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

Sims and Foster v. The Ship Cumberland, Robert Carns, Master [1827] NSWSupC 46

The Cumberland

admiralty - master and servant - ship's crew

Court of Vice-Admiralty

Forbes C.J., 25 July 1827

Source: Sydney Gazette, 27 July 1827

 

COURT OF VICE-ADMIRALTY.

JULY 25, 1827.

Before the Honorable FRANCIS FORBES.

Judge of the Vice-Admiralty of New South Wales.

Sims and Foster v. the ship Cumberland, Robert Carns, Master.

This was a suit preferred by the plaintiffs, who were late seamen on board the ship Cumberland, against the defendant, who is Master of that ship, for wages.

The plaintiffs, on their arrival in this Colony from England, entered into His Majesty's service, on board of a man-of-war, in consequence of which the defendant refused to pay them wages for the time that had been in his employ, alleging a breach of their contract against them, they having stipulated for the voyage outward and home again, and not to demand their wages, or any part thereof, until the ship's return to the port of London.  After hearing evidence, His HONOR pronounced the following judgment on the case:

By the COURT - By the maritime law, it is a principle that the payment of the wages of the seamen shall depend upon the earning of freight by the ship.  According to this general principle, the present applicants would be entitled to their wages up to the discharge of the outward cargo in this port.  The question then is raised whether this general principle of maritime law has been so far altered by the provisions of our municipal code, as to affect its application to the case before me.  The policy of our Legislature has been to ensure the return of British seamen to their Country, and with that view it has restrained the payment of wages in foreign ports, and pointed out the form in which every contract of hiring between the Master and the seaman shall be drawn up.  By this contract the seamen stipulate to perform a voyage outward and home again, and not to demand their wages, or any part thereof, until the ship's return to port.  In the ordinary course of things, this stipulation would be conclusive against the present demand; for, by the express terms of their own contract, the complainants have precluded themselves from demanding their wages, until the return of the ship to the port of London.  But an important circumstance has taken place in this port - the complainants having entered in His Majesty's service; and that, it is contended, puts an end to the contract between Master and the complainants, and protects them, by the provisions of the statute, from the usual consequences of forfeiture for quitting the ship.  This is not denied, and the only question then is, whether they are entitled to recover their wages before the ship's arrival at her port of discharge, and up to what period.  I at first entertained doubts whether, by the terms of the contract, any wages could be recovered until the arrival of the ship in London.  Had the applicants remained with the ship, they could not have demanded their wages before the completion of the voyage, and their quitting the ship should not place them in a better condition than they would have been in, had they remained and fulfilled their contract.   But I incline to think, upon mature consideration, that the form of the contract directed by the statute must be taken altogether, and that such part as restrains the demand of wages to the ship's return, must be construed, in conjunction with the tenor of the whole articles which go to enforce the continuance of seamen in the service of the ship, until her ultimate arrival at the port of discharge, and suppose their actual return with such ship, I do not think it was intended to apply to cases of impressment or entry into His Majesty's service; by the circumstance of such entry or impressment, the contract of such persons with the Master is completely at an end - they become disunited from the ship - they have no longer any interest in the voyage - and as, under every reasonable probability, they would not be present at the arrival of the ship at her ultimate port, they would lose the best security for the payment of their wages, the body of the ship itself.

I regret that I cannot find any case decided which embraces the point at issue.  There is an anonymous case referred to in 2 Campbell's Reports, N. P. 320, something like the present; but the wages due for the first part of the voyage were paid into Court, and the point was not touched.  I must therefore meet it upon general principles.  I am of opinion, that, taking the whole of the provisions of the statute and the articles together, they do not apply to the case of seamen entering into His Majesty's service; that, by the last part of such entry, the contract was at an end; and that such seamen became entitled to a proportion of their wages, in the nature of a quantum meruit, for services performed out of such freight as may have been earned.  In this case the outward freight to this country has been paid.  I therefore order, that the wages of the present complainants, calculating such wages to the time of the ship's delivery of the outward cargo, be paid to them.

Published by the Division of Law, Macquarie University