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

Slater v Underwood [1811] NSWKR 4; [1811] NSWSupC 4

breach of articles - delivery of goods - maritime - articles upon lays - articles upon wages

Court of Civil Jurisdiction
Bent J.A.., 11 April 1811
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1105 (case no. 144)

[92] Writ for the sum of £800, being the penalty for the breach of certain articles of agreement bearing date the 13th day of February 1810, entered into by and between the said Oliver and Joseph.

           Plea general issue.

           The plaintiff exhibits a written statement of his case which is read and filed.

           Plaintiff exhibits to the court an agreement bearing date New South Wales, 13 February 1810 between the said Oliver Slater and Joseph Underwood which being admitted is read and filed.

           It appeared by this agreement that [93] the plaintiff was to sail in the ship Marian (the property of defendant) as linguist, to the Feiji Isles, assist in procuring a lay of sandal wood and proceed with the same to the China market, proceed a cargo and return to Sydney with the same. It was further agreed that in consideration of his services he was to receive at China £200 for a private investment, and £200 more on his return to Sydney. It was further agreed in case the ship could not procure a sufficient cargo of sandal wood at the Feijiis and deemed it necessary to return to Sydney, defendant was to receive only the sum of £250. The performance of the agreement was secured by each being bound to the other in the sum of £800.

           It was admitted that the ship Marian sailed from Sydney on the 15th April 1810 directly to Bengal (without trading at the Feijiis) where she arrived on the 1st August 1810. That she was chartered to government there on the 27th August. That another ship (the Campbell Macquarie ) was there purchased by Mr Underwood and returned with a cargo to this port on the 3rd March 1811. And that the defendant sailed in the Marian and returned in the Campbell Macquarie, and during the whole time from the 15th April 1810 to the 3rd March 1811 continued in plaintiff's employ.

           The whole that the defendant has raised [94] was £16.10.0 before his departure and 255 rupees at Bengal.

Defendant's case.

Defendant exhibits a written statement of his case which is read and filed and in which defendant stated that before the departure of the Marian from Sydney, the voyage was altered with the knowledge and consent of the plaintiff and that the agreement of the 13th February 1810 was then agreed to be annulled. That the cancelling was neglected and that after the Marian was chartered to government plaintiff agreed to enter into a prior agreement to sail in the Campbell Macquarie and a memorandum was drawn up for that purpose but not executed, and in support of this defendant calls the following witnesses.

           James Frost sworn, says I am clerk to Mr Joseph Underwood but at the time of this business I was clerk to his brother. About the month of April 1810 I recollect mention being made of the business coming from the Feijiis. It was before the departure of the Marian. It was then reported that sandal wood could not be procured in sufficient quantities from the Feijiis. It was found that the vessel had an incomplete cargo. The Marian was a much larger vessel than his. Before the arrival of the vessel, the crew of the Marian had signed articles upon lays to go in her to procure sandal wood. The circumstance was communicated to the ship's crew and it was proposed to them to relinquish [95] these articles and go to Bengal upon wages. Many of the crew consented to this proposal, and those who did not were discharged. This took place some days before the sailing of the Marian. I went on board for the purpose of effecting this. I mustered the crew and told them of the circumstances above in the presence of Captain Brice. Slater was considered as an officer. I cannot say that he was present. It never was communicated to him in my presence that the voyage was altered. I think the circumstances were so notorious that they could hardly have escaped Slater's knowledge. I recollect that the articles intended to procure at Feijiis sandal wood were sent on shore, but I do not know by whom, or whether Slater knew it. I know of the agreement of the 13th February. I do not know of any past agreement nor that any proposal was made to Slater to conceal the former... wages.

           Mr James Underwood sworn on the voir dire says, I am not interested in the cause either directly or indirectly, nor am I in partnership with my brother either in the Marian or Campbell Macquarie, nor have any comment therein.

           Sworn in chief says there was a report on the arrival of the Venus that she had not been able to procure a complete cargo of sandal wood at the Feijiis. On that account my brother thought it prudent to alter the voyage of the Marian and to send her direct to Bengal. This proposed alternative was communicated in my presence to the plaintiff. My brother said in my presence to Slater that the voyage to the Feijiis would be a sinking voyage for all parties. Slater afterwards mentioned to me that it [96] would be better to preserve the articles meant for the Feijiis, especially the tenth, as they might do at a future time. He said that he would be satisfied to go to Bengal in the Marian on Chief Officer's wages, as he was an ailing man, and the sea would do him good and as there was no vessel likely to go to the Feijiis. I always supposed the articles to be given up. He knew that my brother bought the sandal wood out of the [ground] that it was very bad, and that the voyage was altered three weeks before he sailed. The ship was cleared direct for Bengal and took in 40 ton of oil for that place which the plaintiff knew of.

           Glass bottles originally meant for the Feijiis were left on board and were the only articles meant for that place that were left on board.

           James Kelly sworn, says I sailed from this port in the Marian as Master. One evening at Calcutta, Slater came on board the Campbell Macquarie and I asked him if he had drawn his advance. He said he had drawn 240 rupees from Mr Underwood and Mr Underwood had proposed to give him £15 per month for the time he was on board the Marian, and also a cask of rum on his arrival in Port Jackson. But he had not settled on it then. I asked him afterwards and he said he had not rightly settled it, but that he had £15 per month from Mr Underwood. I considered the 240 rupees was the plaintiff's advance for two months. It amounts exactly to that. He had no particular situation in the ship. I knew [97] that the ship was going directly to Bengal nearly 20 days before she sailed. The other officers knew it. It was generally known by the ship's company, but whether by Slater I can't really say. It was no secret at all. Slater was very bitter on board the ship before he went to sea.

           Captain Siddins sworn, says I sailed in the Marian as Chief Officer to Calcutta. When Mr Robert Campbell (assistant Naval Officer) come on board with the ship's papers two or three days before she sailed, he asked me whether we were going to the Feijiis. I told him I could not tell, but I believed we were going direct to Bengal. I commanded the Campbell Macquarie from India. Slater came in the ship. I employed him as an officer. I did not know upon what terms he came on board. An agreement was proposed to be executed between the plaintiff and defendant at Calcutta, after the purchase of the Campbell Macquarie, in which Mr Underwood proposed to employ Slater on board the ship at £15 per month and a cask of spirits. It was not executed. I understood an account of Slater refusing to consent to it. The Chief Mate had £15 per month.

           Defendant's case closes.

           The plaintiff did not offer any evidence to ascertain the quantum of damages sustained. The court being cleared again called on all parties, when upon the proposal of the court with the consent of all [98] parties the court give judgment for the plaintiff, damages £210.

The Court hereupon adjourned this sittings until Wednesday next the 17 th Inst_.   at nine of the Clock in the forenoon of the same day

 

                                                                       By the Court

                                                                                   Ellis Bent J.A.

Published by the Division of Law, Macquarie University