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

Merrett v Kenn, MacCleod and Butterworth [1826] NSWSupC 22

assault - false imprisonment - passenger on ship - ship, discipline on - damages, assessment - damages, exemplary - damages for insult

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 10 April 1826

Source: Australian, 12 April 1826


This was an action of assault and false imprisonment.[2 ]

The Plaintiff was a steerage passenger on board the William Shand, on her voyage from England; the Defendant, Kenn, was commander of the ship, and Mac'Cleod and Butterworth the first and second officers.  Witnesses on behalf of the Plaintiff, stated, that the captain and plaintiff, after the departure of the ship from Hobart Town, had a dispute, which ended in the former ordering his two officers to put handcuffs on the latter, and keeping him so confined upwards of two hours.  They also stated, that a great deal of wrangling had taken place between the same parties during the voyage, and that very abusive names were used on those occasions towards each other.[3 ]  The witnesses said that the plaintiff's wrists were much bruised with the handcuffs, and added, that they considered the conduct of the captain during the whole voyage, harsh and insolent, and that the officers, particularly Butterworth, acted at all times most outrageously towards him.  The putting handcuffs on the plaintiff was admitted on behalf of the defendant, but justified by the provocation given by plaintiff, and on account of the tendency which such conduct had to diminish the authority of the Captain amongst his crew.  Witnesses for the defendants stated that the general conduct of plaintiff towards defendants was insolent, and that on one occasion he had told the captain, he only left England to escape the Halter - the Captain, it was also stated, had called the Plaintiff a Bankrupt, &c.  It was further proved, that the Plaintiff, when the handcuffs were put on, said, "that was all he wanted, and he would make the Captain pay for it."  The Learned Judge in summing up, observed, that it was only in extreme cases that a Captain was justified in putting any one on board his ship in irons.  He ought to protect his Passengers, and was punishable for any improper exercise of authority or improper treatment of them, as much as if the parties were ashore.  He thought this was a case in which heavy damages ought to be given, as well for the actual violence, as for wounded feelings.[4 ]

The Assessors and the Judge having retired for half an hour, returned, and gave a Verdict for Plaintiff  Two Hundred Pounds damages.  The Learned Judge added, that if the Assessors could have apportioned the damages, they would have awarded the greater part of the sum against the two officers, whose behaviour they considered most unmanly, particularly that of Butterworth.[5 ]



[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. 

[2 ] This case was also reported in the Sydney Gazette, on 12 April 1826; it said that the damages were laid at £300, and that the defendants put in a plea of justification.  W.C. Wentworth acted for the plaintiff.

[3 ] The Sydney Gazette, 12 April 1826, said that the language included calling the plaintiff "a d--d old b-g-r."  One witness recalled that Kenn said that the plaintiff "used to play at hide and seek on board the ship, while she was lying in the London docks, to escape his creditors" and called him a "d--d infernal old vagabond."

See also R. v. Leitch, June 1826, on ship's discipline.  See also Sydney Herald, 14 May 1835, "Law Respecting Merchant Seamen".

[4 ] The Sydney Gazette, 12 April 1826, gave a longer version of this: "His Honor proceeded to sum up the evidence.  He wished for the sake of the Public, and also to set right some erroneous impressions which were entertained with regard to the duties of Captains of ships, to state what appeared to him to be the law of the case before the Court.  A Captain was bound to protect his officers, his crew, and his passengers; and to adopt such measures for maintaining that subordination which the former owed to himself as the nature of the case might require, and if he could no [sic] otherwise prevent a spirit of insubordination in a passenger, he was authorized to use the means which the pres[e]nt defendant had done, but this only in a case of extreme necessity.  On the other hand, it was the duty of a Captain to consider every passenger as under his protection, and to prevent all persons, acting by his authority, from exercising any degree of violence against them, which the law of England no more allowed on board a ship on the high seas, than in Great Britain itself, and no person whatsoever was allowed to take the law into his own hands, by the imprisonment of a British subject, except in cases of extreme necessity.  In the case before the Court, as in all others, it was the duty of the Jury to attend only to the evidence, divesting their minds of all those unavoidable feelings of indignation which would naturally arise at any infraction of personal liberty.  It was in evidence that there was nothing on board like insubordination, nor nothing appeared to shew that the harsh and unnecessary degree of violence which had been resorted to was warranted by the occasion.  The question was, not what the plaintiff might have done, but what he did, and certainly nothing appeared in evidence to shew that any expressions or conduct on the part of the plaintiff had such a tendency as would warrant the measures resorted to by the defendant on an aged man.  One witness had said that the authority of the Captain was lessening, but lessening his authority did not amount to the plea of justification put in.  The question was, whether there existed such a spirit of mutiny as would justify imprisonment.  With regard to the expressions made use of by the plaintiff, it was only natural, that a man old as he was, should manifest some indignation at being manacled, and express his determination to be revenged.  If, however, it should appear to the Jury, that there was a reasonable fear of insubordination, arising from the conduct of the plaintiff, the plea put in would be sufficient; if they thought otherwise, that the evidence did not amount to a justification, they were then to consider the amount of damages, and in such cases, where parties could afford it, it was their duty to give heavy damages, as certainly a man should receive something not only for his injured feelings by the insult and degradation of false imprisonment, but also it was their duty to shew to the world, that the liberty of a British subject should always be protected."

[5 ]Merrett also sued Kenn separately for assault: he was awarded 40s. damages because Captain Kenn twice "held up his fist in the face of the plaintiff": Australian, 12 April 1826.

Published by the Division of Law, Macquarie University