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

Lynn v Johnson (1830) NSW Sel Cas (Dowling) 919; [1830] NSWSupC 14

passenger on ship, deviation in voyage, contract, breach of

Supreme Court of New South Wales

Dowling J., 4 March 1830

Source: Sydney Gazette, 6 March 1830[1 ]


This was an action of assumpsit brought by the plaintiff Mr. Felix Lynn, against the defendant, as master of the ship Swiftsure, to recover the sum of £40, for a breach of contract.  The defendant pleaded the general issue.

From the evidence called on behalf of the plaintiff, it appeared, that in the month of September 1828, he contracted with Messrs. Thomas and David Askwaite, of London, the owners of a ship called the Swiftsure, for a passage to this Colony, for which he paid the sum of £80; the owners undertaking that, at the time of the vessel's sailing, she should be in every respect sea-worthy, and fit to perform the voyage.  It further appeared, that immediately after the ship sailed from Gravesend to prosecute her voyage, she became so leaky that the Captain (the defendant) found it necessary to put in at Portsmouth, where she underwent some repairs; but in four-and-twenty hours after she again put to sea, she was still found to be leaky, and the water continued to increase to so alarming a degree, that the defendant was forced to bear up to Lisbon, and entered the Tagus on the 8th of October, the vessel having made twenty-two inches of water in the hour for a considerable time before she reached the port.  At Lisbon ship was heaved down, and underwent a thorough repair, at the expence [sic] of £1200; but during the period she remained there (three months) the defendant refused to keep a table for the passengers, and obliged them to live on shore at their own expence [sic]. The cost to which the defendant had been put during his residence at Lisbon amounted to £40, to recover which sum he brought the present action, on the ground that the contract entered into by the owners, that the vessel should be sea-worthy at the commencement of the voyage had not been fulfilled.

On behalf of the defendant, it was urged, that, in point of law, he was not liable, inasmuch as no priority of contract was proved to have existed between him and the plaintiff; and that the action should therefore have been brought against the Messrs. Askwaite, the owners.

The Court held, independent of the evidence which shewed that he conducted himself as the authorised agent for the owners, that the defendant was liable to the plaintiff here, and had his right of action against the owner, if it was through any act of theirs that he had incurred his present liability. The learned Judge, however, stated that he would save the point, and afford the Counsel for the defendant an opportunity of taking the opinion of a full Court upon it.

Two witnesses were called on behalf of the defendant, who proved that it was the custom for passengers to live on shore when ships touched an any ports during a voyage, for pleasure, or to undergo repairs. These witnesses, who were captains of ships, also stated, that they considered the Swiftsure to have been sea worthy, notwithstanding she made twenty-two inches of water every hour, in so short a period after the commencement of the voyage.

The learned Judge summoned up the evidence, and left the case to the Assessors to say, whether, at the commencement of the voyage, the vessel was sea-worthy, according to the terms of the contract.  This His Honor stated, was the sole question for their consideration; as, if they were of opinion, from the testimony of the witnesses who had been examined that she was not sea-worthy, then the plaintiff was entitled to a verdict for such amount of damages as they should think reasonable and just.

The Assessors found. a verdict for the plaintiff; damages £40.

Scales and another v. Johnson.

This was a similar action to the above, in which the plaintiffs sought to recover the sum of £80, being the amount of the charges to which they were put during the detension [sic]of the Swiftsure at Libson.

Counsel for the defendant consented to a verdict, for the plaintiff, damages £80, subject to the opinion of the Court on the point reserved in the former case.

Counsel for the plaintiff, Mr. Wentworth; for the defendant, Mr. Norton.

Assessors W. J. Browne, and E. Woolstonecraft, Esquires.



[1 ] See also, Australian, 5 March 1830.

Justice Dowling commenced his record of this case as follows (Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 270): "The Captain of a vessel bound from London to New S. Wales being forced to put into Lisbond from original unsoundness in the vessel held liable to a passenger for the expences of living at Lisbond during the detention of the vessel for repairs."  See also Dowling, Proceedings of the Supreme Court, Vol. 31, Archives Office of New South Wales, 2/3214, p. 157.

See also Wilson v. Johnstone, 1829.

Published by the Division of Law, Macquarie University