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

Winder v. Williams [1818] NSWKR 15; [1818] NSWSupC 15

bill of lading - ships' crews, custom of drinking the cargo

Supreme Court
Field J., 16 March 1818
Source: Sydney Gazette, 21 March 1818

The cause was determined in this Court last Monday, which derives considerable importance from the too frequent occurrence in these colonies of circumstances similar to those which gave rise to the action:
The plaintiff is a Mr. Winder, the defendant Mr. Williams, commander of the ship Fredrick of and from Bengal, which arrived here last December, and since sailed on her return voyage.
Mr. Garling appeared as the plaintiff's Solicitor, and Mr. Amos as the Agent and Solicitor of the defendant; and we need not observe, that these gentlemen conducted the matter with their usual energy and perspicuity.
The damages were laid at £200 and upwards; and the causes of the action were as follow:
The Frederick, defendant commander, touched at Batavia, on her way hither, and plaintiff being there waiting for an opportunity to bring down a cargo to this colony, agreed with Captain Williams for the shipments of 12 half leagers of arrack, and a quantity of keys, sugars and cases of Hollands containing 12 half gallons in each case; and the points of contention were of two kinds: first, overcharge for freightage arising from the defendants measuring at 40 cubic feet per ton instead of 50; and secondly, for the loss of 500 gallons of arrack, and a great proportion of the Hollands originally put on board, and which it was contended had not leaked out, but had been pilfered away, and drank out by the people who constituted the crew of the vessel.
The plaintiff's Solicitor laid down the case at considerable length; and therein stated that Captain Williams had on board several convicts for this colony; to whom he had granted the indulgence of being always upon deck, and assisting in the working of the vessel, which he contended would not have been the case if the ship's company had been sufficient for the purpose; and that the defalcations which had taken place were in a great measure bowling to this course; and several witnesses were called to establish the fact that the semen and prisoners were frequently in a state of intoxication, which could not otherwise have happened had they not had access to the hold, in which the plaintiff's cargo was lodged.
It was ably contended by Mr. Amos for the defendant that the immense loss of the spirits was attributable to leakage owing to the badness of the casks; but this argument was rebutted upon the principle that the casks were put on board in good condition, and a bill of lading given to that effect; and also that the chief officer of the vessel had declared that owing to one cask being taken out at sea and the vacuum not properly fuelled up, they had rolled about, and might from such neglect in their proper stowage, have occasioned a great part of the loss; and that this want of proper attention, which the plaintiff could not be supposed to have any part in course ought to fall upon the commander of the vessel, who was bound to deliver the goods in as good state as he had received them, the damages of the fees, &c. excepted.
Mr. Stewart, wharfinger, deposed that the casks of arrack, when landed, had not the appearance of casks that were liable to suffer considerably from leakage; and from other respectable testimonies it was to be inferred generally that the cargo had suffered from the incorrectness of the crew, and the prisoners who were treated as part of it, and that the mast was amenable for the losses sustained thereby.
The question, with regard to the mensuration of freight, was decided by the testimony of a gentleman, he said, that although the British usages were to measure tonnage at 50 feet, yet that the India custom being only 40 feet, there was here manifest error in the order of calculation, and verdict was upon both accounts given for the plaintiff.
We should not have entered into any notice of the above case, but for the necessity of impressing on the minds of our colonial seamen, the strangeness of predicament under which there irregularity and intemperance may place their masters and owners. In the present instance, the master of the ship has been obliged to pay for the irregularities of his crew during an entire voyage; and when it is remembered that scarcely a vessel leaves the port for the southward, or from hence hither with spirits on board, which are not shamefully wild, certainly we may claim the right of selecting this case as one essentially needful to the better putting of masters of vessels upon their guard against similar losses.

Published by the Division of Law, Macquarie University