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

Geary v Vivian (1830) 1 Legge 1; [1830] NSWSupC 68

Admiralty, penal bonds, penalties, relief against, entire contracts rule, ship's crew, desertion, master and servant, law reporting, Legge's Reports

Vice Admiralty Court

Forbes, J., 27 August, 18 September 1830

Source: Sydney Gazette, 18 September 1830[1 ]

Vice Admiralty Court.

FRIDAY, AUG. 27.

(Before the Hon. Francis Forbes, Judge.)

Geary Appellant,

against

Vivian Respondent.

This was an appeal from the Court of Sessions, under the statute 59, Geo. III. cap. 51, under the following circumstances, as stated by the Counsel for the Appellant:- Vivian, a mariner on board of the ship Gilmere, signed the usual articles to perform a voyage from London, via Swan River, to Sydney.  Sometime after the arrival of the ship in this port, the Respondent asked leave to go on shore, and though refused permission did go, and remained absent for three hours.  This was considered by the Appellant to be a breach of the articles, and he discharged the Respondent, who, thereupon, applied to the Magistrates in General Sessions for his wages, under the Act 37 Geo. III. cap. 73, which provides that there shall be an absence from the ship of twenty-hour hours, in order to constitute a desertion.  Upon the enquiry before the Justices, as well as on the present occasion, it was contended by counsel, that the statute under which the claim for wages was preferred, did not apply to this Colony; but the Bench overruled the objection deciding that, to constitute a desertion there must be twenty-four hours' absence, and that the then complainant was entitled to his wages.  From this decision Capt. Geary appealed, when counsel on behalf of the Appellant argued the case at considerable length, and referred to the articles of agreement, by which it was provided that an absence of one hour should be considered a desertion from the ship.  The learned gentleman also cited the 4. Geo, IV. cap: 25. (ยง. 9. to show the effect of desertion, or being absent contrary to the articles entered into; also 2 A. R. 241.

On the part of the Respondent, it was argued, that the legislature had deemed it necessary to define in express terms what shall be a desertion, and what shall cause the forfeiture of wages.  Seamen were objects of the special care of the legislature, in order to prevent frauds being committed, and forfeitures imposed on ignorant men.  In the present case, the agreement relied on, so far from being framed agreeably to the Act of Parliament, directly contravened it; and if such articles as those before the Court were allowed to entitle the master of a ship to detain the wages of a mariner, on the ground of breach of agreement, the mariner would be put entirely in the power of the master, whose interest it was to occasion a forfeiture, and who, consequently, lay under every inducement to make a mariner do something to render him liable to the law of  forfeiture.  It was also contended, that the Acts of Parliament which render a forfeiture the consequence of a violation of ``articles" refer to ``the articles" expressly directed by the legislature; that the articles before the Court were not agreeably to the statute, and that consequently the statute did not apply.  This case, in fact, was like a mere ordinary case of forfeiture for conditions broken, and similar to a bond with conditions, in which the penal sum was merely to cover damages actually sustained.  Here there was no damage alleged - none proved - none sustained; - but contra, the whole evidence went to show, that the Respondent did not go out of the ship till 7 o'clock in the evening, and returned to the ship in three hours after, was paced in charge of some constables, and discharged the next day.  Here, then, a double forfeiture was attempted to be imposed - first, a discharge, and, secondly, a forfeiture of all the previous earnings of the voyage.

The Court took time to look into the affidavits, and intimated its intention to give a deliberate decision upon the point.

FRIDAY, 18.

At an adjourned sittings of the Court this day, His Honor pronounced the following judgement in the above cause:-

This case comes before the Court, upon appeal from the decision of two of His Majesty's Justices of the Peace in Sydney, made upon the complaint of a seaman of the ship Gilmore, against the master, for dismissing him from the ship, and afterwards refusing to pay him any wages.  The proceedings before the justices, as well as the appeal, are founded upon the jurisdiction assumed to be given by the Statute, 59 Geo. III, cap. 58.  A very important question arises, whether this Court, or the parties before whom the complaint was originally heard, derive a jurisdiction, in this cace, under the Statute referred to.  Before I touch upon that question, however, I will briefly review the facts of the case, and state the grounds upon which I am of opinion that the decision of the justice was right, upon the merits, independently of the point of jurisdiction.

It appears, by the articles between the master and the seamen of the ship Gilmore, that the seamen engaged to proceed on a voyage from London to Swan River, and from thence to such place as the master should direct, until the ship's return to the port of London; and, among other stipulations, it was expressly agreed, that in case any one of the seamen should quit the ship, for the space of one hour, without leave being first obtained from the master, such seaman should forfeit all the wages then due to him, together with his clothes and effects.  It further appears by the depositions taken before the Magistrate, that while the Gilmore was lying in the harbour of Port Jackson, one of the seamen, the present complainant, asked permission of the master to go on shore, for the purpose, as he asserts, of having his clothes washed, and that he was refused by the master; notwithstanding which refusal however, he did go on shore, and remained there, by his own admission, for four hours.  On his way back to the ship, he was met by the master, and put in charge of constables, who conducted him as a prisoner on board the Gilmore.  The complainant further states that he went to his duty, as usual, at 8 o'clock in the morning of the 12th of May, and continued until 10 o'clock, when he was informed that his rations were stopped, and he was no longer to be considered as belonging to the ship.

Upon this state of facts, the seaman made his complaint to the Justices, who considered his discharge as not being warranted by his conduct, and they awarded the sum of fifteen pounds six shillings and four-pence to be paid to him, by the master, as the balance of the wages then due, for so much of the voyage as he had performed.  I should not feel disposed to disturb this decision, however I might entertain some difference of opinion as to the correctness of the conclusions drawn from the mere facts in evidence.  On the other hand, disobedience of orders is a very serious breach of agreement in a seaman.  In no civil contract is the obligation of implicit performance more necessary than in that between the master and seamen of a ship.  The success of the voyage, the security of the ship, the property of the owners, and the lives of the crew, depend upon the observance of this first of duties.  The injurious consequences which may be sustained, therefore, by a failure in this contract, are not to be estimated by the mere value of the service unperformed.  It is the act of disobedience, with its influence, its pernicious example, and its train of possible consequences, which is to be considered.  In this point of view, I should hold, as a principle, that the absence of less than one hour, might, under given circumstances, become a just cause for the discharge of the seaman, and the entire forfeiture of his wages.  But at the same time, and in the spirit of the same rule, it is not every act of the seaman, although in contravention of his express agreement, that should work so large a forfeiture.  The reasonable requests of seamen to the masters, to be allowed to go on shore, occasionally, for particular purposes, should be complied with, unless there be some sufficient reason to refuse them.  It can hardly be presumed, that in contracting never to go out of the ship for one hour during a voyage, which, in the natural course of things must occupy nearly two years, without the leave of the master, such leave might be arbitrarily and unreasonably withheld.  In the case of the Minerva (1 Hog. A. R. 347), it was held, that in the construction of seamen's articles, ``the Court of Admiralty will, as a Court of Equity, consider how far the engagements are reasonable or not, and will bear in mind the general ignorance and improvidence of seamen, and their inability to appreciate the meaning and effect of a long and multifarious instrument."  And in the case of Neave v. Pratt (2 New. Rep. 408) a case, in same respects like the present, where a mariner had quitted the ship, contrary to the terms of his agreement, without the leave of the master, being refused his wages, brought an action against the master to recover them.  Mr. Justice Chambre, before whom the cause was tried, told the Jury, that, under such a clause, he did not think the master could refuse leave without a sufficient reason, and this opinion of the learned Judge was afterwards confirmed by the Court of Common Pleas.

Upon the merits of this case, therefore, I should incline to leave the decision of the Justices where I find it; as I believe that, under the facts stated in evidence, the same conclusion would probably be drawn by Justices in England.  But I have serious doubts how far the cased itself comes within the jurisdiction of the Justices in this Colony.  I apprehend that some degree of error prevails as to the true meaning of that section of the New South Wales Act which directs, that all the laws in force, in England, at the passing of the Act, should be applied by the Courts here, in the administration of justice.  I conceive that this clause in the Act referred to means, that all the Acts of Parliament, and the Act 59th, Geo. III. cap. 58. inter alia, shall be considered as part of the municipal laws of the Colony - the lex loci - under which Justices of the peace may entertain complaints made by seamen, upon contracts entered into within the Colony, and determine them in the summary manner pointed out by the Act - not that it shall be lawful for any Justices of the Peace in New South Wales, to have the same jurisdiction in cases of contracts between masters and marines, entered into in England, as Justices residing in England. - The policy of the Statutes for regulating the hiring of seamen, in England, requires that their wages should not be paid to them abroad. - The objects of the legislation have been many - to prevent desertion from the ship, during the voyage; to secure the return of seamen to their country; to prevents this improvident class of persons from being defrauded of their wages, under the pretext of their being paid by advances at different periods; and in the event of their return to their country, or their loss by the perils of their profession, to prevent themselves and their families from becoming a charge upon the parishes to which they belong.  -  In furtherance of these wise objects of the legislature, it is made a misdemeanor by a very late Act of Parliament (9. Geo. IV. cap. 31. sect. 30, in any master of a Merchant vessel, wilfully to leave behind,, any seaman, in any of his Majesty's Colonies or elsewhere; or to refuse to bring him home. - Looking therefore at the policy of the laws, and the enactment of the last Statute, I have very grave doubts how, far the Justices had a jurisdiction in this case. - I will not however disturb their decision; but I would suggest to them the expediency of stating a case, and requesting his Excellency the Governor, to transmit it to England, and obtain the opinion of his Majesty's law-officers, upon the point of their jurisdiction in cases like the present.

Counsel for the appellant, Mr. Therry for the respondents, Dr. Wardell.

 

Notes

[1 ] See also Sydney Gazette, 28 August 1830.  On this case, see Michael Quinlan, ``Regulating Labour in a Colonial Context" (1998) 111 Australian Historical Studies 303 at 310.

This case was reported by Legge, and is the earliest case to be formally reported in New South Wales.  The reference is (1830) 1 Legge 1.   Gordon Legge was a barrister who published two volumes of reports in the late 1890s, which he called "A Selection of Supreme Court Cases in New South Wales, from 1825 to 1862".  In fact this, the first of his cases, dates from 1830.  Legge's aim was to publish cases which were still significant in the 1890s.  He reprinted the reports from the Sydney Gazette and Sydney Herald primarily, and checked them against the judges' notebooks when possible.  However he only reprinted seven cases from the period of the Forbes Chief Justiceship (1824-1836).  In this case, he republished the Sydney Gazette account which is also reproduced here.  Legge summarised the arguments of counsel, rather than reproducing them in full, as is done here.

Legge also provided the following headnote: "Quaere, whether under the New South Wales Act Justices of this Colony have jurisdiction to entertain complaints of seamen, upon contracts entered into outside the Colony, as they undoubtedly have upon contracts made within it.

"Absence of  a seaman from his ship for three hours without leave does not necessarily work a forfeiture of wages, although so provided by the agreement of service."

Published by the Division of Law, Macquarie University