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

Nowlan v. Young [1828] NSWSupC 90

assault, false imprisonment, passenger on ship, ship, discipline on

Supreme Court of New South Wales

Forbes C.J., 6 October 1828

Source: Australian, 8 October 1828

SUPREME COURT.

CASE OF ASSAULT AND FALSE IMPRISONMENT.

Nowlan v. Young.

This was an action to recover damages for assault and false imprisonment, brought by the plaintiff, a passenger on board the brig Cleopatra, of which the defendant was master, on a voyage from Ireland to New South Wales.[1 ]

From the evidence adduced on the part of the plaintiff, it appeared, that, on the 17th of March last, the brig Cleopatra being on her voyage to this Colony with a number of cabin and steerage passengers on board, the defendant invited the steerage passengers to come on the quarter-deck, and join in a dance and other merriment to celebrate St. Patrick's day.  After the amusements of the evening had been concluded, and the steerage passengers, of whom the plaintiff was one, had retired to that part of the ship set aside for their accommodation, they began to enjoy themselves over a glass of punch, when about ten o'clock, the chief mate came to the hatchway, and directed that the lights should be put out.  The passengers, it appears, were burning candles, their own property; and conceiving that, so long as they were not wasting the captain's oil, they had no right to be consigned to darkness, they refused to "douse the glim" on the defendant's mandate, and desired the chief mate to tell him so.  After the lapse of a few minutes, the mate came down again with more peremptory orders from the defendant, to which obedience was again refused, in consequence of which the defendant himself came to the steerage with a drawn sword in his hand, accompanied by some of the crew, and there dragged the plaintiff, who, it was stated in evidence, was lying in his birth [sic], and not at all interfering, with two others of the passengers, on deck; and, after considerable resistance, lashed them to the side of the ship, where they were detained the whole of the night, with an armed guard over them.  On the following day, stocks were constructed, by order of the defendant, in which the plaintiff and the two other men were placed, and detained in that situation for several days and nights, when the plaintiff's companions were released on signing an admission that they had behaved improperly, and asking pardon of the defendant, but the plaintiff himself refusing to put his hand to the paper, was detained in confinement four or five days longer, and only then released on the representation of a Doctor on board.

The Counsel for the defendant, after testimony had been produced to prove these facts, addressed the Court at considerable length, and called several witnesses who were also passengers on board the vessel, as well as some of the crew, who deposed that, on the night in question, the defendant directed the lights in the steerage to be extinguished, with a view to the safety of the ship; and that, after receiving two refusals, conveyed in very opprobrious language, he repaired to the steerage himself, for the purpose of enforcing his orders.  On the defendant's descending a few steps down the ladder leading to the steerage, it was deposed by the second officer, who was present, the lights were immediately extinguished, and a rush made by some of the passengers to the hatchway, when the defendant was seized by the legs and only extricated by the exertions of some of the crew.  Three of the steerage passengers, of whom the plaintiff was one, then rushed upon deck, a scuffle ensued, the plaintiff seized the defendant by the neckcloth, and it was not till after a considerable struggle that the plaintiff and his abettors were overpowered.  It was also stated that, whilst the other two men were being bound, the plaintiff slipped away unperceived, got down into the steerage and into his birth [sic], and that then it was the defendant came down in pursuit of, and had him again brought upon deck, and placed in confinement.  It was also proved, so great was the disturbance amongst the steerage passengers, and so mutinous the conduct of the plaintiff himself, that the cabin passengers not only insisted on the defendant's putting him and the other two men in confinement, but actually kept guard over them themselves.

The Chief Justice charged the Assessors, whom after some minutes deliberation, found a verdict for the plaintiff, damages 25l. and costs.

Notes

[1 ] See also Sydney Gazette, 10 October 1828.

Published by the Division of Law, Macquarie University