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

Wood v. Campbell [1812] NSWKR 1; [1812] NSWSupC 1

maritime law - seal and fur trade - breach of contract - work and labour  - recovery of wages - deficiency of provisions - breach of Articles -Campbell Island Macquarie Island

Court of Civil Jurisdiction
Bent J.A., 15 and 20 January 1812
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1107 (case nos. 12 and 200)[1]

15 January 1812, 5/1107-12

[9] John Wood, mariner, plaintiff and Robert Campbell esq. who appears by George Crossley his agent, defendant

Special writ in which the plaintiff declareth that the defendant is indebted to the plaintiff in the sum of £500.0.0 sterling for a certain quantity of oil skins, spars, boat, coats, and cedar due to him by a certain agreement between the plaintiff and defendant for his services and labour as a mariner and such in the employ of and friend by defendant.

There were counts for work and labour, goods sold and also the money counts. Damages £750.

Defendant by his agent aforesaid appears and denies the cause of action as stated in the Writ, and also pleads a set-off.

The plaintiff now exhibited a written statement of his case which is read, and in which he states that this action was brought to recover first the 40th lay on share of a quantity of oil, seal skins, and other substances all matters procured and brought to the port at [10] different times by the Perseverance and Mary Sally to the former of which ships plaintiff belonged and was second officer as by the articles of a ship bearing date 30th September 1809 in force for 18 months.

Second. To recover wages for a certain time in which he continued in the employ of the defendant beyond the time agreed for.

Thirrdly. To recover a compensation for a deficiency of provisions whilst in such employ.

Fourthly. To recover the sum of £100, being a penal sum in which the contracting partners were mutually bound in case of a breach of the articles of 30th September 1809, by those articles.

The defendant admits that the plaintiff entered into the service of the defendant on board the Perseverance in virtue of the above articles, and sailed in that ship as second officer on the 40th lay to prosecute the intended voyage a few days after the date of the articles, and that he assisted in procuring a certain quantity of skins and oil, viz. 34062 seal skins, 47 ton and 147 gallons of elephant oil, 33 spars, of all which he is entitled to the 40th lay and also to the like lay upon the sum of £350 being the profits of a voyage performed by the Perseverance to Newcastle.

It is admitted that the Perseverance sailed on the 23rd October 1809, that plaintiff sailed as second officer on board of her. That from this time to 2nd October 1810 the ship procured only 827 skins. The Perseverance returned to Sydney [11] in April 1810. Before April 1810 she discovered Campbell Island when she left part of her crew. John Wood was left at Campbell Island with other men. In the latter end of June or beginning of July, she again sailed with supplies of provisions for the men on Campbell Island. On the passage there she discovered Macquarie Island. Captain Hasselburgh the Master then landed the major part of the people he had on board in July, and did not proceed to Campbell Island but returned immediately to Sydney for fresh supplies of provisions and salt, as there were great hopes of success at Macquarie Island the 2nd day of October 1810; previous to which the men landed in July at Macquarie Island had obtained 827 skins. After landing the gang in October 1810 she sailed out for Campbell Island with supplies and provisions and also to bring away the men and such oil as they had procured. In the harbour of Campbell Island on the 4th Nov 1810 Captain Hasselburgh lost his life. Robert Murray succeeded to the command of the vessel. Murray and Wood took on board all the men and such oil as they had procured, viz. 47 tons, 147 [gallons], and returned to Sydney with wood and the others some time in January 1812. Wood sailed in her as second officer. The first article was entered into between plaintiff and defendant. She at this time took down fresh supplies of provisions and salt, and brought from the island 35740 [12] seal skins which had been procured jointly by the gang landed there in July 1810, and by the gang landed there in October 1810. The ship also brought away the gang landed there in July 1810. The two gangs jointly procured altogether 56974 skins. These are as follows,

2 March 1811

Brought up from Macquarie Island

by the Elizabeth and Mary                                                       17037

31st October 1811 and per Perseverance                                35740

Paid to Captain Wilkinson for a boat                          166

Remaining on the island                                              4031

_____

56974

By the articles of 30th September 1809, 21 men in the whole were shipped on board the Perseverance.

By the articles of 1st September 1810, 15 men were then shipped on board the said vessel.

The articles dated 30th September 1809 produced and read. The articles dated 1 September 1810 produced and read.

Mr James Gordon called by plaintiff, sworn says I sailed in the Elizabeth and Mary on the 20th October 1810. That vessel was chartered by Mr Hook, general agent for the defendant, to carry provisions and a gang of men to Macquarie Island. I was in command of her. I arrived at the Macquarie Island on the last day of December 1810. The gang I carried down did not join the gang previously left there in the service of Mr Campbell. I did not take any provisions in the Elizabeth and Mary for those gangs.

Questioned by the defendant. In July last Captain Hasselburgh took down in the Perseverance for those [13] gangs, 7000 or 8000 lbs of bread and as much pork. I have offered Wood the plaintiff a lay upon the division of the skins procured by the two gangs, and upon the oil and other things. I believe the plaintiff has actually received more than that lay would amount to.

Questioned by the court. The men employed on board these ships have always a fixed return, both at sea and when landed for the purposes of sealing.

The customary ration given to Mr Campbell seamen 7 pounds of pork, 8 pounds of bread or flour and one pound sugar a weekly. This ration is given as long as the provisions last. A compensation is generally given in case of a deficiency. We have generally given ten shillings per week in case of an active deficiency. The entire of the skins could not have been brought within the 18 months. The 15 men sent down by virtue of the second articles were of material assistance. The men landed by virtue of the first articles could not have been procured the same quantity of skins in the same time.

Miles Holding sworn, says I am at present Master of the brig Perseverance. I was landed at Macquarie Island by that vessel on 18th July 1810. I was then first mate. I was principal overseer of the gang that left on that island. There are still remaining there 4031 skins procured by the gang landed in July and October 1810. I do not conceive that those skins could have been brought him before by the Perseverance. At the time I took on board that vessel the 35740 skins, I was obliged to cut my cable and could not safely put back for the remainder. Had it not been for the deficiency of provisions the men would have been able to procure a greater quality of skins. Nine months provisions were landed in July 1810 for eight men. Sixteen men there were landed in October following. [14] I believe nine months' provisions were landed with them. We were out of provisions in the latter end of May 1811. I think that 12 men with the entire quantity of provisions which were landed might have procured the same quantity of skins as the 24 men on that quantity of provisions. I think so because in that case there would have been no deficiency of provisions among the 12 men. After the provisions were expended a considerable quantity of the men's time was taken up in searching for food. After the expiration of the 18 months I refused to discharge the plaintiff from the service of the vessel. I believe such discharge is necessary before he could be employed elsewhere. I never sailed under two articles, I have never known it. There were a sufficiency of skins on the island to employ four or five gangs. I was overseer over the whole twenty four.

Questioned by the defendant. The two separate articles were read to the men.

Mr James Gordon again questioned by the court, says I offered the plaintiff discharge in November last.

Miles Holding questioned by the court, further says I believe all the skins viz. 56974 with the exception of very few perhaps 50 or 60 were procured before the expiration of the articles of 30th September 1809, but not delivered. After that time several of them who signed that agreement said they would seal no longer. The seals were getting very few. There was no very natural deficiency until after the expiration of that article of agreement.

[15] Anthony Kearns sworn, says I was landed on the 2nd October 1810 at Macquarie Island and signed the first articles. The party then on the island objected to the new party unless they were to be considered as one party. Captain Hasselburgh said they were to be considered as one party, to be one gang. He said he had the owner's instructions to that effect. I heard Mr Gordon also say when he arrived that they were to be considered as one gang. Ned McCarrol told him the men were uneasy. Mr Gordon then made that reply, and added that they might thank him for making that addition to their gang. We were not out of dry provisions before the expiration of the first articles. We were out of wet provisions. We could have procured a considerable quantity of some skins had we not been out of wet provisions.

By the journal kept by Miles Holding it appeared that the sugar and meat were expended on the 25th March 1811.

Joseph Murray sworn, says I was one of the men landed at Campbell 's Island by the Perseverance. I continued there for some months. We were out of provisions for three or four months.

The defendant now states that the plaintiff is not entitled to his 40th lay upon the whole quantity of skins procured by the two gangs, but only upon the proportionable quantity procured by those who signed the first article of agreements, viz. 34062 skins etc., and further states that the [16] plaintiff has been overpaid by the defendant to the amount of £50 or £60.

Mr Henry Kable sworn, says I have been much concerned as a merchant in the sealing trade. I have sent down in the same ship both at one time and at different times two separate gangs under two separate articles to the same island. They have been put together to work as one gang. In these cases the quantity of skins were always divided proportionably to the number of gangs, and each man had his say upon the division allotted to the gang which he belonged.

Mr James Underwood sworn, says I have been a good deal concerned as a merchant in the sealing trade. I sent down two gangs under the separate articles of the Antipodes. The gangs join together. One overseer was left in charge of both. They divided the number of skins they procured according to the number of men in each gang, and each man had his lay upon the quantity of skins allotted to the gang to which he belonged. I believe this to be always the custom. They are considered as if they belong to two different merchants.

Mr Lord sworn, says I have been a good deal concerned in the sealing trade. I have heard the whole of this case and never knew of any similar to it in my own concerns.

[17] John Archer sworn says, I have been clerk to Mr Kable for 11 or 12 years. I am well acquainted with the custom of sealing trade and settled a number of accounts with men employed therein. I have understood it to be custom where two separate gangs are employed by separate articles in the same ship by the same owner, and join or [mite] together, they divide the skins procured proportionably between the two gangs and then calculate the respective lays upon each divided proportion. We had once a case of that kind, and settled with the skin on that principle.

Mr James Gordon sworn, says I made out the account now procured from Mr Campbell's books. It is an account of monies and goods furnished to the plaintiff on account of his lay. The total is £358.19.7. The monies and goods have actually been delivered to Wood to the best of my knowledge. They were not all delivered by me. Except the three articles issued in the bill, all the monies advanced to Wood were in approved bills. I calculated the value of the lay due to Wood. I believe it to be accurate upon the principle on which it is calculated.

The case being here closed, the court take time for consideration, and postpone giving judgment.

The court hereupon adjourn until Friday at 10 o'clock.

 

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 20 January 1812, 5/1107 (case no. 20)

 

John Wood Mariner, plaintiff and

Robert Campbell esq. etc. defendant

[22] For former proceedings in this case see above.

The court having [23] heard and maturely considered the evidence produced as well by their plaintiff as the defendant now give, judgment for the plaintiff, damages £16.19.9½, costs £2.4.10.

Note

[1] See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 163-165. On Campbell 's commercial ventures, see M. Steven, Merchant Campbell 1769-1846: a Study of Colonial Trade, Oxford University Press, Melbourne, 1965.

Published by the Division of Law, Macquarie University