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

R v Aglethorpe (1831) NSW Sel Cas (Dowling) 925; [1831] NSWSupC 68

master and servant - ship, discipline on - ship's crew, absence from duty - supervision of inferior courts

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 October 1831

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466[ 1]

[p. 107] Where a conviction of a merchant seaman on the Statute 29. G. 2. C. 36. shewed that the charge against him was "for absenting himself from his ship without the masters leave and he was found guilty of refusing to return on board to his duty and sentenced to 30 days imprisonment" for refusing to proceed on the voyage.

Source: Dowling, Proceedings of the Supreme Court, Vol. 61, Archives Office of New South Wales, 2/3244

[p. 138] The defendant was convicted on the 2 G. 2. c.36. "An act for the better regulation and government of Seamen in the merchants service" and the conviction having been returned by Certiorari into this Court, it appeared therefrom, that the Deft a mariner of the Georgiana under articles signed in London had absented himself from the vessel in Port Jackson without the Master's permission.  The Justices below convicted him "of refusing to return on board to do his duty." and for such refusal adjudged him to be imprisoned in Hills gaol at Sydney as a House of Correction for 30 days.  The charge in the information was for [p. 139] absenting himself from the ship without the quarters leave.

Rowe for the deft contended that the conviction was void not being warranted by the statute.  First the charge against the deft is for absenting himself from the vessel without the masters leave in violation of the 5th Section of the Statute.  Now the only penalty for such an offence under that clause us the forfeiture of two days pay for each day's absence to the use of the Greenwich Hospital.  For this offence the Justices are not authorized in awarding 30 days imprisonment.  But secondly, what is the offence of which the Deft is in fact convicted!  Not of absenting himself but ``of refusing to return on board to do his duty."  Now there is no such offence against which the statute provides.  The 4th section indeed renders an articled mariner liable to 30 days confinement & hard labour in the House of Correction ``If he shall refuse to proceed on the voyage," without giving a satisfactory reason for such refusal.  The magistrates probably intended to convict on this section, but if so they ought to have shewn on the record of conviction that the Deft did refuse to proceed on the voyage, & [p. 140] have convicted him accordingly.  He might have refused to return on board to do his duty, but this did not necessarily import a refusal to proceed on the voyage, for the man might have repented & determine at last to go with the ship, but by the committing him for 30 days it is put out f his power t do so.  The magistrates have confounded the two sections.  If they meant to convict him on the 4th Section they ought distinctly to have asked the man ``Do you or do you not refuse to proceed on the voyage." & if he then refused in terms they would be warranted din convicting him.  This is a penal act of parliament & must be construed strictly.  The magistrates shew no conviction within the terms of the act, & though in common parlance, a general refusal to return on board & do duty, might be included a refusal to proceed on the voyage, yet the Justices are bound to shew in terms that they had jurisdiction to convict for the offence stated on the record.  The deft [p. 140] is not liable to 30 days imprisonment for the offence described, & this being a summary  jurisdiction it must be followed strictly.

Wentworth in support of the conviction contended that a refusal to return on board & do duty was in legal effect & and in the spirit of the act a refusal to proceed on the voyage & therefore that the conviction was right.

Forbes C J & Stephen J thought the conviction wrong, not having pursued the words of the statute.

Dowling J This being a penal statute must be construed strictly, and I think the conviction too loose and uncertain to warrant us in upholding it.  The charge against this man is for absenting himself from the vessel without leave from the master.  Now the 4th Section makes this an offence, but it offers no penalty for such an offence.  The same section however renders a mariner liable to 30 days imprisonment & hard labour for ``refusing to proceed on the voyage."  This is not the charge against the Deft.  For absenting himself from the vessel, he [p. 142] would only be liable to be mulcted of two days pay under the 5th Section; & if that was the true offence proved against him he could nor be imprisoned.  He is in fact convicted of ``refusing to return on board to his duty"; so that there us a want of keeping between the offence charged & the offence of which he has been convicted.  There has been a departure in this respect, which in a case of this nature we cannot set right by construction and intendment. I think the justices should have kept in view the precise terms of the section in which they appear to have proceeded, & to have seen that the evidence squared with the offence there contemplated by the legislature.  They should have shewn by charge, proof, and conviction that the deft in terms refused ``to proceed on the voyage" for which he signed the ship's articles. The objection however is so very nice and technical, that probably no advantage will be taken  of so very small a slip of the magistrates in a [p. 143] case where there are so little merits with the Deft.

Conviction quashed

& the Deft discharged

by Habeas Corpus.

Rowe said he would undertake that no action should be brought against the Magistrates.

Notes

[ 1] In 1832, the New South Wales Legislative Council passed a new Act (2 Wm 4 No. 10) to deal with the relationship between masters and servants.  The short title made clear that its aim was ``for the protection of Masters and Ships from vexatious Suits in the said Colony."  See Sydney Gazette, 29 March 1832.

Published by the Division of Law, Macquarie University