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

The Governor v. Ritchie [1819] NSWKR 6; [1819] NSWSupC 6

shipping bond - East India Company - Crown, action by - appeals

Supreme Court
Field J., 15 September 1819
Source: Sydney Gazette 18 September 1819[1]

This was an action against the late master of the Greyhound, upon the usual bond entered into by masters of ships coming to this port, not to suffer any person, convict or free, to be carried away without permission of the Governor, not to land any person in their East India Company's Territories, without their licence, and not to quit the port without a proper clearance. The action was brought for each of these breaches; and a penalty to be recovered was £500 upon each. It appeared by the evidence principally of Hannah Harris herself, a free native of this Territory, that being upon very bad terms with her sister, with whom she then lived in Sydney, she was determined to quit the Colony, and with that view, had repeatedly applied to the defendant to take her to India, upon the offer of £50, which the defendant always refused to do to many persons, by reason of the general objections of having a female on board a ship. On the evening before the ship sailed, in spite of this refusal, the witness went on board with her luggage, which was never allowed to be removed from her boat. Upon her coming on board, the defendant said, "What brings that woman on board?" to which the mate answered, "I don't know." The defendant then insisted upon her returning, which she refused to do, till the mate forced her. She then went down the harbour in her boat, to wait for the vessel's sailing; but finding the ship did not come out that night, she returned on shore and went to seek the defendant, but without success. On the next morning the ship sailed; and she got into a boat from Bennelong's Point; and Mr. Ritchie, a friend of the defendant's, who was passing in another boat, induced her waterman to take her on board the Greyhound. It did not appear that this was done with the defendant's privity. The ship was going out of the heads, when she laid hold of a rope and got up the ship's side. The defendant was then below; and she remained on the quarterdeck till the boat which brought her was nearly out of sight. She then went down into the cabin, where the defendant was at breakfast with some military passengers. The defendant said, "What brings you here?" And went on deck to the mate, and told him to send her on shore. He answered that her boat was on shore and that it was impossible. The defendant then asked the mate why he suffered her to come on board and her boat to go away; to which the mate answered that he had something else to do than to mind her from this time, the witness lived with the defendant as his mistress; and was brought back by him from Calcutta to this Colony. Upon her examination by the Judge, she said she remained for five or six minutes on deck before she went down to the defendant; and that neither the mate nor any of the crew gave him any notice of her coming on board; but the sailors were mostly lascars. The wind was blowing a stiff breeze from the westward off the shore; and although the pilot boat had left the vessel over the boat which put her on board was not many minutes before it regained the heads and was lost to the witness's sight; and it appeared to the Court that the ship might have laid to till her boat could be lowered down and should return, after putting the witness on shore; or the vessel might have signalized that some body had been smuggled on board; and Mr. Justice Field said that if the defendant had lost days in sending the witness on shore, he should have preferred that lost to the forfeiture of his bond by suffering her to be carried away from the Colony surreptitiously. It was quite clear that the defendant might have returned her, if he had taken the palms?: and when the Court saw him reaping the fruits of her coming on board, they could not but suspect, particularly from the circumstances of no notice being at first taken of her joining the ship and her boat being suffered to go away, that, in spite of all the testimony to the contrary that had been adduced, the defendant had also sown the seed of this stratagem. Indeed the conduct of the mate had been so grossly negligent in openly permitting her to be embarked, that without saying that a master is liable to the penalty of his bond for all persons secreted on board by his sailors, the learned Judge should hold in such a case as this that if the defendant suffered his officers to consider that they had something else to do than to prevent convicts or others from being carried away from the Colony, and that they might remain on deck till they chose to report themselves to the master, this was such a suffering to be carried away as would make the defendant liable for the permitted carelessness of his crew, and bring him fairly within the word and spirit of the bond. But the Court were not driven in this construction, since the defendant's suffering the witness to remain on board after he knew of her embarkation and when it was possible still to have put her on shore was clearly proved; and the plaintiff was therefore entitled to recover the first penalty.
The second penalty could not be recovered, because Ceylon, where it was proved the defendant had landed the witness by reason of ill-health is not one of the East India Company's Territories. But it appearing by the evidence of the Governor's Secretary that every passage made should be inspected in the clearance, and that the witness's was not, the Court held that the breach of the third condition of the bond was consequence upon that of the [?]; and the plaintiff was therefore entitled to a verdict of £1000 debt, damages 40s.

Note

[1] One of the devices used to discourage ships from removing convicts from the colony was the use of large bonds. This also prevented the departure of free persons without the Governor's permission.

Even though the Governor was a litigant, Ritchie appealed against this decision to the Court of Appeal. The Governor, assisted by the Judge Advocate, was the sole judge of that court. Governor Macquarie confirmed the decision of the Surpeme Court. See Minute Books (Court of Appeals), 16 June 1817-20 April 1824, State Records N.S.W., 4/6604 at 35, 39, 41; and see Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, 9/2220 (no. 202).

Published by the Division of Law, Macquarie University