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HIGH COURT OF CALCUTTA
P. B. Mukharji
NICHOLAS SCHINAS - Appellant
Versus
NEMAZIE - Respondent
Original Suit 20 Of 1943
Decided On : MARCH 12, 1952
SEAMAN'S WAGES - CONTRACT OF SERVICE - TIME CONTRACT - DISCHARGE - WAGES - RIGHT TO WAGES - MARITIME LAW - JURISDICTION - CARRYING ON BUSINESS - LETTERS PATENT, CLAUSE 12.
Fact of the Case:
The plaintiff, a Greek sailor, was employed as a Chief Steward on the defendant's ship, S. S. Ronin, under a Spanish American master, flying the flag of the Republic of Panama. The ship arrived in Calcutta on or about 2nd or 3rd June 1941. The plaintiff was admitted to the Presidency General Hospital suffering from bronchitis and asthma and underwent treatment for 22 days. He was again in the Howrah General Hospital for another three weeks. He signed the plaint on 10-12-1942, more than one year and a half after his arrival in Calcutta. He presented the plaint on 7-1-1943. He sues as a pauper one Nemazie, owner of S. S. Ronin for the sum of ES. 13004 as his salary for 1 year 5 months and 21 days from 10-6-1941 to the 30-11-1942, as the Chief Steward of the ship at 64 per month coming altogether to and 1132 16s. which is said to be the equivalent of Its. 14104 at the rate of 1s. 6d. to the rupee. He gives credit against this sum for the amount of Rs. 1100 admitted to have been received by the plaintiff in driblets from time to time subsequent to 9-6-1941.
Finding of the Court:
1. The contract of service in this case is said to be contained in the ship's Articles. The contract is pleaded to be for voyage commencing at New York on or about 27-2-1941 and thence to India and to end at the same port in the United States of America as might be determined by the Master. The Articles are pleaded to have been executed at the port of New York. 2. The plaintiff was employed as assistant Steward but was also allowed to act as the Chief Steward for the periods mentioned. 3. The plaintiff did not sign off the vessel's articles on 9-6-1941, in the sense of being discharged from service. 4. The plaintiff is entitled to his wages for 3 months 10/11 days at 80 dollars a month-which will come to 214 dollars altogether. 5. The plaintiff is entitled to a sum of Rs. 1,070 in Indian currency. 6. Approximately the sum of Rs. 7l42 had been paid on account of boarding, lodging and medical expenses of the plaintiff. 7. The suit is barred by limitation against the second defendant. 8. The plaintiff has no cause of action against the second defendant. 9. The plaintiff has a cause of action against the first defendant. 10. The first defendant can be said to be carrying on business within the jurisdiction through his agents, defendant 2. 11. This Court has jurisdiction to entertain this suit against defendant 1.
Issues: 1. Was the plaintiff employed by defendant 1, as a Chief Steward of S. S. 'ronin'? If not, in what capacity was the plaintiff employed? 2. What were the terms of the plaintiff's employment? 3. Did the plaintiff sign off on 9-6-1941? Did the plaintiff render any service to the defendant 1, after 9-6-1941? 4. Is the plaintiff entitled to any salary for any period subsequent to 9-6-1941? 5. Was the plaintiff paid his salary in full on or about the 28-6-1941, by defendant 2, as agent of defendant 1? 6. Did the defendant 2, as agent of defendant l, pay Rs. 7,142 to the plaintiff between the 2-6-1941, and 19-6-1943 on account of board, lodging and medical expenses? 7. Is the suit barred by limitation against defendant 2 ? 8. Has the plaintiff any cause of action against either of the two defendants? 9. Is defendants 1 carrying on business through defendant 2 ? If not, has the Court jurisdiction to entertain this suit against defendant 1 ? 10. To what reliefs, if any, is the plaintiff entitled ?
Ratio Decidendi: 1. The contract was one for 6 months from 27-2-1941 expiring on 27-8-1941. 2. The Indian Merchant Shipping Act applies to this case. 3. The lex fori should be applied to the claim for wages. 4. The plaintiff did not render any service to the first defendant after 9th June 1941. 5. The plaintiff is entitled to his wages subsequent to 9-6-1941, and for a period till 27-8-1941. 6. The suit is barred by limitation against the second defendant. 7. The plaintiff has no cause of action against the second defendant. 8. The plaintiff has a cause of action against the first defendant. 9. The first defendant can be said to be carrying on business within the jurisdiction through his agents, defendant 2. 10. This Court has jurisdiction to entertain this suit against defendant 1.
Final Decision: The suit against the defendant 2 is dismissed. The plaintiff shall have judgment for the sum of Rs. 1070/ -. The judgment shall carry interest at 6% per annum until payment, and there will be interim interest also at the same rate. No special order as to costs.
( 1 ) THIS is not the legendary maritime Saga but is a now Odyssy where a modern Ulysses has not returned home from his wanderings. It is the story of a Greek Sailor left derelict at the Port of Calcutta. He sailed on 27-2-1941, from New York by S. S. Eonin under a Spanish American master, flying the flag of the Republic of Panama with that unlucky number of 13 Greeks in the crew. S. S. Ronin arrived in Calcutta on or about the 2nd or 3-6-1941. Immediately on his arrival in Calcutta he had to be admitted to the Presidency General Hospital suffering from bronchitis and asthma and there underwent treatment for 22 days. Coming out from that hospital he was again in the Howrah General Hospital for another three weeks.
( 2 ) HE signed this plaint on 10-12-1942, more than one year and a half after his arrival in Calcutta. He presented the plaint on 7-1-1943. He sues as a pauper one Nemazie, owner of S. S. Ronin for the sum of ES. 13004 as his salary for 1 year 5 months and 21 days from 10-6-1941 to the 30-11-1942, as the Chief Steward of the ship at 64 per month coming altogether to and 1132 16s. which is said to be the equivalent of Its. 14104 at the rate of 1s. 6d. to the rupee. He gives credit against this sum for the amount of Rs. 1100 admitted to have been received by the plaintiff in driblets from time to time subsequent to 9-6-1941. This is the only subject matter of this suit and the only present controversy between the parties.
( 3 ) BEFORE the suit proceeds even to the stage of the written statement by the defendants there follows a strange interlude for over a year and four months. The plaintiff was arrested by the Calcutta Police on 24-1-1943, and despatched via Cochin and Aden to Alexandria, the then seat of the Greek Government in the last War when. Greece was under the occupation of Germany, to answer certain charges which are not relevant for purposes of this suit. The plaintiff was acquitted of all such charges. Then began the plaintiff's return journey to Calcutta. He approached a Greek ship by the name of S. S. Nichostin and signed on as a Galley boy or a cook. His next halt was Aden where he stayed for 5 days. Thereafter he took another ship and sailed away as an Assistant Cook to Souths Africa. From there he was brought back to Egypt and then to Suez where he was disembarked. Prom Suez he says he returned to Calcutta by another ship S. S. Victorious on the 28-5-1944. That is the interlude between 24-1-1943 and 28-5-1944.
( 4 ) ENRAGED by Neptune's disfavours the plaintiff now invoked the Muses of the Law. He turned his attention to the suit which he had filed for relief.
( 5 ) THIS suit which was instituted on 7-1-1943, but had made no progress was now revived by his taking out the writ of summons and serving it upon the defendant Nemazie on the (?) June 1944. He also brought another suit being suit no. 900 of 1944 against defendant Lionel Edwards Ltd. and the Greek Consul for damages for malicious prosecution and false imprisonment which was first dismissed by Edgley J. But the plaintiff appealed and finally obtained relief from the Court of Appeal on 7-7-1948, for the sum of Rs. 7500 as damages.
( 6 ) IN this suit the plaint was amended on 13-9-1946, by adding Lionel Edwards Ltd. as the second defendant and the two new paras. 3 (a) and 3 (b) to the plaint. The written statements were filed by the two defendants on 3-1-1949, and the additional written statements of the two defendants were filed on 27-2-1950.
( 7 ) THE suit, as constituted after the amendment, is a claim by the plaintiff for the sum of Rs. 13004 as salary due for 1 year 5 months and 21 days from 10-6-1941 to 30-11-1942 against the defendant 1, Nemazie said to be carrying on business through his agent, the defendant 2, Lionel Edwards Ltd. within jurisdiction and also against the defendant 2, Lionel Edwards Ltd. Both principal and agent are sued at the same time and in the same suit.
( 8 ) IN my judgment the suit against
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