Kuo Wei Ko v. The Steamship "Euripides" of Panamanian Registry
Read the full judgment text of HCAJ 14/1969 on BabelCite. This HCAJ judgment.
1. In this Admiralty action it is not disputed that the plaintiff, Kuo Wei Ku, was the master and captain of the S.S. Euripides, then owned by the Euripides Shipping Co., S.A. (hereinafter called the defendant company), from the 10th August, 1968, up to the 11th February, 1969. It is also I think not in dispute that the ship arrived in Hong Kong on the 8th February, 1969, was arrested in respect of another matter on the 25th February, 1969, and was never released up to sale, that the writ in the
|
HCAJ000014/1969 IN THE SUPREME COURT OF HONG KONG ADMIRALTY JURISDICTION. ----------------- Admiralty No. 14 of 1969. -----------------
Coram: Scholes J. in Court. Date of Judgment: 12th May, 1970. Ming Huang (A. Tsang & Co.) for Plaintiff. Mills-Owens (Johnson, Stokes & Master) for Defendant. ----------------- JUDGMENT ----------------- 1. In this Admiralty action it is not disputed that the plaintiff, Kuo Wei Ku, was the master and captain of the S.S. Euripides, then owned by the Euripides Shipping Co., S.A. (hereinafter called the defendant company), from the 10th August, 1968, up to the 11th February, 1969. It is also I think not in dispute that the ship arrived in Hong Kong on the 8th February, 1969, was arrested in respect of another matter on the 25th February, 1969, and was never released up to sale, that the writ in the present action was issued on the 10th May, 1969, and that the ship was sold by order of the court on the 15th May, 1969. 2. The plaintiff claims the balance of wages due to him as master of the said ship at the rate of $3,000 per month, and in fact the balance he claims is full wages for the period 12th February, 1969, to the 15th May, 1969, amounting to $9,200. He also claims the balance of food allowances alleged due to him at the rate of $9.00 per day for the same period amounting to $333 (certain sums by way of food allowance for that period having been paid to him by the Supreme Court), and he also claims a further $20.10 expended by him for the purchase of kerosene and a lamp chimney for the ship, amounting in all to a claim of $9,553.10. 3. During the trial the defence did not contest the amounts of the claims, but fought the action on the ground that the plaintiff was not entitled to what he claimed. It is the case for the defence, and alleged in the statement of defence, that the plaintiff has not been the master of the vessel in question since the 11th day of February, 1969, on which date he signed off as master of the vessel by appending his signature to the Crew Articles or Crew Roll, Ex.B, and that he at the same time signified by such signature that no sums were due to him from the defendant company. The defence further says that the plaintiff was not requested by the defendant company to serve on the vessel after he signed off on the 11th February, 1969, and as a result he is not entitled to any of the wages or food allowances claimed, and that if he did spend $20.10 on kerosene and a lamp chimney the monies were expended without the defendant company's authority, and he is not therefore entitled to recover that sum. 4. The issue for the court is whether the plaintiff continued to be employed by the defendant company as the master of the S.S. Euripides after the 11th February, 1969, or whether such employment entirely ceased on that date. That is the date that the defence alleges that the plaintiff was discharged or dismissed, and in their pleading the defence does not allege in the alternative that the plaintiff's employment was terminated at any later date. 5. The plaintiff in evidence said that although he signed the Crew Roll Ex.B showing final discharge in Hong Kong on the 11th February, 1969, together with all the other members of the crew, he was not in fact discharged, and that the ship's owner's representative, Mr. Cheung, asked him to continue on the ship as master. It is not disputed that at all material times Mr. Cheung was the defendant company's representative. Mr. Cheung in evidence said that when he was on board the ship on the 11th February, 1969, when all the ship's crew were signed off, he told the plaintiff that he was discharged, that his services were no longer required, and that he was to hand over the ship's papers, keys and anything else to the Chief Officer, and that the plaintiff promised to do so, and that he never asked the plaintiff to stay on. Mr. Cheung also said in evidence that he told the Chief Officer of the ship that the master was dismissed and that he the Chief Officer was to be responsible for the ship. It is between these two contrary versions, that of the plaintiff and that of Mr. Cheung, as to what occurred on the 11th February, 1969, that I have to decide. 6. It is not in dispute that the ship arrived in Hong Kong on the 8th February, 1969, and tied up at buoy B 22, and that on the 11th February, 1969, the ship moved to the Yaumati Anchorage, where Mr. Cheung was on board, and all the ship's crew signed the ship's Crew Roll Ex. B and were paid all money due to them up to that date, that the defendant company wa financial difficulties and wanted to sell the ship, that on the 11th February, 1969, the Chief Officer, the Chief Steward, the third Engineer and the fireman, the carpenter, and the Bo'sun were all asked to stay on the ship as a skeleton crew and did so. It is also not in dispute that on or about the 14th February, 1969, on the orders of Mr. Cheung the boilers of the vessel were blown down (that is the ship's fires were put out and the boilers put out of use) and the third engineer and fireman were discharged. It is also not disputed that the Chief Officer, Chief Steward, Bo'sun, and carpenter requested their wages from the defendant company and were not paid, and eventually had to bring an action against the defendant company claiming their wages, and that the action was settled their claims being paid. It is also clear that the plaintiff's claim is very much larger than would have been each of the claims of the Chief Officer, Chief Steward, Bo'sun and carpenter, because according to the Crew Roll, Ex. B, whereas the plaintiff's salary was $3,000 per month the Chief Officer's salary was $1,850 per month, the Chief Steward's salary $420 per month, Bo'sun $420 per month, and presumably the carpenter's salary would not have been large. 7. It is to be noted that, although the Chief Officer, Chief Steward, Bo'sun and carpenter signed off on the ship's Crew Roll, Ex. B, to the effect that their place and date of final discharge was in Hong Kong on the 11th February, 1969, it is not disputed that they in fact continued on the vessel in the employment of the defendant company after that date. 8. Ex. B, the ship's Crew Roll, and the plaintiff's own Hong Kong Seaman's Discharge Book, Ex. D, and his similar Panamanian Book Ex. E, all show that the plaintiff was discharged from the Euripides on the 11th February, 1969, although the two latter documents also record that he was employed in the S.S. Euripides as master or captain from the 12th February, 1969, to the 15th May, 1969; however it appears from the plaintiff's evidence that he made the latter entries after his alleged discharge from the vessel on the 15th May, 1969, which was after this action was commenced, and thus I think little weight should be attached to the latter entries, although of course if he was discharged on the 15th May, 1969, he could not presumably properly write in that date until that date arrived. It is also to be noted that the Chief Steward's Hong Kong Seaman's Discharge Book Ex. C has similar entries, namely that he was discharged from the S.S. Euripides on the 11th February, 1969, but re-engaged for the period 12th February, 1969, to the 15th May, 1969, and I do not think that the accuracy of those entries is disputed. 9. Mr. David Ho, bailiff of the Supreme Court, gave evidence for the plaintiff, and he can be regarded as an independent witness, and he said that he was the bailiff in charge of all Admiralty cases, and that between the 25th February, 1969, when the S.S. Euripides was arrested, and the 15th May, 1969, when she was sold, he went on board the ship on duty on many occasions. He said he came to know the plaintiff as the master of the S.S. Euripides when he came to his office for food allowances for the members of the crew and himself, and he would say that the plaintiff came to his office for food allowances more than ten times, and he stated that normally one or two members of the crew would come with him. He also said that on the 12th May, 1969, he received the ship's keys and safe key from the plaintiff as stated in the receipt Ex. A 22, and that the keys were handed to the ship's buyers. 10. In cross-examination Mr. Ho said he took the plaintiff to be the master of the ship because the plaintiff told him that he was the master and because he saw from the crew's list, that he was the master. 11. He said that towards the end of April, the plaintiff was in his office and Mr. Cheung came there and asked the plaintiff why he was there, and that Mr. Cheung appeared to be surprised. He could not recall whether or not the plaintiff made any reply. He did not remember if Mr. Cheung had told him that the plaintiff was not the master of the ship. I think that the probabilities are, that if Mr. Cheung had told Mr. Ho that the plaintiff was not the master of the vessel, that Mr. Ho would have remembered it, because that would mean, if correct, that Mr. Ho would have been wrong in paying the plaintiff his food allowances as master; and thus as he could not remember being told that I do not think that he could have been so told. 12. In further cross-examination the witness said that the plaintiff had told him that all the officers and crew had signed off, however there were two officers including the master and 3 seamen remaining on board at the request of the owners. He said he was told that on about the 12th March, 1969, or one or two days before. 13. Mr. Ho also said that he had seen the plaintiff on board the ship quite often, and that when he addressed the plaintiff as master on board the ship none of the crew disagreed with him, and that the Chief Officer was present on most of his visits. 14. Mr. Mayo, assistant registrar of the Supreme Court, who was called to give evidence by the defence, may also be regarded as an independent witness. He said that his memory was somewhat vague as to what had occurred a year ago, but that his recollection was that sometime in March, 1969, the master of the S.S. Euripides called to see him requesting him to make arrangements for arrears of wages and salary which he alleged were due to himself and members of the crew. He also said that his recollection was that the master of the vessel had informed him that he had attempted to sign off from the ship but had been unable to do so because the Panamanian Counsel had not agreed to him doing so. The witness said he knew the ship was of Panamanian Registration. 15. There was evidence which was not disputed, that the Chief Officer of the vessel was at present at sea and out of the Colony, but the Chief Steward gave evidence supporting the plaintiff's evidence. 16. I would next like to comment on some of the documents in the agreed bundle of documents. The first is Ex.A 7 dated the 7th August, 1968, which is the plaintiff's letter of appointment as master of the S.S. Euripides as from on or about the 10th August, 1968. It is to be noted that he was appointed master of the vessel by letter, and although it is not essential that there should be a letter of dismissal or discharge, it is also to be noted that there was in fact no such letter of dismissal or discharge of the plaintiff on the 11th February, 1969, as there might have been had that in fact occurred. 17. In my view it is very relevant to note that, in Exs. A7, A9, A11, and A12, which are four receipts for food allowances paid by the Supreme Court of Hong Kong dated respectively from the 9th April, 1969, to 2nd May, 1969, and each of which is signed by the plaintiff as master of the vessel and each of which is signed by the other members of the crew continuing in the employment in the vessel, the Chief Officer signed as Chief Officer, and his signature appears under the signature of the plaintiff as master, and the plaintiff also signed as master of the S.S. Euripides over the ship's chop at the foot of the receipt. It seems incredible to me that if the Chief Officer had been informed by Mr. Cheung, as Mr. Cheung says he was, that the plaintiff was dismissed and that he the Chief Officer was to be responsible for the ship, that the Chief Officer should have signed these receipts which clearly show the plaintiff as master and as receiving food allowances as master, and when Mr. Cheung was asked in evidence about this he was unable to give any explanation. 18. I would next turn to the Portage Bills, Exs. A27, A28, A29, A30, and A31. Mr. Cheung admitted that he received each of these Portage Bills and that each was submitted by the plaintiff. It is clear from each of them that the plaintiff submitted them as master of the S.S. Euripides. The first is for the period 12th February to 28th February, 1969, and is dated the 1st March, 1969, the second is for the period from the 1st March to the 20th March, 1969, and is dated the 20th March, 1969, and the last one Ex. A31 is for the period from the 8th May to the 15th May, 1969, and is dated the 16th May, 1969. 19. The plaintiff said that he himself in person submitted the first Portage Bill, Ex. A27, to Mr. Cheung at the end of February, but that Mr. Cheung told him that the company had no money and could not pay it. The plaintiff also said that on the 21st or 22nd March, he himself in person submitted the second Portage Bill to Mr. Cheung and that Mr. Cheung told him that he could not pay the amount because the company had no money. In regard to the third Portage Bill Ex. A29 the plaintiff said that the Chief Officer took it to Mr. Cheung but that it was not paid. The plaintiff of course could not state of his own knowledge that the Chief Officer took it to Mr. Cheung, because the plaintiff did not go with the Chief Officer and was not present. Similarly the plaintiff said the Chief Officer took the fourth Portage Bill to Mr. Cheung. The plaintiff said he sent the last Portage Bill, Ex. A31, to Mr. Cheung by post. The plaintiff said he prepared the Portage Bills and none of them were paid. 20. Mr. Cheung said in evidence that he received the first Portage Bill Ex. A27 by post, most probably on the 1st March; asked in evidence what his reaction was to receiving the Portage Bill, Mr. Cheung replied that he considered that the plaintiff was not entitled to claim any money. Asked further what he did when he received that Portage Bill, Mr. Cheung said:
Mr. Cheung said the plaintiff never contacted him at all. Mr. Cheung further said that he also received the second Portage Bill, Ex. A28, by post, and that when he received it he tried to contact the plaintiff by telephone and by going on board the S.S. Euripides, but the plaintiff was not available. Mr. Cheung is a responsible person and the shipping manager of the defendant company; he said he had dismissed the plaintiff as master of the ship on the 11th February and had told the Chief Officer that he was responsible for the ship; if that is correct it amazes me that Mr. Cheung, on receiving the first Portage Bill about the end of February or beginning of March, which Bill clearly indicates that it was submitted by the plaintiff as master of the vessel and inter alia that he claimed wages as master for a period after the 11th February, 1969, should not at once have ensured that he did contact the plaintiff or put something in writing and write to him in strong terms, or at once give instructions to a solicitor, or give directions to the Chief Officer that he was to submit the Portage Bills, but there is no evidence that he did any such thing. Even after he received the second Portage Bill, Ex. A27, on about the 21st or 22nd March, Mr. Cheung merely says that he tried to contact the plaintiff without success, and it was not until about the 12th April, 1969, that he consulted a solicitor as a result of which letters were sent to the plaintiff and to the Registrar of the Supreme Court, namely Exs. A13 and A14. 21. About the incident of meeting the plaintiff in Mr. Ho's, the bailiff's, office, to which I have already referred, Mr. Cheung said he thought that the meeting was on about the 9th April. Mr. Ho said it was towards the end of April. About this incident Mr. Cheung in evidence said that he was very surprised to see the plaintiff there and asked the plaintiff what he was doing there to which the plaintiff replied that he was going to collect food money for the crew and himself. Mr. Cheung stated that he then told the plaintiff that he was no longer master of the vessel and he had no right to do anything in connection with the S.S. Euripides, and Mr. Cheung said that the bailiff Mr. Ho was present, and that he told Mr. Ho in the presence of the plaintiff that the plaintiff was no longer the master of the vessel. As I have already said, if Mr. Cheung had said that to the plaintiff in the presence of the bailiff, or indeed if he had said it to the bailiff, I think that the probabilities are that the bailiff would have remembered it and further that he would have made further enquiries into the matter, because if correct it would mean that he was wrongfully paying the plaintiff. Mr. Cheung also said he asked Mr. Ho if a master was necessary for a laid up ship. 22. I think that it is very unlikely that a person like the plaintiff, whom I have had the opportunity of observing in the witness-box, and a person of his responsibility, would deliberately make fraudulent claims to the Supreme Court for food allowances. I think that the defendant company must have eventually decided to avoid paying by far the largest claim for wages against them by contesting the plaintiff's claim, thinking that they would have a fair chance of successfully resisting the claim on account of the plaintiff having signed the ship's Crew Roll, Ex. B, at the end of the voyage. On the evidence I am satisfied that the plaintiff was right when he said that on the 11th February, 1969, Mr. Cheung asked him to continue on the ship as master, and that he did so, and that Mr. Cheung was entirely wrong when he said that on that date he told the plaintiff that he was discharged and that his services were no longer required, and that he told the plaintiff to hand over the ship's papers et cetera to the Chief Officer, and that he never asked the plaintiff to stay on. It is clear from Ex. B and Exs. C, D, and E that all the crew of the ship signed off after the voyage on the 11th February, 1969, but I am satisfied that after that, on the same day, certain members of the crew including the master, were asked by Mr. Cheung to continue on the ship, as a skeleton crew. 23. Before concluding this judgment there are some points put forward by counsel for the defence in his closing address which I think I should mention and with which I have not already dealt. 24. One point was that the plaintiff had given a variety of reasons for the foundation of his claim, the first being that he was not discharged on the 11th February, 1969. It may well be that the plaintiff considered that he was not discharged on the 11th February. The second reason was that there was no one to hand over to. I think that this is a point in favour of the defence, because it appears from Captain Mcrink's evidence that he could have handed over to the Chief Officer, although I do not think that the Chief Officer's qualifications were proved. The third reason was that in the second paragraph of Ex. A16, the plaintiff's solicitor's letter of the 1st May, 1969, to the defendant company's solicitors, it is stated that the plaintiff remained in the vessel for his responsibility as master of the vessel to the Marine Department of Hong Kong. The second paragraph of that letter, and the following short paragraph, state as follows:-
It seems to me to be clear from these paragraphs that it is alleged that the plaintiff was remaining on the vessel at the request of Mr. Cheung, and that he as master was responsible for the vessel to the Marine Department prior to handing over to another person. That does not seem to be contrary to his case. The fourth reason was that the plaintiff had told Mr. Mayo that he had attempted to sign off from the ship but had been unable to do so because the Panamanian Counsel had not agreed to him doing so. If Mr. Mayo's recollection is right as to this it may be correct that the plaintiff had attempted to sign off at some stage, but there is no evidence as to what the Panamanian Counsel said, and in what circumstances. 25. Defence counsel also submitted that, as the defendant company was in financial difficulties, it was highly unlikely that the master would be retained on board, when his salary was much higher than that of the Chief Officer. Exactly what the defendant's thought is open to speculation; it is not disputed that they wished to sell the vessel, and it was suggested that if not sold they would lay up the vessel North of Lantau Island, but they may have thought that they could sell the vessel more easily with a master on board, or they may not have known that outside the Typhoon Season a master was not required when the ship was at Yaumati Anchorage; it is to be noted that Mr. Cheung said in evidence that, at the meeting in Mr. Ho's office in April, he asked Mr. Ho if a master was necessary for a laid up ship. 26. I am satisfied that the plaintiff has established his claim and succeeds, and there will therefore be judgment for the plaintiff with costs.
12th May, 1970. Representation: Ming Huang (A. Tsang & Co.) for Plaintiff. Mills-Owens (Johnson, Stokes & Master) for Defendant. |