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

Campbell v Jeffrey [1826] NSWSupC 27

assumpsit - contract, breach of - ship passenger - ship passenger's diet

Supreme Court of New South Wales

Stephen A.C.J.,  

Source: Australian, 3 May 1826

 

Mr. Wentworth opened the pleadings.  This was an action of assumpsit, brought by Mr. Robert Campbell, jun. a merchant of this town, against the defendant, who is the Commander of the ship Toward Castle,[2 ]

Dr. Wardell stated the case at some length.

Mr. Thomas Raine examined - Is the agent of defendant, in this action; remembers the Toward Castle's arrival at this port a few weeks since; went almost immediately aboard the vessel; recollects meeting with plaintiff and defendant there; they were conversing together relative to the adjustment of defendant's claims, for passage money, &c.; plaintiff turned round to witness, and desired him to settle with the Captain; plaintiff spoke at the time, in general terms; heard a sum mentioned, of £153 12s 0d., sterling, which was considered equivalent to defendant's claim; to this arrangement witness acceded; plaintiff happened to have securities lodged, for a large amount, in witness' hands, and it was out of these securities, the money was intended to be paid.

Cross-examined ---- Plaintiff had not been furnished with any account from the Captain previous to his desiring witness to settle with him; defendant did not make a claim until the present action was brought; plaintiff said he would satisfy the claim; and accordingly asked witness to return those securities he held, which was complied with; this transaction occurred sometime back; recollects a proposal being made to defendant, to receive part of the passage money; this he refused to do; he expressed his determination to receive only the full amount, which he declared to be £200.  On the previous meeting a sum of £153, odd, had been mentioned to plaintiff, as the amount of the passage money, who then declared that he thought Captain Jeffery had brought out plaintiff's family too reasonably.  It afterwards occurred in conversation, that £150 was the sum stipulated at London, for the passage; but that the overcharge, amounting on the whole to £200, was for "living" at the Cape.  From the instructions which witness had of plaintiff, should have undertaken to pay Captain Jeffrey's claim, to the full amount, if plaintiff had been absent from town.

Re-examined ---- Was told to pay Captain Jeffrey's demand; had securities in bills, for the amount, at that time; afterwards received cash from plaintiff, for £153 12s. sterling, which was paid into witness's hands.  The causes of disagreement were simply an unsettled demand, for living at the Cape.

Miss Harriet Eliza Spencer----accompanied Mrs. Campbell from England to this Colony in the Toward Castle.  The first time of seeing defendant, was at London, about a fortnight before that vessel sailed from thence; on that occasion some conversation took place; heard Captain Jeffrey address Mrs. C. and say, that as he found she (Mrs. C) was so very fond of puddings, he had sent a large quantity of Normandy pippins on board, which should be used for her convenience; he then talked of adding to Mrs. C's. comforts on her voyage, by having a goat on board also, with a view to furnish milk; the latter expressed her disapprobation of it, alleging as a reason, she would not wish to have any indulgence which another passenger might be deprived of.  Defendant, on hearing this, immediately bought a cow, of which he informed Mrs. C. - Mrs. C. and the Captain seemed on tolerably good terms, until a cup of oil was one morning sent to her for breakfast.  This occurred about 3 weeks' sail from Madeira.  One morning the steward brought two cups of tea into one of those cabins apportioned for Mrs. C. and her suite witness was present.  Witness was about to take one cup from the tea tray, supposing that the other was going into Mrs. C, as usual.  Upon that the steward said, "that is not your cup Miss Spencer, it is Mrs. Campbell's;" at this moment the female servant observed the tea had an unusual color; witness's attention was in consequence attract

she told the steward that the cup had been in a dirty state, and that some mistake occurred.  On further examination it was found to contain a portion of oil.  Mrs. C. from an adjoining cabin, overheard the dispute; could obtain no other explanation from the steward than that he had been ordered by the Captain to bring it, and that it was brought direct from the breakfast table.  Mrs. C. desired the man to carry a message to the Captain on the subject, which was refused.  Mrs. C. momentarily considered it an insult offered to her.  Mrs. C. still insisted on the steward taking a message to his Captain, which he obstinately persisted in refusing to do, and assigned as a reason that the latter was at breakfast in the cuddy.  The doctor of the ship was in the habit of dispensing the tea at breakfast. That morning the steward made breakfast; the Doctor was at a loss to think why his post had been taken from him on that particular morning - Mrs. C. sent her congratulations to defendant, on the nice breakfast he had favoured her with; defendant told the steward in the course of that day, if Mrs. C. sent much dirty cups from her cabin again, to let her have them back next morning with tea in.  Pork or mutton, were mostly standing dishes, until arriving at the Cape - when the Captain said he should charge all the passengers 10s. 6d. per day, for diet, whilst in harbour.  Mrs. C. reminded him that he had contracted for a specific sum to provide herself and domestics with provisions until the date of their arrival at Sydney.  The latter replied, that he did not calculate on having to put into the Cape.  Neither Mrs. C. nor witness could partake of such joints as pork, served up at times with the bristles standing on end.  This dish was occasionally supplied by another; soup extracted from a sheep's head, which had to satisfy the appetite of full 15 persons.  Appeared on table twice a sort of mock turtle soup, not made from a common calf's head; but rarely wanting a joint, pork was at times substituted.  Sheep's fry, and black puddings, with pork chops of a most inviting length (inviting perhaps to the rough stomach of a seaman) formed an elegant demele at other times; - ('twould be pronounced a very tempting set down by the admirers of a well compounded pot pouri) the knives and forks seemed to undergo a transmutation, for deserte appeared at dinner, and carvers or some such at the breakfast or tea-table.  Mrs. C. was in a very bad state of health throughout the passage, occasioned from sea sickness.  She could not eat pork at any period.  On arriving at the Cape she asked a second time to be allowed pudding.  The Captain said yes, if the Doctor will give a certificate that the lady cannot eat meat.  Mrs. C. reminded the Captain, through the medium of a boy named Crew, of the promise which he made on her taking the passage.  He requested Mrs. C. not to send any future messages, but in writing: the lady never made a third solicitation.  Witness remembered being on shore at the Cape, with Mrs. C. one day.  Recollected passing by an hotel where defendant was standing at the window, and looking towards the street.  Witness and Mrs. C. were proceeding together in the direction of the water side, in order to regain the boat, which usually returned about six o'clock in the evening.  After having just passed the hotel, a boy ran out and went to Mr. Simmons, who was in charge of the boat then waiting at the water side, and communicated the Captain's instructions to him, not to leave there with the boat until eight o'clock.  Mr. S. procured another boat at his own instance, in which witness and Mrs. C. reached the ship.  Almost immediately after leaving the Cape the dead lights of Mrs. C's. cabin were put up,  This was necessary then, on account of bad weather.  Some time after the raging elements became more tranquillised, and then came on calms.  Mrs. C. upon this asked defendant to have the dead lights removed; this was refused; the cabin was in consequence kept in a continued state of darkness.  Mrs. C. occupied one of the after cabins and Captain Smith and family, more passengers, the other cabin.  The latter had his lights repeatedly away, whilst those in Mrs. C's. cabin remained fixed as fate.  The former enjoyed the sight of day light, with little interruption, until the vessel reached Hobart Town.  Mrs. C. applied to the Chief Officer to have this indulgence granted, who spoke to the defendant on the subject, but he refused to accede.  Captain Smith's were out at this time.  Is certain the dead lights were in for several weeks, and for eight days, whilst the ship was lying in sight of Van Diemen's Land, and was unable to get in, on account of contrary though moderate, breezes, and calms.  Believes the Captain gave encouragement to his servants to insult Mrs. C.  Heard the Captain once refuse a servant to toast a piece of bread for Mrs. C.  At this time that lady had taken nothing beyond unadulterated cold water for the space of three days before.

Cross-examined   Is governess in the family of Mrs. C. and is still living with that lady. Believes the ship required considerable repairs in the course of her voyage, which occasioned her to put in at the Cape.  Knows that a large proportion of the cargo was unshipped, and reshipped, whilst lying there.  It was generally understood by all on board, that the Captain did not allow the ship's boats to go expressly on shore at the call of passengers.  To speak within compass, the length of the pork chops, which had been previously alluded to, would measure from witness's wrist to the elbow.  Did not consider merriment was excited when the mistake occurred about the cup, &c.  Mrs. C. did not take it in a joke.  She was too indignant at it to laugh.  Does not believe that Mrs. C's. female servant played the trick.

Re-examined -  the steward said this cup (meaning the oily cup) is not for you Miss, it is for Mrs. C.  The captain desired me to bring it to you.  Mrs. C. sent for the steward, and said it was his own insolence.  He then stood still, rolled his eyes from one side to the other, but said nothing; thought the captain would have reprimanded the steward for it, had he not been a party to it.

G.H. Burten - Is an apprentice on board the Toward Castle.   Remembers taking a message once during the passage from Mrs. Campbell to captain Jeffery, begging of the captain to put away the dead lights from her cabin.  At this time the weather was rough.  Afterwards took a second message to the chief officer, who said he could not do such a thing, without the captain's orders.

Charles Creek, another apprentice - Mrs. C's servant maid had by accident dropped some oil into a cup, which she neglected to notice, by which it got mixed with other cups, and it was shewn to the captain, who desired it to be washed.  This was done accordingly.  Believes the same cup was used at breakfast the next morning.

Cross examined - There were Normandy pippins nearly every day at dinner.  Mrs. C. had more diet sent her, and attention paid to her, than any other passenger.

Mr. Simmonds -  Is third officer of the Toward Castle.  There were a great many complaints made by passengers during the voyage of one thing and the other.  Knows Mrs. C. asked on one occasion for puddings.  Believes she did not have any that time.  Whilst at the Cape, those passengers who wished to go on shore had to wait an opportunity of conveyance by the ship's cargo boat.  Mrs. C. had to do the same.  Knows that Mrs. C. and Miss Spencer were desirous of coming off in the ship's boat from the shore to the vessel, when an order from the captain at that instant arrived, not for witness to move the boat 'till 8 o'clock; remembers once standing at the hatchway; was about getting up from the hold a chest of wearing apparel belonging to Mrs. C., at that lady's desire ; the Captain came up, aud [sic] asked witness what he was doing, when on being told, he was requested to go about something else.

Daniel Haggarty - Is chief officer of the ship; joined the vessel at the Cape on her passage out here; from the Cape there were occasional calms, accompanied with a heavy swell; at such times the vessel was as likely to ship a sea, as at any other time; it was a quick passage; remembers once assisting Mrs. C. off the poop; Captain Jeffrey said "Mrs. Campbell deserves no attention from any person belonging to me," remembers on one occasion Mrs. C. was refused hot salt water when the fire had been put out.

Cross-examined  -  Mrs. C. never sent to table for any thing which was refused to her; always thought there was quite a sufficiency for any moderate person to eat.

Mr. Cowper Mills was one of the passengers -  there was a general dissatisfaction among them before they arrived at Madeira.  Mrs. C. frequently complained of ill treatment.

Dr. Inglis came out in the Toward Castle -  Heard mention made one day during the passage, about oil being sent Mrs. C. to breakfast - did not make tea on that morning.  The tea was made before witness came up out of his cabin that morning, although he rose at the usual hour.

Cross-examined - Considers there was a sufficiency of diet; Mrs. C. made no complaint to witness in this respect; Captain Jeffrey repeatedly told witness, whatever Mrs. C. wanted, she should have.

William Thomas - is a steward on board, and a native of Jamaica.  Is a protestant, and it [sic] his religion to make the point of sticking to his place the prime thing.  Did not take a cup of oil to Mrs. C.  there was oil in the cup before it was washed; witness took the cup of tea to Mrs. C. and made his congè, of which his vivid caracature drew forth peals of laughter.  Witness had before wiped it with a dry cloth; the cloth could scarely [sic] be called a towel; but despite of dry rubbing, the oily particles clung fast to the cup, and afterwards floated on top.  Could not tell whether it was sperm oil, nor what oil it was; but, thought, that "they best can tell who have `tasted' it most," [sic]  Witness did not nose it, but he smelt it, and thought it was surely lamp oil; still he was certain the oil and the cup came from Mrs. C's cabin, who told witness that she would not put up with it any longer.  The Captain told him to let Mrs. C. have that cup, and he did so.  Is positive the Dr. dispensed the tea on that morning.  Witness said, "here is a cup for you Miss Spencer, and here's a cup for you Mrs. Campbell;" she Mrs. C. sent her compliments, to the Captain; and said she was not in the habit of drinking oil.  The Captain said in answer, "Oh, very well." - Pudding was made at different times expressly for Mrs. C. and no other person - there was rice, and rice puddings, and sometimes bread and butter puddings, and plumb [sic] puddings.  Mrs. C. had puddings several times, pudding made on purpose for her; she indeed had puddings when others of the passengers had not.  Witness used to make twists for Mrs. C. and she said she never ate any thing so nice before; they had no twists in the cuddy.  Witness always gave Mrs. C. what he considered necessary.  The reason why witness rook the oil cup, was because Hague was always in the habit of playing so many tricks.  Mrs. C. had always plenty of toast; witness did every thing in his power to oblige Mrs. C.

George Landers was a passenger, - he complained of ill-treatment from the captain to the passengers, particularly Mrs. Campbell, who was, in his opinion, generally served with dinner when it was quite cold - knows that Mrs. C. was not allowed toast whilst at the Cape; witness's child was even refused permission to toast a piece of bread at the fire, when it was told that it was for Mrs. Campbell.

Susanna Sanders corroborated her husband's testimony.

This was the case for the plaintiff.

Witnesses were not called on behalf of the defendant.

The Judge in summing up, stated that the assessors had to weigh conflicting testimony, and would fashion their verdict accordingly to the view they took of the whole case.  The law was perfectly clear.  The master of a vessel, whether there be a special contract to that effect or not, is bound to provide the passengers he undertakes to convey in his ship, with good and wholesome food, and all necessaries; if he do not, he is liable i[n] an action.[3 ]  If they thought the case established against the defendant, by the testimony of one class of witnesses, they would find for the plaintiff; if not, their verdict would be in favor of the defendant.  The assessors retired for a few minutes, and returned with a verdict for the defendant.

 

Notes

[1 ] Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.  This case was also reported by the Sydney Gazette, 3 May 1826.

[2 ] For another case arising out of this voyage, see Spencer v. Jeffery, May 1826.  See also Bate v. Corbyn, reported in the Sydney Gazette, 1 March 1826.

[3 ] The Sydney Gazette, 3 May 1826, summarised the words of Stephen A.C.J. on this point as follows: "Where a captain neglected to provide proper treatment and accommodation for his passengers, he was in law guilty of a breach of an implied contract, even though there should not have been any special agreement."

Published by the Division of Law, Macquarie University