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

Cassim v The Mary Ann [1831] NSWSupC 19

admiralty - ship's crew - master and servant - ship, discipline on - contract, entire

Court of Vice Admiralty, New South Wales

Forbes C.J., 14 February 1831

Source: Sydney Gazette, 19 February 1831



(Before the Hon. Francis Forbes, Judge.)

Esop Cassim and others against the Mary Ann.

In this case, the petitioners preferred a claim for wages, on the grounds of a breach of contract on the part of the master of the Mary Ann, ill-treatment, and an insufficiency of provisions, on a voyage from Calcutta to Valparaiso, and thence to this port.  On a former day, the Court, after hearing the evidence, and arguments of Counsel on both sides, took time to consider its judgment, which was pronounced this morning, by the learned Judge, to the following effect: -

``This is a proceeding instituted against the master of the ship Mary Ann, now in this port, for the recovery of wages claimed by the crew, on a voyage originally contemplated from Calcutta to the West Coast of South America, and back.  From the admitted facts of the case, it appears that the original voyage has not been completed; but the complainants now come before this Court, and claim wages, pro rata itinerisi, on the several grounds of a deviation of the vessel from the original voyage, an insufficiency of provisions during the progress of the voyage, and also of alleged acts of ill-treatment by the master.  With respect to the ill-treatment complained of, I am of opinion that it cannot be investigated in this form of action.  This is a proceeding strictly in rem, founded on the lien which the crew possess upon the vessel for wages, and cannot be mixed up with an action, in personam, for any individual wrongs which the crew conceive themselves to have sustained at the hands of the master.  Such injuries are peculiar to cases of damage; they are proper subjects for enquiry in that form of action; and they cannot be investigated in a proceeding against the ship, for the recovery of wages - unless for the purpose of accounting for some fact arising incidentally out of the principal cause.  I am bound by the practice of the High Court of Admiralty, and that Court never admits the union of cases in one suit, so different in their nature as these --- 4.Rob. A. R. 311.  I feel the less difficulty in disposing of this charge of ill-treatment, because it has not been strongly relied upon at the bar; and because it would appear, from the evidence, of part of the crew, that the punishment complained of was idflicted [sic] in the usual manner, and for some alleged acts of misconduct.  The main, and indeed the only, point for my present consideration is whether the petitioners are in a situation to demand their wages, the voyage as originally undertaken, having not yet been performed.  This point must depend upon the true state of facts; but unfortunately there was no written agreement, between the contracting parties, and their respective statements are so opposed and irreconcilable with each other, that it becomes difficult if not impossible, to arrive at a just conclusion as to the true state of the case.  On the one hand the petitioners aver that the voyage was to have been from Calcutta to Valparaiso, for a cargo of copper, and from thence back again to Calcutta, touching if necessary at one or two specified ports for supplies; and that the period of the voyage was not to exceed thirteen or fourteen months.  This statement of the original terms of the contract is supported by the depositions of the Serang and other persons examined on the part of the petitioners.  But it is positively denied by the respondent; who swears that the movements of the vessel, after her arrival at Valparaiso, were to be directed by circumstances; and that the master on arriving at Valparaiso, and not being able to procure a cargo of copper immediately, engaged the ship to bring a cargo of wheat to Sydney in New South Wales and he goes on to depose that such was and is, the usuage with respect to sailors engaged in India, for the like voyages, and was so understood at the commencement of this voyage.  In support of this usage several witnesses have been examined, who state that it is not customary to particularize more than the first port to which a vessel is bound, or to specify the duration of the voyage.  With respect to the practice, it appears to me, that it is not unreasonable, in voyages of a speculative character in this part of the world, that a discretionary power of navigation should be left to the master of the ship, as it may seem to him to be most beneficial for the interests of the owners.  And I should not feel authorized to interfere with it, however opposed tot he policy of Parliamentary provisions in respect of voyages undertaken in Europe and the American colonies, such customs might be.  But it is not necessary in the present case, to advert to the Navigation Acts, or enter into any consideration of the usage of trade within the limits of the Company's Charter; as it appears to me that we have it, on unimpeachable testimony, from the mouth of the acting master of the vessel himself, that in the original voyage, this port was not contemplated.  The expressions used by the witness in his depositions, are evidently those of a person whose mind is strongly impressed with a distinction between a voyage from Calcutta to Valparaiso, and back, and a voyage to this colony, then, being a separate voyage, the crew were not bound to perform it; for it has been expressly held, that mariners are not bound to proceed on a voyage not originally specified or intended.  The decisions are clear on this point Hag. A. R. 347.  Had the question, therefore, been raised at this stage of the voyage, I should hold that the petitioners might have refused to perform the voyage from Valparaiso to this port.  But, in this particular stage of the case a new state of facts arises; with respect to which it is to be regretted, that so great a difference of testimony should here present itself, for upon the accuracy of one or the other of the statements, the justice of this case must depend.  On the one hand it is affirmed, that the second voyage was undertaken without the knowledge, consent, or will of the petitioners, who were informed that it would be to Lima, and that it would not occupy above three months; while, on the part of the respondent, it is denied that there was any concealment, and that the voyage was understood to be to New South Wales.  Here, then, is a complete difference between the witnesses.  It is impossible for me to say which testimony is true: I may have my own impressions on the case, but I am not warranted in acting on impressions; besides, one of the witnesses who spoke most positively on the side of the petitioners, the Serang, has a degree of interest in the result of the case, which would disqualify him from giving evidence in a court of common law, and which I am not prepared to say, might not have disqualified him here, had the objection been raised.  I should, therefore, be under considerable difficulty how to find my way through this part of the case, opposed as the statements of the witnesses are to each other, did I not feel some relief in being able to glean a few independent facts, which arise in the progress of these transactions.  As a matter of fact, it appears that an advance of money was paid to the petitioners at Valparaiso, on account of some voyage or other, and that a native Indian, named Mossdean, took his passage at that port for this colony, whence he has since returned in another vessel to Calcutta.  With respect to the advance of money, theSerang says, that it was paid on account of the voyage about to be undertaken.  Now, it is impossible to get over this fact.  If money was received, I apprehend it is conclusive of something.  The Serang, however, adds that at the time the money was received, there were five months wages due to the crew, and that the advance was only part of the wages so due.  Whatever might have been the opinion of that witness with respect to the right of the crew to receive money, I cannot say; but I apprehend, as a general principle, growing out of this case, and which applies equally to the East Indian as well as to the European trade, that seamen are not entitled to wages, till the whole voyage is at an end.  This principle is founded in universal policy, and is adopted in every maritime code.  It is it he best guarantee for the security of the ship, and the success of the voyage.  I should not think, therefore, considering the terms of the original contract; and the general usuage of the trade, that they would be entitled to wages; so that although the Serang says there were five months wages due, and that the crew received part, he states what is not legally true, and therefore they must be considered as having received an advance for something to be done; a position which is confirmed by the fact of Mossdean, a countryman of their own, having taken his passage in the ship at Valparaiso; for Sydney, from which place he proceeded on board another vessel to Calcutta.  Taking these facts for my guide, I own they rather impress my mind with the belief, that at Valparaiso the voyage to New South Wales was contemplated; and although the port might not have been specifically named tot he crew, that they knew a foreign voyage was to be undertaken, and received an advance of wages in consideration of that voyage, and that not having informed themselves of the express voyage they were about to undertake, they must be held to have left it to the discretion of the master, and are concluded by an implied consent.  Upon the whole of the facts, therefore, I cannot see that the petitioners have made out such a case as would show this to be such a deviation as to authorize them to leave the ship, and demand their wages; but that this intermediate voyage must be taken as part of the original voyage, which was to determine at Calcutta; and that the wages for the time taken in the performance of such intermediate voyage, will not be due and payable, until after the arrival of the ship at Calcutta, her ultimate port of discharge.  But another ground has been urged upon the Court in support of the prayer of the petitioners, namely, an insufficiency of provisions during the voyage; and if this fact were clearly established in evidence, the Court would have something upon which to rest its decision.  It has been adjudged in many cases that the master of the ship is bound to provide a sufficiency of proper provisions for the crew, in default of which the seamen may depart the vessel, without incurring a forfeiture of their wages. -  Abbot, 443.  Upon this part of the case, however, there is also conflicting testimony, and I can find nothing upon which I could justly apply the law. The learned Judge here read the conflicting statements of the witnesses and added; upon the whole of the case, therefore, and after the most mature consideration which I have been enabled to give it; I am of opinion that the petition must be dismissed.  At the same time, as I am not quite clear upon all the facts, I would press upon the petitioners the propriety of returning on board the ship, and upon the master the necessity of receiving them; because I cannot hold that merely coming on shore to seek for redress, can be held to be such a desertion as would entail a forfeiture of wages.  Besides, it cannot be supposed that so great a number of men, strangers in  the country, could be turned adrift, without some interposition on the part of the government.  If I am wrong in my decision, it is a consolation to me to know that the petitioners, on returning to their own country, will have more ample means of proving the circumstances under which they were shipped, the usages of the trade at Calcutta, and any acts of ill-treatment of which they may justly have to complain.  And I need not assure them, that from a government whose whole strength is founded in its impartiality and justice, they will receive the full measure of redress to which they may be entitled."

Dr. Wardell, on behalf of the respondent, stated that it was the wish of the master of the vessel, that the crew should return on board, and to abide the result of an investigation on their arrival at Calcutta.

Counsel for the promovents, Mr. Keith; for the respondent, Dr. Wardell.

The Court of Vice Admiralty was adjourned sine die.

Published by the Division of Law, Macquarie University