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

Wilson v. Johnstone [1829] NSWSupC 55

passenger on ship - admiralty, deviation - damages, assessment of - contracts, oral


Supreme Court of New South Wales

Dowling J., 17 September 1829[1 ]

Source: Sydney Gazette, 19 September 1829[2 ]

This was an action of trespass on the case to recover compensation in damages, for a breach of contract by the defendant, who was master of the ship Swiftsure, in in [sic] which the plaintiff came out a passenger to this Colony from England.

The declaration contained several counts.  The first count set forth that the plaintiff had received the appointment of Director of Public Works in this Colony, with a salary of £700 a year, at the rate of one half only of which yearly salary he was to receive from the period of his embarkation in England, till his arrival here; and that the defendant, in consideration of  a certain sum of money, payable on two promissory notes undertook to convey him and his family to this Colony, and to provide a ship sea-worthy, and in every respect capable of performing the voyage.  The declaration then went on to allege a breach of that contract, whereby the plaintiff was deprived of great gains and rewards in his said office of Director of Public Works, and was also put to considerable expense at the ports of Lisbon and Hobart town, through the negligence of the defendant.  There was also a count claiming a remuneration for the services of plaintiff's nephew and servant as a medical attendant on board during the voyage, together with the usual money counts.

A variety of evidence was adduced to prove, that not only immediately on leaving the London Docks, but while she lay there, the ship was in a leaky condition and unfit for sea.  On the 9th of September, 1827, the vessel sailed from Gravesend to Portsmouth, where she arrived on the 10th, during which passage the pumps were kept constantly at work, and the ship generally making sixteen inches of water in the hour.  At Portsmouth it was found necessary to have her surveyed by Lloyd's agent, when a new plank was inserted in her side, and after taking in water she set sail for the Downs.  On arriving in the Downs, it was proved that the crew represented to the defendant that the ship was not sea-worthy, and recommended that he would put back to refit, when he replied, that "he would see them d--d first, that he had all his property on board, and thought as much about his life as any of them."  The vessel accordingly proceeded on her voyage, but after being nearly six weeks at sea, such was her leaky condition, that a consultation was held, and it was determined to run for the port of Lisbon, where she arrived on the 5th of November.  At Lisbon, the ship was hove-down and underwent a thorough repair, which detained her three months, during which time the defendant refused to keep a table on board, and the plaintiff was obliged to live on shore with his family at an expense of £150, exclusive of the loss of salary appertaining to his office, occasioned by the delay in prosecuting his voyage.  In support of that part of the declaration which sought to recover compensation for the services of the plaintiff's nephew, it was proved that though the owners of the vessel promised to carry an experienced surgeon, they had not done so, and that on several occasions during the voyage the nephew of the plaintiff had attended the passengers and crew in cases of illness.  There was also evidence to prove that plaintiff lived on shore at his own expense for a month at Hobart Town, but it was not shewn that he had been obliged to leave the ship at that time by the defendant.

Counsel for the defendant, after taking some legal objections as to the liability of his client, which were overruled by the Court, addressed the Jury at considerable length, contending that the state of the vessel originated in circumstances over which the defendant had no control, nor could have foreseen.  With respect to the plaintiff's claim for loss of salary, owing to the detention of the ship at Lisbon, he put it to the Jury to say what data there was on which they could come to the conclusion that she would have arrived at the end of her voyage one moment sooner if no such detention had taken place; and as to the expense incurred by plaintiff at Lisbon, he would prove that he perfectly acquiesced in the defendant's proposal to live on shore, and expressed no anxiety whatever to proceed on the voyage.  As to the claim for compensation for the services of plaintiff's nephew, as surgeon on board, he contended there was no evidence whatever to shew that there was any contract between him and the defendant.

Some evidence was then submitted to the Court in support of the statement made by defendant's Counsel, and after reply by the Counsel on the other side.

Mr. Justice Dowling proceeded to sum up the evidence, leaving it to the assessors to say, as the main point of their consideration, whether, at the commencement of the voyage, the ship was sea-worthy.  His Honor perfectly agreed in the very pertinent observations made by the defendant's counsel, that there were no data by which they could conclude that the vessel would have arrived sooner at the end of the voyage, if the detention at Lisbon had not taken place.  If, therefore, they were satisfied as to the main point for the enquiry namely, that at the commencement of the voyage the ship was not sea-worthy, they would then consider what reasonable amount of damages they would award the plaintiff for the expenses incurred by him on account of defendant's breach of contract in that instance.  With respect to the claim for compensation for the services of the plaintiff's nephew, His Honor did not see any evidence in support of that count.

The Assessors found a verdict for the plaintiff, damages £150, being the amount of his expenses at Lisbon only.

Counsel for the plaintiff, Dr. Wardell; for the defendant, Mr. Norton.



[1 ] The minutes of this case are in Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 225; and in Dowling, Proceedings of the Supreme Court, Vol. 2/3208, p. 225((1829) NSW Sel Cas (Dowling) 909).  In the Select Cases, Dowling J. recorded the principle as follows: "Where a vessel bound from London to Sydney was obliged from original unseaworthiness to put into Lisbon to refit  Held that the Captain was liable for the expenses of a passenger living ashore during the vessels detention to refit; but not liable for loss of salary the passenger being appointed to an office under Government with half salary from the time of Embarkation."

See also Lysen v. Johnstone, 1830.  Also, in Lynn v. Johnstone, Australian, 4 March 1831, Forbes C.J. was quoted as saying that "a master of a vessel was not liable for any contract of the owners, unless he became a party to such contract".

[2 ] See also Australian, 25 September 1829.

The Sydney Gazette, 22 September 1829, noted that Dowling J. observed that actions of this kind would occur less often "if persons taking their passage on board a ship, particularly when proceeding on a long voyage, would only use the ordinary precaution of having the terms of their agreement committed to writing."

Published by the Division of Law, Macquarie University