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

Fuller v. Drake [1827] NSWSupC 74

assault, ship, discipline on, ship's crew

Supreme Court of New South Wales

Forbes C.J., 11 December 1827

Source: Sydney Gazette, 14 December 1827

This was an action brought to recover compensation in damages for an assault committed on the person of the plaintiff.  The defendant pleaded the general issue, and a justification.[1 ]  The damages were laid at £500.

Mr. ROWE stated the case.  The plaintiffs in the present action came to this Colony from England, a few months since, in capacity of steward on board the prison-ship Marquis of Hastings, of which the defendant was master and commander.  On the evening of the 27th of June, whilst the plaintiff was employed in the cabin, together with a soldier who acted as servant to the officer of the guard on board, the defendant charged him with being drunk.  The plaintiff denied he was so, and remonstrated with the defendant, who immediately seized him by the collar, dragged him out of the cabin, and, calling for the boatswain, directed him to give the plaintiff ``a d---d good starting."  The defendant looked on whilst the boatswain inflicted 30 lashes with the middle staysail halyards, a rope upwards of two inches in circumference, after which he called the mates, and directed them to drive the fellow forwards, an order which was obeyed with the utmost violence, and in the performance of which the plaintiff was knocked down, and severely hurt by falling against an anchor. -  Mr. ROWE stated, that he had no doubt it would be attempted., on the other side, to shew that the punishment was only a moderate punishment, and such as the defendant, in order to preserve a proper discipline on board his ship, was authorised to inflict; but he had no doubt, when the Court heard the evidence which he should bring forward to support the statement he had made, it would be of opinion that the punishment was not only not moderate, nor called for by the occasion, but most unjustifiable.

Witnesses were then called in support of the plaintiff's case.

Michael Goss, a private soldier in the 47th Regiment, stated, that he came out to this Colony in the ship Marquis of Hastings, of which the defendant was Commander; the plaintiff was steward on board, and witness acted as servant to Captain Lake the officer of the guard; remembers one evening during the passage, when the plaintiff was charged by the defendant with being drunk; the plaintiff and witness were then engaged in clearing the cabin table; the defendant told the plaintiff he was drunk; the plaintiff replied that he was not, upon which the defendant seized h[i]m by the collar, pulled him out of the cabin, and immediately called the boatswain and ordered him to give him a d---d good starting; witness was present, and saw the plaintiff receive 26 or more strokes, across the back and shoulders with a two-inch rope; the blows were laid on severely; the defendant then ordered one of the mates to drive the plaintiff forward; this occurred about 6 o'clock in the evening, and about 9 o'clock on the same night, witness heard the defendant tell the first mate to take the plaintiff down to the coal-hole, and keep him there on bread and water for three days, but this was not done; the plaintiff was not able to attend to his duty the next day, nor for three days after, and was then very weak and lame; witness saw the plaintiff's back the day after the beating; it was black from the effect of the blows.

Bernard Reilley, a private soldier, corporal Vernon, of the same regiment, and Edward Mackenzie, one of the ship's crew, deposed to the same facts.

Mr. NORTON addressed the Court for the defence, and called

Captain Lane, of the 47th Regiment, who stated that he came out from England in the ship Marquis of Hastings, of which the defendant was commander; the plaintiff was steward on board; he was in the habit of drinking during the voyage; remembers the day on which the defendant ordered the plaintiff to be punished; he was intoxicated just before, so much so that he was incapable of handing witness a cup of tea; the defendant told him he was drunk, and witness understood it was for that offence he was punished; witness saw the blows inflicted, but cannot speak to the size of the rope; he might have received 30 lashes; the plaintiff called out to the boatswain, as witness believes by way of bravado, to lay on, and he would find back as long as they would find rope, or words to that effect; witness cannot say that the plaintiff was otherwise insolent, but thinks that the punishment was necessary to uphold the discipline of the ship.

Cross-examined. -  The plaintiff has been appointed to the situation of tide waiter, since his arrival in the Colony, on account of recommendations for good conduct from some of the passengers who come out in the vessel; witness does not say that the plaintiff was insolent, but is decidedly of opinion that he was drunk; it was apparent to every person in the cabin.

The CHIEF JUSTICE summed up the evidence.  The present was one of those cases at which the Court would look very narrowly, on account of the peculiar circumstances under which they must necessarily take place.  A ship at sea resembled a small Government, at the head of which was the master, answerable, however, to the laws of his country for the proper execution of the powers with which he was invested.  This was necessary from the peculiar circumstances under which he was placed, and the considerable charge, as regarded the lives and property of those on board his ship, which devolved upon him.  The law delegated to him a power to enforce his orders by the infliction of such chastisement as parents or masters of families were permitted to exercise, because there were no means of obtaining relief by application to the Civil Law.  It was necessary, therefore, to preserve the authority of masters of vessels; but, it should also be remembered, that power was a thing with which few men could be entrusted, and situated as the plaintiff was, he certainly would be liable to undergo considerable suffering from the misguided feelings of a passionate master; for which reason the law would look with a jealous eye at the conduct of the master, to see that he need that authority with which it had invested him within due bounds.  If, however, any case could present itself in which it was necessary to maintain a system of regular good conduct on the part of the mariners, that of a prison ship was one.  Nothing could be more dangerous in such a situation than drunkenness on the part of the crew; and if so, generally speaking, it must be also considered wrong, pro tanto, as far as it went, in the individual.  From the evidence of Captain Lane, to whose testimony His Honor was inclined to pay most attention, not from the difference of rank in society between him and the other witnesses, but from the impartiality with which it had been given, he thought it might be fairly inferred that the plaintiff was intoxicated.  Drunkenness at sea was an offence which should be visited with some degree of punishment from its dangerous consequences, but still His Honor was of opinion, that the Captain had gone further, a great deal further, than the occasion required.  The better way would have been to have confined the plaintiff till he was sober, and then to have ad[o]pted such a degree of punishment as would have prevented a recurrence of the offence; at the same time, said His Honor, I cannot help taking this opportunity of remarking, that this ``starting," as it is called, is rather an illegal mode of punishment.

The Jury found a verdict for the plaintiff, and assessed the damages at £15.


[1] This trial was also reported in the Monitor, 17 December 1827.  The Monitor stated that in his summing up, Forbes C.J. said that "a ship at sea was a little government and the master stood in point of authority as a parent, a guardian, and a master of a large family."

See also Taylor v. Christie, 1831.

Published by the Division of Law, Macquarie University