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

Taylor v Christie [1831] NSWSupC 47

ship's crew - ship, discipline on - assault - false imprisonment - jury, improper remarks by

Supreme Court of New South Wales

Dowling J., 7 July 1831

Source: Sydney Gazette, 12 July 1831[1 ]

(Before Mr. Justice Dowling and a Special Jury.)

Taylor v. Christie.

This was an action brought by a seaman lately belonging to the ship Red Rover, against his Captain, for flogging and imprisoning him.  The defendant pleaded first the general issue ``Not guilty;" and, secondly, a justification, setting forth generally, that the plaintiff had neglected his duty, and behaved in a mutinous and disorderly manner.  The evidence for the plaintiff, consisting of some of the guard, and some seamen who had left the vessel, two of whom had also been flogged, and one of the two had commenced an action against the Captain, proved clearly that the plaintiff had been flogged; but it was elicited from them in cross-examination, that one of the crew, Blyhte (also an evidence for the plaintiff), had, contrary to a standing order, taken his grog below; his allowance in consequence was stopped, and upon his refusal to work until his grog was returned, and being insolent, he was put into irons.  The crew then entered into a combination, and refused to perform any duty until Blyhte was released.  The Captain gave orders to furl a particular sail; all refused, or rather said they would do it ``if Blyhte was released."  The Captain then determined to call every man individually to his duty, and the ``watch list" being brought up, the first man, Jones, was ordered to furl the sail.  He gave the same answer, namely, he would do it ``if Blyhte was released" - he was then flogged by the first and second mates.  The second man on the list, Taylor, was then ordered to perform the duty; he gave the same answer, and was also flogged, the Captain himself giving the first dozen very severely.  The third man on the ``watch list," Marshall, was then called, and answered as before, and he was tied up; but, as there were some symptoms of returning obedience, he was not flogged; the Captain, however, threatening every man with punishment who did not return to his duty in the morning, at which time, happily, all did return to duty.  It appeared, also, that the commander of the guard, and the doctor, remonstrated with the crew on the impropriety of their conduct, but in vain.  Previous to this affair, there had been considerable insubordination in the ship; but afterwards the crew behaved in a most becoming manner.

The Counsel for the defendant (Mr. Norton) read the depositions de bene esse of the two mates and declined offering any further evidence.  The Counsel for the plaintiff then proceeded to offer evidence to rebut the plea of justification, and recalled all the former witnesses, who deposed that they saw no acts of mutiny; they stated, also, that they did not consider the imposing a condition on the performance of their duty, to be a refusal to perform it.  This evidence reminded the Court of the man who could produce on hundred witnesses who did not see him steal a horse.

After the learned Counsel had examined all his own witnesses, with a degree of zeal for the interest of his client truly laudable, he proceeded to examine those which the defendant had subpoenaed, but had not called.  The surgeon of the ship confirmed the defendant's case.  Major Croker was then called, with an intimation that the learned Counsel had ten witnesses more.  At this stage of the proceedings, the Foreman of the Jury asked, ``Whether it was necessary to hear more evidence, if the Jury were satisfied?"

The Counsel for the plaintiff said, if that was the case he would throw up his brief.  The Judge observed, that the Jury should have heard all the evidence before making such a remark.  One of the Jury said he had not authorised such a question, and two or three others expressd [sic] disapprobation of the proceeding.  The Foreman said he understood that it was the wish of all the Jury, or he would not have asked the question; a paper had been handed round, and he understood the opinion was unanimous.  Two or three of the Jury said they had wished to hear all the evidence.  The Foreman said, we are ready, and in fact bound to sit till midnight, if needful; if the defendant chooses to bring more evidence we are ready to hear it.

The Counsel for the plaintiff said he would decline bringing any more evidence, or conducting the case an inch further.  The Judge said it was certainly irregular in the Foreman to make such an observation, and if the Counsel for the plaintiff chose to withdraw the record he must dismiss the Jury.  The learned Counsel would not withdraw the record.  The Judge said, it is the only way to proceed, and will enable you to try the case before another Jury.  The learned Counsel could not consent to withdraw the record; with all due respect for the Court, he must beg to do nothing - after such an expression from a Jury he could not go on.

The Jury expressed their desire to hear further evidence; they had not fully made up their minds, but only as far as they had heard the evidence.  The last witnesses called by the plaintiff had certainly strengthened the defendant's case.  The Counsel for defendant still declined doing any thing, and the Judge proceeded to sum up, explaining at lentgth [sic] to the Jury the relative duties of master and mariner - and the great charge imposed upon the former; what a conditional obedience was a virtual refusal of duty; and if the Jury were of opinion that the Captain had used moderate punishment to reduce a refractory crew to obedience, he was entitled to a verdict - if he had behaved with cruelty and oppression, the plaintiff was entitled to damages.

The Jury, after a short deliberation, returned a verdict for defendant.

Notes

[1 ] See also Australian, 8 and 15 July 1831; Sydney Herald, 18 July 1831.  The Australianreported on 8 July that Rowe, for the plaintiff, argued that a master could use only what punishment a father might use against a child, or a master against a servant.  Norton, for the defendant, argued that a commander had to maintain discipline, particularly in the absence of access to a court.

In Taylor v. Trigg (8 July 1831), the plaintiff also lost his action against the Chief Officer (Sydney Herald, 18 July 1831; Sydney Gazette, 12 July 1831; Australian, 15 July 1831).   The Gazetteand Australian of 15 July 1831 also reported that Jones, another seaman, lost his action against the captain, and that he then abandoned his case against Trigg, as did another seaman, Marshall.

Published by the Division of Law, Macquarie University