K .B .] Au s t i n Fr i a r s St e a m Sh i p p i n g Co. Li m. v. St r a c k ; Sa m e v. St r a c k, &c. [K .B . follows : [H is Lordship then read the term s of
thé agreement and the whole of the facts as set out in the case, and proceeded :] On the 1st Sept.
1904 Strack and other members o f the crew issued a summons under 43 & 44 V ie t. c. 16, s. 11, claim ing damages against the appellants fo r breach o f the agreement contained in the ship’s articles ; and upon th is summons the magistrate awarded 10Z. to Strack and to each of the crew.
On the 10th Sept. 1904 Strack took ou t a summons under sect. 164 o f the M erchant Shipping A c t 1894, claim ing the sum o f 35Z. 2s. 2cZ., fo r balance of wages due up to the 30th Aug., and fo r con
tin u in g wages up to the date of fin a l settlement under sect. 134 o f th a t A ct. A t the hearing on the 16th Sept, the appellants adm itted the claim up to the 2nd J u ly , and the special case states th a t the summons was adjourned fo r the claim to be amended. The appellants then paid the wages due up to the 2nd J u ly 1904; and on the fu rth e r hearing on the 17th Sept, the magistrate gave ju d g m e n t fo r the balance rem aining due fo r wages between the two dates — namely, 9Z. 13s. 4<L, and costs ; b u t he declined to allow a claim fo r a n yth in g a fte r the 30th Aug.
on the ground th a t there was then a bond fide dispute w ith in the meaning o f sect. 134.
I t was argued fo r the appellants th a t the ship when she was taken was “ lost ” w ith in the meaning of sect. 158 o f the M erchant Shipping A c t 1894 and th a t S track was, therefore, e n title d to wages only up to th a t date—th a t is to say, the 2nd J u ly 1904. B y th a t section : “ Where the service o f a seaman terminates before the date contemplated in the agreement by reason o f the wreck or loss of the ship . . . he shall be e n title d to wages up to the tim e of such term ina
tion, but n o t fo r any longer period.” I t seems to us very d o u b tfu l whether the word “ loss ” would in any case include a capture such as this, which is n o t in the same category as wreck, fire, or stranding, o r such term inations o f a voyage as are brought about by the perils of the sea. B u t however th a t may be, i t seems clear th a t the section was n o t intended to include cases where the service terminates n o t owing to capture by the K in g ’s enemies, b u t fro m the w ilfu l action o f the captain and owners, and n o t re su ltin g either d ire c tly or in d ire c tly fro m any p e ril or h u rt affect
in g the ship its e lf or preventing the continuance of the voyage.
The case of O’N e il v. Arm strong, M itchell, and Co. (8 Asp. M ar. Law Cas. 63; 73 L . T. Rep.
178 ; (1895) 2 Q. B. 70, 418) was referred to on the argument, and appears to us to have a decided bearing upon the question before ns. I n th a t case the p la in tiff shipped as fire man on a torpedo-ship constructed by the Japanese Government by the defendants fo r a voyage to Yokohama. The ship le ft the Tyne on the 31st J u ly 1894, and war was declared between Japan and China on the 3rd Aug.
The p la in tiff became aware of this, and at Aden, a fte r a proclam ation had been read on board w arning the crew against any breach of the Foreign E n listm e n t A c t 1870, he and his fellow sailors le ft the ship and were sent home by the Board of Trade. The p la in tiff sued fo r balance o f wages, and fo r damages fo r n o n -fu lfil
ment o f the contract. The nom inal defendants accepted responsibility fo r the satisfaction o f the p la in tiff's claim to the extent of the lia b ility , i f
any, of the captain o f the vessel. I t was held in the Queen’s Bench D ivision and in the C ourt o f Appeal th a t the p la in tiff was e n title d to recover both wages and damages, inasmuch as the defendants adm itted responsibility fo r the captain of a vessel whose owners (represented fo r the purpose o f the action by the defendants) had by the declaration of war altered the character of the voyage du rin g its continuance, and exposed the p la in tiff and crew to dangers greater and other than those o rig in a lly anticipated. I t was n o t a case in which sonrething had occurred beyond the control of either party, such as was Appleby v. Myers (16 L . T. Rep. 669; L . Rep.
2 C. P. 651), by which the voyage had been term inated, b u t a case in which its discontinuance resulted d ire ctly fro m the action of the owners.
There the ris k was altered because a fte r the o u t
break o f hostilities the Japanese vessel of war became liable to capture by the enemy, and fo r th a t outbreak o f hostilities the owners were responsible. I n the present case the risk was altered because a fte r the outbreak o f hostilities between Japan and Russia the captain, acting fo r and as agent fo r the owners, and therefore the owners, undertook a venture m a te ria lly different fro m the character o f the voyage in regard to which the seaman’s contract was made.
They knew (although the crew did not) th a t ra il
way m aterial had been declared to be contraband when they chartered the vessel fo r the voyages, on one of which she was seized and captured : (see B u rto n v. Pinkerton, 2 Mar. Law Cas. O. S. 494,547;
16 L. T. Rep. 419 ; 17 L . T. Rep. 15 ; L . Rep. 2 Ex.
340). I t is tru e th a t the carrying of contraband is n o t ille g a l (Ex parte Chavasse; Be Grazebrooh, 2 M ar. Law Cas. O. S. 197; 12 L . T. Rep. 249;
34 L . J. 17, B k.), b u t merely exposes the neutral who engages in such a venture to the ris k of seizure and confiscation ; b u t the question does n o t tu rn upon the le g a lity or ille g a lity of the voyage and its object, b u t upon whether, a fte r its inception, the ris k and danger are m aterially varied by any alteration in its conditions fo r which the owners are responsible. I t seems clear th a t, when the owners engaged in the business of carryin g cargo which they knew to be contraband, they d id so alter the conditions of the voyage.
T h a t was the cause o f its term ination, and n o t a
“ loss ” o f the ship w ith in the meaning o f sect. 158 o f the M erchant Shipping A c t. I n O’N e il v. A rm strong, M itchell, and Co. (ubi sup.) the p la in tiff was e n title d by the articles to the lum p sum of 30Z. on a rriv in g a t Yokohama, and having received a po rtio n o f th a t sum on account the co u rt gave him judgm ent fo r the balance. Upon th is contract S track was e n title d to be paid at the rate o f 5Z. a m onth t i l l his a rriv a l in the U n ite d K in g d o m —th a t is to say, the 30th Aug.
W e are o f opinion th a t the m agistrate’s decision in awarding the balance due up to th a t date was rig h t. In regard to damages, there was ju ris d ic tio n , in the view which we have already expressed as to the breach of contract, to award damages (see The Ju s titia , 6 Asp. Mar.
Law Cas. 198; 57 L . T. Rep. 816; 12 P. D iv.
145), and we see no reason, considering the hard
ships involved in the homeward journey of the crew, in holding th a t the amount awarded in the present case is in p o in t of amount unreason
able.
Appeals dismissed in both cases.
K.B. Div.J Ll o y d ( a p p . ) v . Sh e e n (r e s p .).
S olicitors fo r the appellants, B otter ell and Roche.
Solicitors fo r tbe respondents, Pattinson and Brewer.
Saturday, J u ly 1, 1905.
(Before L o rd Al v e r s t o n e, C.J., Da r l i n g and Je l f, JJ.)
Ll o y d (app.) v. Sh e e n (resp.). (a) Seaman — Wages — Agreement f o r o rd in a ry
voyage—Discovery by crew that cargo is con
traband o f w ar fo r belligerent p o rt—Refusal to proceed on voyage— Term ination o f service
— C laim fo r wages— Merchant Shipping Act 1894 (57 & 58 Viet. c. 60), ss. 134,158.
A seaman signed articles to serve on board a B ritis h ship fo r a voyage not exceeding two years to ports in the East, proceeding to Hong Kong and thereafter trading to ports in any rota
tion and ending at a p o rt in the United K in g dom. W ar then existed between Russia and Japan, and coal had been declared contraband o f war. The vessel le ft w ith a cargo o f coal to Hong Kong or Shanghai as m ight be ordered at Singapore. On the voyage to Singapore the cargo was sold f o r Nagasaki in Japan, and on the a rriv a l o f the ship at Singapore the master received orders fro m the owner to go to Nagasaki instead o f Hong Kong. A t Singapore i t firs t came to the knowledge o f the crew that the ship was to go to Nagasaki instead o f Hong Kong.
They refused to proceed to Nagasaki on account o f the increased ris k and danger in going to a belligerent po rt w ith contraband o f w ar. I t was then arranged by the master that the crew should rem ain at Singapore and that he would call fo r them on his way back. He took another crew on board, went to Nagasaki, delivered the coal, and left that port, but on her way back the ship was driven ashore, was got off, and was taken to Hong Kong. I t was not proved th a t she became a wreck. The crew were sent home. One o f the seamen claimed his wages up to the date o f his a rriv a l in London, upon the ground that the agreement was broken by the owner when the ship was ordered to Nagasaki. When he made the agreement he had no knowledge that he would be required to sail w ith contraband o f w ar to a belligerent port.
Held, that, there having been no wreck or loss of the ship which would terminate the service under sect. 158 o f the M erchant S hipping Act 1894, and there having been no term in a tio n by the discharge o f the seaman under the terms of the contract or under the provisions o f the Act, either at home or abroad, the seaman was entitled to his wages up to the date of his a rriv a l in London.
Ca s e stated by an alderman o f tbe c ity of
London, s ittin g as a co u rt o f summary ju ris d ic tio n at the G u ild h a ll Justice Room.
On tbe 31st Oct. 1904 a summons was issued by tbe respondent, Jerem iah Sheen, under the M erchant Shipping A c t 1894, against the appel
lant, Tom L lo y d (tra d in g as L lo y d and Co.), claim ing balance o f wages due to the 24th Oct.
1904 fo r service as an able seaman on hoard the steamship Agincourt, 17Z. 12s. 6d., and fo r m
ain-[K.B. Div.
tenance fro m th a t date to the 7th Nov. 1904, 1Z. 12s., and fu rth e r fo r wages, lodging, and maintenance to date o f fin a l settlement. To th is claim the appellant p u t in a counter-claim, a copy o f the claim and counter-claim being annexed to the case. The counter-claim claimed certain deductions fro m the wages which were allowed, and also damages fo r expenses incurred at Singa
pore, and fo r two days’ detention of the vessel there through the refusal o f the p la in tiff to proceed.
1. On the 7th Nov. 1904 the parties attended before the m agistrate in pursuance o f the summons. The case was adjourned t i l l tbe 10th Nov. W ith regard to the counter-claim, the magistrate held th a t there was no a u th o rity under the M erchant Shipping A c t 1894 (under which these proceedings were taken) to take in to account a counter-claim fo r damages, and there
fore declined to consider i t at all, except w ith regard to tbe firs t five items, which were adm itted b y the respondent, and were deductions authorised to be made in s e ttlin g the account o f wages. He gave judgm ent fo r the respondent fo r 17Z. 18s. 2d., being the agreed amended balance of wages due a fte r proper deductions up to tbe 24th Oct. 1904, and the sum o f 15Z. 15s. fo r costs.
2. A t the hearing the fo llo w in g facts were eith e r adm itted or proved:—
(a) The respondent on the 22nd A p r il 1904 signed articles o f agreement a t B a rry to serve as an able seaman on board the steamship Agincourt, of which the appellant was owner, a t the rate of 31. 15s. per m onth wages, fo r a voyage described in the articles as
N o t e x c e e d in g t w o y e a rs ’ d u r a t io n t o a n y p o r t s o r p la c e s w it h i n th e l im i t s o f 75° N . a n d 6 0 ° S. la t it u d e , c o m m e n c in g a t B a r r y , p ro c e e d in g th e n c e t o H o n g K o n g , th e r e a f te r t r a d in g t o p o r ts in a n y r o ta tio n , a n d t o o nd a t s u c h p o r t in th e U n it e d K in g d o m o r c o n t in e n t o f E u ro p e ( w it h i n h o m e tr a d e l im i t s ) as m a y be r e q u ire d b y m a s te r.
(5) The A gincourt le ft B a rry under a charter- p a rty w ith a cargo o f W elsh coal to H ong Kong or Shanghai, as m ig h t be ordered b y the charterers at Singapore. She proceeded via N a ta l to Singa
pore. A t the tim e o f the signing of the articles a state of war existed between Japan and Russia, and coal was described as contraband o f war in the declaration made by each o f those countries, and in the notices in the London Gazette as to contraband dated the 12th Feb. 1904, 19th Feb., 1st March.
18th M arch, and 22nd March, which were p u t in . These facts were known to a ll the parties, The coal was sent o u t as a speculation, and in su r
ance was effected against war risks before the vessel le ft. The cargo was sold fo r Nagasaki when the vessel was between N a ta l and Singapore.
On her a rriv a l there on the 27th June, the master received orders fro m the appellant to proceed to Nagasaki instead of H ong K ong. The crew did n o t know th a t she was going to any place other than H ong K o n g t i l l they reached Singapore.
On the 28th June i t firs t came to the knowledge o f the crew th a t the ship was to go to Nagasaki instead o f H ong K ong. W ith the exception of the officers, they then went in a body to the master and objected to go to Nagasaki on account o f the danger. They had heard th a t ships had been shot a t and one (the K n ig h t Commander) had been sunk. The master offered the respondent and
(a) Reported by W . W . Or r, Egq.. B a rriste r-a t-L a w
76 M A RITIME LAW CASES.________________
K . B D i v . ] Ll o y d (app.) v. Sh e e n (resp ). [ K .B . Di\l
each member tw o m onths’ extra pay to go on.
T his offer was declined by the respondent and fourteen other members of the crew, who desired to see the shipping master. On the 29th June these were p u t on shore w ith th e ir kits, and the master went w ith them to the shipping m aster’s office. I t was fin a lly arranged b y the master th a t the crew should remain a t Singapore, and he w ould call fo r them on his way back fro m Nagasaki. The respondent and the other seamen who refused to go to Nagasaki were le ft behind a t the Sailors’
Home at Singapore. One seaman and the officers remained on the steamer, Chinese having been engaged as substitutes fo r the men le ft behind.
On the 30th June the vessel proceeded on her voyage to Nagasaki. She arrived there on the 12th J u ly and discharged her cargo, and le ft th a t p o rt on the 25th J u ly bound v ia Singapore to Calcutta. On the 1st Aug., on her way back to Singapore, she was driven ashore at H ainan Island, o ff the coast of China, 400 miles S.W. of H ong K ong, and the appellant was inform ed on the 8th A ug. N otice of abandonment was given by the appellant to the underw riters. On the 20th A ug. 35 per cent, of the am ount insured was paid to the appellant. I t was n o t proved to the satisfaction o f the m agistrate th a t the vessel became a to ta l wreck. There was no evidence th a t the crew then on board had to abandon her.
The vessel was got off, and was a t the tim e of the hearing at H ong K ong. The respondent and the other members o f the crew who were le ft behind remained (except fo r a p a rt o f the tim e, during which the respondent was i l l in hospital) in the Sailors’ Home t i l l the 4th Sept. D u rin g his stay board and lodging were provided fo r him a t the Sailors’ Home at the cost of the appellant. He fu rth e r received a weekly allowance o f 2 dollars fo r the firs t five weeks and a fu rth e r sum of 3 dollars fro m the shipping master sh o rtly before he le ft Singapore, the to ta l oE 13 dollars being paid o u t o f 'money supplied by the appellant. On the 4th Sept. 1904 he was sent under a Board of Trade order w ith the others to London fro m Singa
pore as a distressed B ritis h seaman on board the B ritis h steamship H enlarig at the cost of the ap
pellant. They arrived in London on the 23rd Oct., and on the 24th Oct. applied to the appellant fo r th e ir wages, b u t were refused. A t the tim e of the hearing o f the summons the master of the A gin- court was s till in China, and he had n o t been in Singapore again since the 30th June. The ship’s papers, in clu d in g the articles o f agreement and log, and the respondent’s continuous certificate of discharge, which were on board the vessel a t the tim e of her going ashore, were sent by post to the appellant, b u t did n o t arrive in th is country u n til a fte r the summons was issued—namely, on the 31st Oct. 1904. W ith o u t these documents the men could n o t be paid off in due form .
(c) The p o rt of Nagasaki was w ith in the lim its o f tra d in g described in the articles o f agreement.
The respondent refused to go there on account of the ris k owing to the cargo being contraband of war to be delivered in a p o rt o f one of the b e lli
gerent Powers. I n a ll other respects he was w illin g to carry out his agreement, which was entered in to w ith o u t any knowledge th a t he would be required to sail w ith contraband o f war to a p o rt of one o f the belligerent Powers.
(d) N o offer was made to the respondent to pay h im o ff at Singapore and give h im a fo rm a l
discharge, as required by sect. 18b of the M erchant Shipping A c t 1894.
(e) The alteration of the voyage to Nagasaki was made e ntirely to su it the arrangements of the appellant w ith the charterers, and i t was not proved to the magistrate th a t there was any consideration of safety which should have pre
vented the ship fro m going to H ong Kong.
3. On behalf o f the respondent (the com
plainant) i t was contended: (1) T h a t the contract contained in the articles of agreement was broken by the appellant when the vessel was ordered to Nagasaki instead o f to H ong K ong. (2) T h a t he was thereby released fro m fu rth e r obligation under the articles o f agreement, and became e n titled to be discharged and paid his wages (3) T h a t in the alternative the engagement of the respondent had never been terminated, as he had remained a t Singapore w ith the consent of the master as agent of the appellant. (4) T h a t under sect. 134 of the M erchant Shipping A c t 1894 he was e n title d to wages u n til the tim e of final settlement, and to compensation fo r the cost of lodging and maintenance fro m his a rriv a l in this country u n til such settlement.
4. I t was contended on behalf of the appel
la n t : (1) T h a t the voyage of the Agincourt as canned o u t was n o t illegal. (2) T h a t the carriage of contraband goods to a belligerent p o rt was not illegal. (3) T h a t the respondent, havingisigned the articles of agreement a fte r the commencement of h o stilitie s between Russia and Japan w ith the f u ll knowledge of the same and of the nature of the cargo, was bound in performance of the agree
ment to proceed w ith the Agincourt to Nagasaki.
(4) T h a t the agreement was th a t the voyage should extend to any ports or places w ith in the lim its o f 75 degrees N . and 60 degree7« S. la titu d e fo r a period o f two years, and th a t i t was not o f the essence of the contract th a t the Agincourt
(4) T h a t the agreement was th a t the voyage should extend to any ports or places w ith in the lim its o f 75 degrees N . and 60 degree7« S. la titu d e fo r a period o f two years, and th a t i t was not o f the essence of the contract th a t the Agincourt