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

James v. Dillon [1822] NSWKR 7; [1822] NSWSupC 7

defamation - ship wreck - salvage

Supreme Court
Field J., December 1822
Source: Sydney Gazette, 2 January 1823 [1]

This was an action brought by the plaintiff, the late master and owner of the schooner Little Mary, to recover damages, estimated at £500 sterling, from the defendant, for certain words spoken by the defendant in the Police Office at Sydney, on the 7th of November, 1821. Mr. Norton, the plaintiff's solicitor, laid the case before the Judge in nearly the following words:
He stated that his client, in this case, was Mr. James the owner of the schooner Little Mary, a resident at Port Dalrymple, and that the defendant was Mr. Peter Dillon, commander and owner of the late East India ship Fatisalam, with which vessel he sailed from Bengal bound to these Colonies, with a valuable cargo, but was wrecked at Hunter's Islands, in Bass's Straits, in the month of July 1821; from whence he proceeded to Port Dalrymple in a boat; and on representing his misfortune to the plaintiff, the plaintiff kindly offered him the services of the said schooner Little Mary to proceed to the wreck, to remove such parts of it as he (the defendant) might deem advisable: that on the schooner's return to Port Dalrymple, Mr. David Smith, the then master of her, left her, and Mr. James, the owner, took command of her, and proceeded on to Sydney, where, shortly after his arrival (in September) the schooner was searched, and a quantity of goods found, which proved to be the property of the defendant; but Mr. James being a person of good repute, it could not be supposed that such goods had been plundered from the wreck and brought to Sydney with his knowledge and connivance; it was therefore suggested, that the men belonging to the schooner must have purloined and secreted them on board, unknown to the plaintiff Mr. James.
The defendant arrived in Sydney about the 5th of November, at which time the investigation took place at the Police Office in Sydney; and whilst the business was going on respecting the goods found on board the schooner, the defendant told the plaintiff he was the greatest little rogue in the country; that he (the plaintiff) had received his ( the defendant's) goods, and deserved to be hanged, or would be hanged; and that now, though 12 months had elapsed since this conversation had taken place, the defendant, instead of being sorry for what he had said, coolly and deliberately set in plea of justification.
Mr. Norton now, in a short and eloquent speech, endeavoured to impress on the minds of the learned Judge, and Members of the Court, the libellous nature of the words spoken by the defendant, and proceeded to call witnesses to prove the language made use of, when Mr. Edward Frank, Mr. Croker, late clerk in the Police Office, and others were called, all of whom proved that the work stated in the declaration was spoken by the defendant in the Police Office at Sydney.
Messrs. Riley and McVitie were then called, who bore testimony as to the character of the plaintiff; that they had known him many years, and always found him to be an upright honest man.
Messrs. Garling and Moore, solicitors for the defendant, then entered on the defence in the most able and professional manner. Mr. Garling stated, that the defendant in this case was Mr. Peter Dillon, of Calcutta, commander and owner of the late ship Fatisalam, from which place he sailed early in the year 1821, with his ship richly laden for the support; that after experiencing innumerable difficulties and privations at sea, occasioned by untoward winds and whether, he at length reached Hunter's Islands, at Bass's Straits, where the vessel was unfortunately wrecked, and a number of the crew and passengers died from the fatigues they had undergone in a long and perilous voyage. The defendant, after meeting with the above misfortune, proceeded to Port Dalrymple in an open boat, where he represented his misfortunes to the Commandant, who immediately engaged in the schooner Little Mary belonging to Mr. James, Mr. D. Smith master, to proceed to the wreck, for which services of the schooner Capt. Dillon afterwards paid £200 sterling; so that the services of the schooner were not kindly offered, as stated by the plaintiff's solicitor.
On the schooner's arrival at Port Dalrymple from Hunter's Islands, the defendant received information from his lascars that the wreck had been plundered by the schooner's crew; and, by public advertisement, he (the defendant) offered a reward of £50 for the discovery of the robbers. The plaintiff, on reading the advertisement, wrote a letter to Captain Dillon, stating, that instead of screening, he would be happy to render every assistance in bringing the proprietors of the piracy to justice; upon which the defendant wrote plaintiff a very grateful letter; but hereafter the difference between the plaintiff's mode of writing and acting will be observed.
When the former master (Mr. Smith) left the vessel at Port Dalrymple (at which place goods, the property of the defendants were found, which led to circumstances that induced the Magistrates of Launceston to commit Mr. Smith to take his trial before the Criminal Court). Mr. James took charge of her, and proceeded with her to Sydney; the defendant wrote to some of his friends in Sydney stating his having been robbed, and his suspicions of the property being on board the schooner Little Mary, and requesting that on her arrival in Sydney proper means might be used in endeavouring to obtain a restoration of the property. One of the crew of the schooner, having understood that a reward of 50 pounds had been offered for the discovery of the robbers, gave the information before the principal Magistrate of Police what came within his knowledge as to the goods being on board the schooner.
A search warrant [?] was accordingly granted, the vessel was searched; and the following goods found, the property of the defendant, under the plaintiff's bed cabin: viz. ten muskets, in the hold and fore-castle, a quantity of nankeen, nankeen trousers, canvas, twine, blocks, and various other articles of ships stores, and merchandise. The first witness called was Mr. Patrick Moore, who deposed, that he had received a letter from Captain Dillon requesting him to obtain a search warrant on the arrival of the schooner in Sydney; that in consequence of information he had received from one of the crew of the schooner he had done so, and went on board accompanied by the constables Thorn, Wilbow, and Field; that he stated to the plaintiff, Mr. James, that he had a warrant to search his vessel for goods which had been stolen from the wrecked of the ship Fatisalam, and, on going into the hold, the before mentioned goods were found, and under the main hatch a jib-sail, much discoloured by smoke, was found openly exposed to public view, which this witness and the constables new to be the property of Captain Dillon, from the information which they had received from the informer; this sale they wished to take away but was prevented by Mr. James and the mate, who both claimed it as belonging to the schooner; this witness, together with the constables, then went on shore, where they were informed that that much more property belonging to Captain Dillon, was still on board the schooner in consequence of which, they went on board again the following morning, accompanied by the informer, went to their great surprise they discovered that the jib-sail, which the day before had been found under the main hatch had been removed to the sleeping birth of the informer; they then proceeded to search further, and more goods, the property of Captain Dillon, were found; which, together with the mate of the vessel, they took in charge to the Police Office, where the mate was obliged ento [?] a recognizance for his appearance on Captain Dillon's arrival in Sydney from Port Dalrymple. The evidence of the three constables went to corroborate the testimony given by Moore.
The next witness called was John Connor, who deposed that he was a seaman belonging to the schooner Little Mary when she was engaged to proceed to the wreck of the Fatisalam, at Hunter's Islands; and whilst there, that his ship-mates had committed several robberies on the wreck; that on the schooner's return to Port Dalrymple, Mr. Smith, the then master of her, left her, and Mr. James took charge and proceeded to Sydney: that on the passage they wanted some rope, and Mr. James ordered one of the crew to go below and bring up a coil of coir rope, taken from the Fatisalam, meaning one of those that had been stolen, which was towed overboard to take the turns out of it, and it was then made use of for purposes required on board the schooner.
The schooner having met with contrary winds put into Jervis Bay, where it was found necessary to go on shore for a supply of fresh water; the vessel being short of fire-arms, to protect the boats' crew from the attacks of the natives, some muskets taken from the wreck of the Fatisalam were handed and loaded by Mr. James, at which time he cautioned his crew not to allow them to be found on board as he knew they belonged to Captain Dillon.
The next witness called by the plaintiff's attorney was Mr. D. Smith, former master of the schooner, this evidence went to prove that Mr. James knew nothing of the transaction. On cross examination this witness acknowledged that he had been committed to take his trial at Port Dalrymple. The next witness called was John Day, former mate of the schooner Little Mary, whose evidence appeared very unsatisfactory to either party; acknowledged on being cross-examined that he had been committed to take his trial for robbery at the wreck, and he admitted that a pair of trousers, the property of Captain Dillon, had been stript off Mr. James's steward by the constables.
Independent of the above clear proofs, it was a well-known fact, that Mr. James retained in his employ some of the crew who stood charged to take their trials before the Criminal Court, and others who acknowledged their guilt, and delivered up the goods in their possession belonging to Captain Dillon to the constables.
His Honor the Judge, in summing up observed, that no confidence whatever could be placed in the evidence of the two last witnesses, as they were implicated in the business, he therefore returned a verdict for the defendant as follows: "The Court finds a verdict for the defendant, considering him fully justified in using the words charged in the libel; and if the plaintiff himself were here, I do not know what might be the consequence."

Note

[1] As we see so often, among the longest and revealing cases were actions for defamation. This concerns a ship wreck in Bass Strait. See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2240 (no. 589).

Published by the Division of Law, Macquarie University