Yes.

Were few of the claims made on the other men paid?-80 I am told.

• Cross-examined by Mr. Davidson: signed this agreement that you were Did you inform Mr. Wells when you

married-No.

Would you have had any difficulty in paying this money if you had not been married man-I should certainly have had difficulty because the expenses out here are greater than one is inclined to think at home.

HONGKONG SHARE MARKET.

Messra Vernon and Smyth in their weekly share report dated 4th April

state:-

The market for all local investment stocks continue firm and closes with a hardening tendency. Indo-Chinas have further improved their position during the interval, but close somewhat easier at lightly under the highest point touched. Fine Hard Para Rubber is quoted at 4/11 per lb. sellers, and Smoked and Unsmoked Plantation Rubber at 5/3 to 6/54 por lb. At the Rubber Auction held in London yesterday 500 tons of Plantation Rubber.. was sold, the tone of the auction at the close being firm. Bar Silver closes firm at points his friend had not raised.

Mr. Davidson said there were two 27 1/18d. ready, and 1d. forward, and first was that the Court could set aside T.T. is unchanged at 721.

The Sterling T.T. at 1/11 3/10d. Shanghai

any agreement between a seaman and his

."

You are at sea, nearly all the time1—A good deal.

His Lordship I don't want to go into this question.

employer if it was unreasonable.

BANKS.--Hongkong and Shanghais have been booked at 8855 closing steady. The London rate is unchanged at £83.

Mr. Ruas I am not suggesting that. I am saying it is the Act.

His Lordship then questioned the de-sold and continue in request at $880. MARINE INSURANCES.-Unions have been

fendant:

What is your pay1-£9 to start with. Do you pay for your mess on board1— We are allowed so much on board.

You practically get your messing free? Yes.

If you paid that £3.6 month that would leave you, if you were a bachelor, with about £t a month? Yes.

You agree to that? I agree that I could have paid them if I had stayed on board and made myself miserable.

Cross-examined by Mr. Davidson : On the date of that interview with Mr.

Sutherland did you say you were unsble to pay the money-Yep..

If you considered the money was not owing why did you say that? I suppose it was because you were not pressed Before that interview you thought the money was still owing-I don't know.

His Lordship-They did not enter into any agreement not to press you for pay heut

Witness-No.

Mr. Davidson-When you signed the articles in Hongkong you did not think these articles were replacing the "agree

ment?

Witness-I did afterwards.

Subject to audit it is announced that at the forthcoming annual meeting of share- holders the directors will recommend the payment of a Anal dividend of $20 per share for account of 1910, making 650 per share for the year, an interim dividend of 830

per share for 1911, and a bonus of 20 per cent, on contributory premium. They will further recommend that £10,000 be placed to Sterling Reserve Fund, leaving 8618,000 to be carried forward to Underwriting Buspense Account, thus closing the account for 1920. Cantona have been sold at $200. and close with buyers. Other stocks in this section with the exception of North-Chinas, which have receded to Tis. 146, remain unchanged and without business to report.

FIRE INSURANCES.-Hongkongs are quiet at $331. Chinas have been booked at $128 and 8127 closing firm with buyers at the higher rate.

SHIPPING. Hongkong, Canton and Macaos have improved to 8281 buyers

after sales at 828 and 8961 Indo-Chinas

have been done at $77 and 878, closing quieter at 377. The last London quota- tion to hand per "Reuter" is £7 1807 Od. sellers. China and Manilas at $12 are procurable, and Douglases at 821 sre quiet. Star Ferrys are in request at 829 (old) and 818 (new) and Shell Transports

at the improved rate of 109/8-ex rights.

Reisen-China Bugars have been done at improving rates up to $110, så which the market closes steady. Luzons after sales at $29 and $30 close with

It is only after he left the company that His Lordship-Supposing the defendant original agreement-No. If I may be buyers at the latter rate.

you sued-krimt—Yes,

Mr. Davidson-My friend has given me notice of a number of special defences, He relies upon the expressed agreement.

Mr. Davidson then re-examined witness: I think Mr. Robinson did not deny owing the £26 83. 7-He did not,

Eventually he said he was not in a posi tion to pay iti—Yes.

Can you tell me at what date it became known to the plaintiffs that defendant had a wife and family -I don't think it was known until that interview.

With regard to the other men who are under this agreement, I think one or two have paid and are paying? That is so.

Mr. Davidson--That is the case for the plaintiffs.

1

was to get to Hongkong with money bor- rowed from a third party and given a promissory note. That would not be bad!

At the time you signed the articles you did not think they were replacing the

allowed to explain. If the money had been taken month by month. I should never have thought anything about it. I should have agreed to it.

When it was not pressed you thought His Lordship Simply as between the it was out going to be asked fort-Yes." seaman and the employer'

Mr. Russ-No.

Mr. Buss-Yes. Proceeding to the con- sideration of the various sections of the Act affecting the agreements of wamen, he argued that the preliminary agreement was waived by the signing of the articles:

His Lordship-The signing of the articles is contemplated by this prelimin

ary agreement.

.

Mr. Russ I submit that the stipulation as to the repayment of the passage money Mr. Russ-I submit there is no case to should have been inserted in the fresh

answer.

His Lordship-The agreement is ad- mitted.

***

grounds. Shall I submit there is no case Mr. Russ-It is disputed on various to answer!

The usual

His Lordship-You can if you like. Mr. Russ-It is simply a question of saving time. I submit on three alterna- tives that no case has been made out for !

plaintiffs. The first one is the written agreement of 23rd August, 1910. This is not the usual agreement. agreement between a company and crew are the articles, and the reason why this special agreement was entered into before- hand was that it would be quite impossible for the plaintifs to insert such a state ment in the articles. Secondly, if they had done that and paid the man lewer wages they would not be able to get men, His Lordship-There is no evidence of that. It may be a fact, but you cannot take it as a fact when there is no evidence. Mr. Russ-It is an assumption which your Lordship could draw.

Mr. Davidson-It does not matter. Mr. Sutherland, of Messrs. Jardine, Matheson & Company, went into the box and stated that the firm were general managern of the Indo-China Steam Navi- gation Company. After the expiration of twelve months' service with the company the defendant loft their service. He did

not pay any portion of the £20 88.

Ilis Lordship Your agreement is stump- ed, I suppose?

Mr. Davidson-Yes. penny stapp.

It is only a six-

His Lordship-Ought it not to be stamped here?

Mr. Davidson-The point has only just occurred to me.

His Lordship-No, you must prove it. Mr. Russ-I put it at an assumption. His Lordship-I can assume nothing at all. Having proved these facts you may argue upon them. You cannot argue on an assumption

Mr. Russ-1 am not arguing upon it. The Merchant Shipping Act was passed to protect seamen against themselves, and it is to be construed strictly in their favour.

His Lordship--Does the defendant come under the definition of crew?

Mr. Russ-Yos. I wish also to say that this Act clearly applies to the Colonies by implication.

Mr. Davidson-It is applied to the Colony by the local Ordinance.

Mr. Russ then proceeded to quote the sections of the Merchant Shipping Act and dealt with the sections which were intended to protect seamen from entering into future agreements which might not be advantageous to them, pointing out that the only authorised agreement was

agreement.

His Lordship-I don't think that is a

strong point. The others I shall have to

consider very carefully.

Mr. Russ in, referring to the implied agreement said-1 don't think the Courts in Hongkong would have jurisdiction.

His Lordship Why not!

Mr. Russ-Bocause the agreement is made in England.

His Lordship-What does that maiter? creditor must seek his debtor and--

Mr. Russ-It is a rule of law that a

doctrine.

His Lordship-That is a very novel

Mr. Russ-You don't accept it? lent in pursuance of the agreement and. His Lordship You say the money was against the policy of the law?

plaintiffs to get round the Act when there Mr. Ross-It would be absurd to allow

is a written agreement which discharges the first agreement.

Mr. Davidson-My friend has admitted that the money was paid by the defen- dants. It may be argued that we could not recover the money under this agree- ment.

His Lordship-If it is obviously paid under the agreement and the agreement. is bad, how can you recover? You only want the implied agreement when you have nothing expressed."

Defendant then went into the box and was examined by Mr. Russ:

You arranged with Mr. Wells in London as to the terms of your employment-in- plaintiff's service. Yes,

When you came out to Hongkong you signed the articles of agreement 7-Yes.

Did you have an interview with Mr. Sutherland-Yes..

Except the fact that they did not press for payment was there anything com municated to you which indicated that the plaintiffs would waive their rights against you?-(Answer indistinct.). cient

Mr. Davidson-That is hardly sufi

Mr. Ruas then concluded his address,

pointing out that the usual release had been given to defendant, and that that release was a mutual discharge of all debts in respect of the last veyage made by the seaman.

.

It waa

Mr. Davidson replied to the points raised by his friend. He contended that the release was a mutual discharge of debts in respect of the last voyage, but

before the articles were signed. was not a discharge of debts incurred

an extension of the Act if it were to be made to apply to prior contracts which had nothing to do with the articles. He thought his friend had failed to show that there was any waiver on the part of the plaintiffs in respect of this agreement. Mr. Davidson then dealt at length with the other sectious quoted, and replied to the arguments of Mr. Russ.

His Lordship intimated that he would deliver a written judgment.

SIR HENRY MAY'S PROMOTION.

The following further note is taken from Truth:--

Sir Francis May to the Governorship of With reference to the appointment of Hongkong a correspondent writes:

MINING-Tronohs are in local request

INTIMATIONS

AGeneration of Mothers

Cuticur

SOAP

· 1878. ·

Has Endorsed Cuticura Soap

A generation of mothers has found no soap so well suited for cleansing and purifying the skin and hair of Infants and children as Cuticura Soap. Its abeo- Jute

purity and refreshing fragrance alone are enough to recommend it above ordi nary skin soups. But there is added to these qualities a delicate yet effective medi- catlon which renders Cuticura Soap, as sisted by Cuticura Ointment, most valuable

in

overcoming a tendency to distressing eruptions, and la promoting a normal condition of skin and hair health.

Banaples with 22-p, book free from nearest dapel: Newbery, dost. 63, 77 Obarterhouse B., London R. TOTES & Co., Bydnor, N. 8. W. Leanon. Ltd., spe Town Muller. Maclean & Co., Culeafte and Bambagi Patter D. &.0. Corp., sole prépa, Boston, V. 5. 4.

87-10

Chs. J. Gaupp

& Co.

ALEXANDRA BUILDINGS,

CHATER HOAD.

at. 75/- cum the interim dividend of 2/6 WATCHMAKERS, per share recently declared. Heawoods are quiet at 8/3 and Raubs at 84 after

0106

imm- Chinese Engineer pgs have proved to 37/6 buyers....

AND JEWELLERS, OPTICIANS,

DOOKS, WHALVES AND GODOWNS.-Hong- keng and Whampoa Docks are firmer with buyers at 844 after sales at B13 and 8434, with sellers at 857. New Amoy Docks are FINEST QUALITY Hongkong and Kowloon Wharves are dull quoted at te buyers ex the dividend of 50 cents per share for 1911, paid on the DIAMOND JEWELLERY

ad inst. Shanghai Docks at Tls. 54, and Shanghai and Hongkow Wharves at Tls. 87.

A SPECIALITY.

kong Lands have improved to $101 buyers. LANDS, HOTELS AND BUILDINGS.-Hong- Kowloon Lands have been sold at $340 and ENGLISH, AMERICAN AND SWISS West Points at 853), both closing in request. Hongkong Hotels are wanted at

GOLD AND 8107 (old) and 887 (new) and Humphreys

SILVER Estates at $0). Shanghai Lands are quoted in the North at TIs, BA.

WATCHES. COTTON MILLA.-Hongkongs have again been done až 85, closing steady,

of all descriptions.

MISCELLANEOUs.--China Borneos have inproved to $10 buyers, and China Pro CLOCKS vidents to $74 buyers after sales at $71. Cements have been done at improving rates up to 841 ex dividend at which the market closes firm. Tees remain steady at 8205 and Ropes at $17. Watsons have been booked at 854, Powella at $5, and North with sellers at Tla. 75. Electrics at 822. Langkate close in the

LONDON QUOTATIONS. The following by wire from London this morning quotations (middle price) were received

United Serdange Batu Tigas.... Bapongs

..1/3

77/6

95/-

Ledburya

57/8

London Asiatics

11/-

Linggis

E. & 1. Truste

Hubber Trusts. Tronobs

36/3

2/8 premium.

13/9 premium. 74/8

Hongkong Electric Trams. 3/9 Shell Transports

..103/9 ex rights. Chinese Engineerings

***... 39)-

4/11 sellers. Para Rubber

THE MAGISTRACY.

A reference to "Who's Who" will convinco you of tho qualifications of the -new Governor. A reference to any old China hand will convince you of the importance of having, in the present condition of affairs in China, &

A stoker named Richardson, from Governor in Hongkong who has had thirty-one years' experience of the H.MLS. Minotaur, was arrested in Spring Colony, who knows every resident Garden Lane early yesterday morning, British or Chinese-and who has fre- and later charged with having created a quently served during long periods as disturbance. It appeared that he and an- Acting Governor.

ricsha from a coolie,

Those matters are surely of greater other seaman took

concern to British interests in China running through the streets with it, the that the promotion of a Governor in stoker waving a long pole wildly above the West Indies or the West Coast of his head, Needless to say, both were Africa.

under the influence of liquor. Defendant

Sir Francis May's qualifications were

not questioned in what was said on the sub- was fined $4 or seven days' imprisonment. ject last week. In the absence of any "old He complained that Sergeant Gerrard, China band to refer to at the moment, who arrested him, had struck him, and He asked you why you had not paid? I am unable to see why the trouble in his Worship answered-Well, if you come

China should make Sir Francis the only

Yes.

And he told you to think it over?—Yes. When you thought it over what did you tell him-I told him I would like to leave the Company.

When you left the Company were any formalities gone through? Were you re- leased? Oh, yes.

possible man for the post. Tho Chinese ashore waving bamboo poles, you must revolution shows no likelihood of extend not expect to be treated sa though you ing to Hongkong, and presumably there were wrapped up in cotton wool. are other officials in the Colony who know all the residents and all the local circum- stances. If efficiency in a Governor is

Chinese

Sergeant Atlee, on behalf of the Trea only to be obtained by long local service, suryy yesterday prosecuted a the whole policy of promoting men from for failing to stamp a receipt for rent. one Colony to another must be wrong,

The man was fined $135.

45

If You Wear

TORICS

you know you have the best. If you do NOT, you have not yet done the best: you can to give your eyes comfort. It is possible to correct the vision of eyes that need glasses without using TOBIO LENSES. It would also be

pozaible to

yea a motor-car without proumatic tyres, but it would not be as comfortable. If you have failed to find real eye comfort, iry a pair of TORICS. The

deep inner

curve conforms to the natural motions of your eye. Their advantage is particularly noticeable to players of tennis, golf, cricket, and billiards. Made in lear glas and tinted shades.

LARK & Co CIENTIFIC OPTICIANS

@LARK

FORK BLOGS,

CHATER

RD

HONGKONG