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Decisions of the Superior Courts of New South Wales, 1788-1899

Arkinstall v. Ferguson [1806] NSWKR 4; [1806] NSWSupC 4

false imprisonment - false imprisonment, no substantial charge - maritime law - ship - lie direct

Court of Civil Jurisdiction

Atkins J.A., 23 December 1806

Source:   Sydney Gazette 28 December 1806, 2 [1]

On Tuesday last an action was brought by Mr W. Arkinstall, acting steward of the Lucy private ship of war, against Mr Alexander Ferguson, his Commander, for false imprisonment, he having, at the order of Captain Ferguson, being confined on board in irons from the 20th of November last to the 16th of the present month. The plaintiff therefore lay his damages at £200.

The defendant admitting the charge, set up a plea in justification of that part of his conduct which became the grounds of action, and contended that what he had done was as a punishment of insolence on the side of the plaintiff, who had contradicted him, went on board, in terms tantamount to the lie direct. In support of which he called evidence, but neither of the witnesses recollected having heard any expression fall from Mr Arkinstall that admitted such a construction. From the evidence of Mr Masdin, Chief Officer, the dispute arose concerning a piece of beef laying open on deck, which Captain Ferguson remarked had weighed 320 wt. which he could prove; and that the plaintiff in whose charge was considered to be, made answer "that it was impossible he, the defendant, could prove that to have been the weight, as it never had been weighed at all"; upon which the defendant ordered him to be put in irons.

The question for consideration appeared to be, whether the defendant as Master of the Lucy, had made an improper use of his authority in confining the plaintiff in irons such a length of time, without being able to bring any substantial charge against him? And if so, it then rested with the court to award compensation as such a mode of treatment as would in their judgment entitle him to. After much deliberation a verdict was found for the plaintiff, damages £100 with costs of suit.

Note

[1] This is one of many early nineteenth century cases in which a sailor successfully sued the Master of his ship for excessive physical punishment.

See also Arkinstall v Ferguson, 23 December 1806, 2/8149; Arkinstall v Ferguson, 2 March 1807, 2/8149.

Published by the Division of Law, Macquarie University