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VOLUMNIA HOLD-UP,
AUSTRALIANS OF PAY
SOUGHT BY VESSEL'S
CREW.
i APPEAL TO JUDGE DRAPER.
' An appeal on belialf of 23 seamen of the
iA 'Volumnia, who were ordered to be ina
prisoned for 14 days when found guilty of
ft breach of the Merchant Shipping Aot, by
( combining together to neglect their duty,
1 was made to Sir. Justice Draper at the Su
preme Court to-day. An interesting point
?Bis Honor is called upon to decide is whe
ther thft men, who signed articles abroad,
Are subject to an award of tho. Common
wealth Arbitration Court in view of thoir
?hip boinff under charter to tho Australian
Commonwealth Lino of Steamers.
Mr. R. D. Lane appeared on bohalf of
the appellants, and Mr. M. Q. Lavan (in
ttraeted by Messrs. Stone, James and Co,)
for the respondent, the master of the
▼esaal.
Stating tho facts, Mr. Lane said the
appeal was made on legal grounds. Tho
appellants were engaged temporarily at
Hull, and they were directed to proceed td
Rotterdam, and while there signed articles.
At that time they believed they were to be
engaged by a Scottish firm. Having passed
the doctor at Hull, counsel failed to under
stand how the original articles should not
apply. From Rotterdam they visited Con
tinental ports, thence to Cardiff, and on
September 2 were at Antwerp. At that
port they interviewed the eaptain, asking
him for mouey, and then for the first time
ascertained that the ship was under charter
to the Commonwealth Line of Steamers.
Another Commonwealth boat was at Ant
werp, and tho crew became informed of the
Australian rates, and concluded they wore
entitled to the hipher pay. 'While the
Commonwealth had 11 or 1J2 ships idle in
Sydney harbor ? ,' Mr. Lane proceeded.
Mr. Lavan interjected that there was no
evidence of Mr. Lane's assertion.
Mr. Lane : The Commonwealth have pone
outside their powers by chartering a Bri
tish ship.
Mr. Lavan .said it was the first time ap
pellant counsel had made that contention.
Mr. Lane : We say that anything ma
terial in showing the articles were not
valid or binding on the appellants is opeu
to argumont.
His Honor said a material part of the
«ase was that dealing with the charter
party in regard to which the construction
of the agreement would have to be deter
mined. Another point was as to what part
of tho Commonwealth award, assuming it
applied to the parties, could override the
provisions of the Merchant Shipping Aot.
If there were a breach of the Federal Ar
bitration Court award, the only matter that
could be raised by way of defence would
refer to a breach of the other Act, or was
it a matter which conld oulv be raised,
successfully or not, by way of enforcement
of award.
? Mr. Lavan: These men refused to work
unless they received the Australian rates
of pay, The question is, do they come
within any award entitling them to* do so 1
Mr. Lane submitted there wns the far
ther question concerning the articles, which
had been altered in material particulars.
Appellants claimed that owing to the change
in the possession of the ship, which took
place without their knowledge, they were
sot binding upon them.
His Honor thought the point was some
what belated.
Mr. Lane argued that if the articles were
not binding, they woro wholly inoperative,
because there wero so many and such ma
terial alterations, that the articles came to
nought. He submitted it was clear from
the articles and . the facta given in evi
dence that the owners had parted with pos
session of the ship. In ordinary circum
stances, the question arose ns to when a
man became an employer of a person. It
resolved itself into the question who was
in charge of the person employed. It
'was a well recognised principle that the
person in charge of the servant was tho
employer.
His Honor: Do you. say n ganger is tho
employer?
Mr. Lane: It depends on the authority
h* has. - ,
' His Honor: Of course it does. Tho same
applies to tho agent or person in charge.
Mr. Lane: Here we have the question
whether tho Commonwealth line or tho firm
owning the vessel are in control of the
crew. Tho captain is in thft control of
the charterer, and I submit the Common
wealth line become employers of the crew
trithin the meaning of the Commonwealth
Conciliation and Arbitration Act. Ah such
employers they were bound hv the award.
.' His Honor: Would yon say the Federal
award extended to a man in the North
Beat
Mr. Lane: Yes, in the case of an Aus
tralian ship or a ship the possession and
control of which has b&en taken over by
the Commonwealth Line.
His Honor: You say that while an Aus
tralian-owned ship is on the high seas it
is subject to the awards of tho Federal
Court!
Ms. Lane : I submit it is.
His Honor and counsel continued to
argue the scope of Federal awards, Con
tinuing, Mr. Lane contended that M'hon
the agreement was studied ns a whole and
heed taken of the powers of the charterer
It would be seen this was n case where the
charterer had full possession and control
of the vessel, the master and the crew.
He snbmitted that the ship's articles were
illegal. Assuming the Commonwealth Line
were in control, they woro the employers
of the crew. The Commonwealth Act im
posed penalties for working under a con
tract, which, in itself, was a breach of the
award. On that lino of argument the eon
tract was illegal, and under those circum
stances they wece not bound by the con
tract. At the timo the appellants teased
duty they were members of the Seamen's
Union.
Hia Honor: And working 'indev the pro
visions of the Merchant Shipping .A*
aud you cannot override the provisions of
that Act.
Mr. Lane: Those provisions are to a
great fcitesi overridden by our own -Navi-
gation Act.
His Honor: It might be done by Act of
Parliament, but you cannot override an
award. Either they are subject to the
Australian Act or not; in either case they
ere subject to tho Merchant Shipping Act.
Once the crew, became members of the
Seamen's Uuion, Mr. Lano argued, they
were bound by tho award and liable to pen*
alties for nou observance.
His Honor: If you could show the ar
ticles were void and everything done un
der the Merchant. Shipping Act was of no
effect it would be a defence. It only oc
curs to mo that, supposing tho articles
TVf.ro under tho Merchant Shipping Act,
and the ship a British ship, does it justify
the «rew in committing n* breach of the
Merchant Shipping Act merely because
they do not receivo the Australian rates
of pay. If they are entitled to them they
can sue.
Mr. Lane: If they are entitled to tho
'Australian rates and go on working they
are liable to tha penalties fixed under the
Federal Act for non-observance of the
sward. In fact, all parties woijd be lia
ble.
His Honor: Do you realise bow far
that would take you ??— -Take this case. A
ship is leaving on a voyage around the
world, her ports of call not disclosed, and
the crew is engaged at the Port of Lon
don under the Merchant Shipping Act— I
am not dealing with the question of owner
ship* When the ship reaches Australia,
because the rates of pay hero are higher
than at the port where tho men wore sign
ed on, are the, articles void?
Mr. Lane: I do not say that. I sub
mit that~here the situation hinges on the
change in possession of the. ship. When
tho articles were signed the ship was
ov;ned bv a Scottish firm. Subsequently
she waa 'chartered by tho Commonwealth
Line. Were tho duty of the crew othei?
than I have stated they would bring them
selves into conflict with the penal provi
sions of the Federal Act.
In conclusion, Mr. Lane declared that
bin Honor was entitled to grant a rescis
sion of the contract. Had they known
what was about to happen tho crew wjrald
bave refused to sign the articles.
For the respondent Mr. Lavan ventured
to suggest he would convince his Honor
the crew were luwiully engaged in Bng
lnnd and under proper articj.es. When they
reached Freiuantle, their first Australian
port, aud apparently acting on advice, they
'refused to carry out the law
ful orders of the master. Appel
lants appealed against the magistrate's
Unding that they combined with other
members of the crew to neglect duty un
flor the provisions of the Merchant Ship
ping Act. The magistrate found the Voi
umnia was a lkiu&u ship, that tho men
were lawiully engaged, and that they re
fused duty. Tho snip reached Fremantle
on October 23, and on every, day between
October 25 and 30 they refused to obey
tho master. ii' his Honor found the crow
? were lawfully engaged under the Merchant
Shipping Act and that they disobeyed the
uiaator, counsel submitted there was noth
ing to answer. The documentary evidence
was clear that the vessel was chartered to
tho Commonwealth Line, but the charter
was in no way departed from on material
dates, The men said their only complaint
fcns that they wanted the Australian ratos,
claiming they were subject to tho Fedora,
award. They did not join the uuion until
October 23 at Fremantlo and becauso thoy
did that and because the Commonwealth
Line had chartered the ship they claimed to
be entitled to the Australian rates aud if
they wero not paid them they would re
fuso to work. The crew waa employed
undo? the articles in England on behalf o£
the firm which owned the ship. They
were engaged by the master uud paid by
that firm, because the majority had allot
ments on tho iirni, who were thus their em
ployers, and the only people with whom
they had a contract. For those reasons
counsel submitted they could not sue the
charterers of tho ship for special wages.
These men were not members of the Aus
tralasian Union when engaged. The char
terers had no control over the master, o/fl.
certs or the crew. Pasted on the artioles
wero provisions dealing Avith this particular
voyage which was usual and in their pre
sent condition they were signed by the men.
There vvns no complaint as to alleged alter
ations from the time tho articles were sign
ed. Tho crow signed under the Merchant
Shipping Act for a voyage over a certain
penod. Were they to be allowed to demand
the rate oi' pay which suited them most
at any intermediate port they might visit?
It would be an intolerable position. He
submitted that the owners and not the char
terers wero the employers of the crew, that
thoy were lawfully engaged, signed valid
articles, did not como within any valid Aus
tralian award, and that they disoboyed tho
commands of tho master. Referring to a
recent decision of Mi'. Justice Powers, Mr.
Lavan contended finally that it covered
such cases as the present one.
In reply, Mr. L.ano denied that the men
refused duty in tho usual sense. Mr.
Justice Powers' decision was only that ho
could not make all charterers liable, which
was obvious.
Docision was reserved.
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