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

John Robinson v. Charles Hook, agent of Robert Campbell [1810] NSWKR 5; [1810] NSWSupC 5

non-performance of employment agreement - Charles Hook - seal and fur trade - ships - maritime law

Court of Civil Jurisdiction
Bent J.A.,  25 September 1810
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1104 (case no. 33)[1]

[37] Writ to secure the sum of £100 being the penalty incurred by the non-performance on the part of the defendant of a certain agreement entered into between him and the plaintiff.

Defendant appears and pleads the general issue.

The plaintiff put in a memorial containing his case, which was read. It appeared from this that plaintiff was a mariner in the employ of defendant under certain articles of agreement, which he says were broken, and by which he became entitled to the penalty.

The articles of agreement, being admitted by both parties, were produced and read. They bore date 10th February 1810. They were not signed by Mr Campbell but defendant agreed not to be taken any advantage of that.

Robert Mason sworn says, I took command of the Brothers and sailed on March last from Port Jackson on a sealing voyage. John Robinson sailed with me as overseer of the sailing gang, in pursuance of certain articles of agreement entered into by him and others with Mr Campbell dated 10 February 1810. I first went to the open bay on the west coast of New Zealand, from there along the north coast to Cooks Straits. From Cook Straits I turned to the southward, examining the coast all the [38] way along to Banks Island, where I am [anchored] one night. From there I went to the south to Port Daniels on the coast of New Zealand. I found there two men out of 11 whom I had left at the Isle of Wight for the purposes of killing seals on a former voyage. I stand off and on there near five weeks. On the 3rd of May I anchored in Port Daniel, and on that same day I sent off the plaintiff, with Tucker one of the two men I found there, in a boat to an island called the Isle of Wight, about two leagues to the south of Port Daniel. There were four more men sent. On the 10th the boat returned with plaintiff, Tucker and the other four men, and brought with them 20 seal skins. These were the skins of 20 seals which they killed. I sent this boat even as far as a point called Jagged Point to look after the nine men whom I had left on the Isle of Wight, and who had I understood run away with the boat. I told them to touch at the Isle of Wight to see after some skins I supposed to be there. They told me when they came back that there were 2500 there. They could not find the men. In a few days after I proposed taking the vessel to the Isle of Wight to get those skins. After several efforts I could not succeed in getting the ship up to the isle, on account of a strong current and baffling winds. I then sent two boats' crews to the island to get these skins. The boats' crews got 2000 skins from the island, which had been salted by the men I left on the island on a former voyage. Robinson had charge of one of the boats, Nicholas Thompson of the other. Lewis and Liperson were in the boats. Robinson's boat is one of the ships. [39] Never refused obeying my commands.

Cross-examined by Mr Gordon. The request of Barrington did not induce me to return, but I returned because I thought it was best yourself. I conceived I had no chance to make a successful voyage. It was as much my interest as that of the men to get skins if I could. The order I received from Mr Hook and Mr Gordon not to victual the men was a verbal order.

On the part of the defendant.

Daniel Wilson was called who being sworn says I served as a sailor on board the Brothers in her last voyage, under the command of Mr Mason. After getting the skins on board from the Isle of Wight and going to Cooks Straits, where we were nearly lost, Barrington came to you and asked me if I would not speak to Captain Mason in regard to going home. I told him it would be of no use, as he would first overhaul the ... islands near Cape Egmont. Next evening he asked me again, I said I didn't wish to go but if you are going I'll go with you. All hands on board then went to Captain Mason and asked him to go home. He replied he would first overhaul those islands. He made the islands, but the aspect would lie up to them. He bore away. The men were ready to do as he pleased. I heard Mason say he would never let Brown come into his cabin again.

Thomas White called, sworn, says I was not with Captain Chaser in the Governor Bligh and was an officer on board the ship. When we were off Ragged Point, on the coast of New Zealand I saw a boat which came [40] on board of us. Brown was on the boat. They said there was a gang belonging to Mr Campbell, and were in distress. He said they were in expectation of the schooner Brothers coming for them. They had been left from the Brothers by Captain Mason on a former voyage to get seals.

           William Jenkins sworn, says Mr Hook and Mr Gordon desired me to tell Captain Mason that if he boils any more provisions for the men belonging to the last outfit, that he, Mason, should pay for it. Mr Hook intends to discharge Mr Mason and asked me to go on board and take charge of him and turn him out. But I told him I could not comply, she was entirely empty. I delivered this message to Mr Mason.

It was admitted that the plaintiff had signed articles, and sailed in the brig Aurora belonging to Lord and Williams. It was about three weeks since he appeared to sign articles.

The plaintiff says the defendant broke his agreement in not landing them on certain islands to get seals, as agreed on.

The court upon full consideration are of opinion that previous [41] to the return of the schooner Brothers to this port there was no breach of the agreement entered into between the plaintiff and defendant dated tenth February 1810, but in as much as it was agreed by those articles that they were to continue in form two years from the date thereof unless put an end to by mutual consent, and in as much as it appears that, by the evidence of Captain Mason and of William Jenkins, the defendant on the arrival of the ship in this port ordered said Captain Mason no longer to victual the crew of the said ship, of which the said plaintiff was one, and in fact the plaintiff was not victualled after that order, such order was a victual breach of the articles in that respect, and that the plaintiff was injured thereby, the court thereupon give judgment for the plaintiff, damages £15 and costs.

Note

[1] When sailors joined seal-catching ships, rather than receiving wages they were usually paid on the basis of a lay or share of the gross value of the catch at Sydney prices. Ordinary sailors usually received a one eightieth lay. They were also entitled to maintenance, even during breaks in the voyage: see also Brady v. Campbell, 1811.

Published by the Division of Law, Macquarie University