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

Hourston v Norris [1825] NSWSupC 37

wages - master and servant - ship's crew - articles of agreement - entire contracts rule - trover

Supreme Court of New South Wales

Stephen J., 2 September 1825

Source: Australian, 8 September 1825

 

This was an action for wages due to the plaintiff, as carpenter on board the ship Hope; of which the defendant was Master.[1 ]

The circumstances of this case, as detailed to the Court, were as follow. The carpenter entered on board the Hope, in the port of London, as ship's carpenter, under a contract to perform a voyage from London to this Colony, touching at the Cape of Good Hope, and subsequently at Van Diemen's Land, and from thence to return to London. The plaintiff in pursuance of his contract came out to this Colony but it would appear that the defendant on his arrival here, thought fit to make an intermediate voyage to the Isle of France. After a long controversy on the subject, it was eventually agreed among all hands, that the defendant should allow the mariners port wages, to perform the new undertaking. In consequence of these fresh stipulations, and with an express agreement that the plaintiff, on his return to this port, should receive a legal discharge from the ship's books, the plaintiff went the voyage; and on the return of the vessel to this Colony, insisted upon his right of discharge, which was not immediately granted him. It was urged as a singular feature in the present case, that after the vessel had sailed from the Cape of Good Hope, at which port she had touched on her passage from England to this Colony, an alteration had been made in the ship's articles, relating to the master and the seamen, without the concurrence or knowledge of the latter. There had been an interlineation of the following words: "To continue on the same terms as here specified, on entering upon any intermediate voyage." It was upon these words that the master insisted on their right to proceed. The Captain, it would seem on a discovery of the interlineation, had agreed to give the parties concerned, port wages; the plaintiff, therefore, it was contended, under such circumstances, was entitled to recover the amount of wages due to him.

On behalf of the defendant it was stated that the defendant was not in point of fact the first master appointed for the vessel. A Mr. John Macfarlane had been deputed as Commander, and in pursuance of such appointment had actually taken the ship from the port at London, so far as Falmouth; but owing to some circumstances which happened to come under the knowledge of the owners, it was immediately arranged among the owners that another master should be appointed; and their choice accordingly fell upon the defendant to this action. The case therefore stood on this footing, that the engagement had been entered into between the owners and the mariners, and not with the master.

Mr. Stephen, in summing up, was of opinion that the Captain of a ship was answerable to a seaman for his wages, as the owners of the vessel necessarily reposed a great share of confidence in the master for the navigation of the ship. It could never be held as a principle of law that because a seaman's agreement was made between him and the owners, that his Captain was not equally responsible. It had been argued for the defendant that in a case where a master may undertake to promise an advance of wages to a seaman in order to prosecute his voyage, that undertaking on his part was not binding. A seaman might say to his commander, when perhaps the ship may be in distress, I shall not do my duty, &c. unless you agree to give an advance of wages; but if the Captain agreed to his demand in order to save the ship, he was in point of law not liable for such promise. But those instances were widely different from the present case; the plaintiff was not compelled to go to any intermediate voyage, and had only refused to do so; they were bound by articles to return with the ship from this Colony to England, or else forfeit their wages; it was upon a conviction by the Captain of his error that he agreed to give an advance of pay. Did the articles specify that they were to proceed to any intermediate port if required? What would the Captain then have done in the event of their refusal; by his having recourse to legal measures they would have been compelled to return to their duty, and in the event of refusal treated as deserters; the agreement therefore was void in toto. Verdict for the plaintiff - damages £77 10s. sterling, subject to a set-off of £10 paid by defendant to plaintiff.

 

Hourston v. Norris.

This was an action of trover (a case arising out of the last), brought to recover the value of a chest of carpenter's tools, and a quantity of wearing apparel. It appeared that the plaintiff on being discharged from the ship Hope, went alongside the vessel on the following day and demanded his property, which the Commander on board refused.

Verdict for the plaintiff - Damages £45 sterling.

 

Notes

[1 ] On 23 March 1825, Norris and the chief officer of the Hope, George Lamb, were tried on the criminal offence of conspiracy to cheat and defraud. They were found not guilty: Sydney Gazette, 31 March 1825.

Published by the Division of Law, Macquarie University