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

Wentworth v Jones [1825] NSWSupC 56

breach of contract - passenger on ship

Supreme Court of New South Wales

Stephen J., 21 November 1825

Source: Australian, 24 November 1825



SUPREME COURT.  (Monday, Nov. 21.)

Wentworth v. Jones.


This was an action to recover damages for a breach of contract.[1 ]

The defendant is owner of the ship Alfred, which left England for these colonies in the early part of February 1824.  The plaintiff was a passenger on board the Alfred.

It appeared from the statement of counsel (Dr. Wardell), for the plaintiff, and also from the evidence of Mr. Mackaness (the Sheriff), and Dr. Wardell, and other witnesses who were also passengers, that the defendant had engaged to convey the passengers from England to Sydney, and treat them as gentlemen  to keep a good table, and give plenty of fresh provisions the whole of the way.  Instead of doing this, however, the ship was not supplied with necessaries; and the passengers had nothing but salt meat and doughboys to dinner two or three times a week for ten weeks, and every day for about a fortnight before the ship arrived at Hobart Town.  The Sheriff fully stated that the treatment generally was of the worst description.  He had been induced to take his passage in the Alfred, because the owner represented the passengers to be of great respectability; and, that the best of treatment on board would be experienced by them.  He, therefore, took his passage, and paid what charge the owner made; knowing defendant to be a wealthy man, he took it for granted the ship would be well supplied with all necessaries for the prosecution of a long voyage.  There was an abundance of provisions at Deal, but generally of an indifferent description, and always very filthy; he never saw a cleanly wholesome dinner during the whole passage.  On the arrival of the vessel at Madeira, each cabin passenger was asked to subscribe a sum of £5 towards purchasing a fresh supply of provisions there.  This was not acceeded to, but most of the passengers, who had previously purchased a great quantity of beef and bread at Portsmouth, laid out a great deal of money at Madeira, in the purchase of whatever the place afforded in the nature of provisions.  They bought meat, bread, eggs, onions, bananas, and a great variety of other necessaries.  They also wished to buy for themselves fifty dozen of porter (as there were only 20 dozen originally put on board in London, for the use of about sixteen persons entitled to cabin fare), but the Captain would not wait till a permit was obtained from the Custom-house, as he said he durst not break through the orders of his owner, who had instructed him not to wait above two or three hours at Madeira to take in a passenger.

It was also proved that the passengers bought provisions at St. Jago, where the Captain also purchased a considerable quantity of such articles as the place afforded; viz. poultry and pigs.  The passengers also bought goats to supply them with milk as none had been put on board, except a small quantity, which was discovered on the voyage, and which lasted about ten days.

The Sheriff said he would not undergo such infamous treatment again for one thousand pounds.  Plaintiff, at the request of the Captain, undertook to act as caterer on board.  Plaintiff had very fortunately laid in a quantity of candles for his use during the passage, and many of the passengers were indebted to him for a light.  A quantity of sperm oil belonging to the plaintiff was consumed in the public cabin.  The ship was very inadequately supplied with oil.  The dining cabin and the private cabins were in a very wet and comfortless condition; heard the Captain express his regret that the owner had not allowed him to lay in a sufficient store in the vessel, which he had considered necessary for the voyage.  The plaintiff in acting as caterer was often abused on account of the small quantity of provisions which he appointed to be cooked for table.  His reply on those occasions usually was, that he was obliged to do so, as the passengers might otherwise want a dinner altogether before the completion of their voyage.  The salt beef, of which article the table was abundantly supplied, was of a very bad quality.  The passengers, one and all, suffered most severely during the voyage; it would be impossible to describe the general bad quality of the provisions, and the uncomfortableness of the cabins; they literally lived worse than prisoners.  The Sheriff paid, he said, the whole sum ever demanded by defendant for his passage; it was £80, that was the sum asked; no higher terms were mentioned, and he never tried to bargain for less.  Had plaintiff not been so careful as caterer, the passengers might have been literally starved ere they had completed the voyage.  He said the pilot at Portsmouth heard him give it as his opinion that the ship was not seaworthy, and that she would not arrive in safety at her destination.

Many other circumstances were also stated in evidence to shew the wretched state of the passengers.  Bad wine, filthy table cloths, short allowance, dirty cooking, wet cabins, some of them ancle deep in water, &c. &c.

On the part of the defendant it was argued that the contract with the plaintiff was a joint contract with him and others  this however failed.  The carpenter of the ship was also called to depose to the condition of the ship, as to her sea-worthiness.  He stated that she had been caulked before she left Deptford, but he admitted that this was done in a hazy day, as the ship was sent off in a hurry, and that consequently the caulking could not be expected to be so good as if done at a proper time.  The man who acted as a substitute for steward from Madeira, the steward having quitted the ship at that place, was also called in the defence.  He swore that when he first joined the ship there used to be fourteen or fifteen dishes on table, and that every body lived as if they were in a Nobleman's family; that there was plenty of preserved meat, plenty of milk, and plenty of every thing.  He admitted, however, in his cross-examination that he could swear to there being eight or nine dishes on the table  that four of those dishes were vegetables, and one rice  that two of the vegetables were pumpkins, and that the pumpkins and rice might have been bought by the passengers  that the preserved meat on board might belong to one of the passengers, and the preserved milk also might belong to one or other of them  and that the passengers lived wholly on coarse biscuit and salt meat for a long time.

The ship's husband here was called to prove that the ship did not require a great deal of repairs when she arrived, and that she was a good sound ship.

The Counsel for the plaintiff having replied, and Judge Stephen summed up,[2 ] the Assessors found a verdict for the plaintiff.

Damages, £80.



[1 ] Also reported by Sydney Gazette, 24 November 1825, showing that Mr. Norton acted for the defendant.  See also Australian, 4 November 1825, for commentary.

Dr Wardell sued Jones on behalf of himself and his mother on the same facts.  The case was heard on 22 November 1825, but as it began, the defendant offered a compromise of £200 plus costs, which Wardell accepted; Australian, 24 November 1825; Sydney Gazette, 24 November 1825.

[2 ] Stephen J. found that there was no evidence that this was a joint contract: Sydney Gazette, 24 November 1825.

Published by the Division of Law, Macquarie University