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

Longeville v Brigstock [1833] NSWSupC 112

passenger on ship - agency - privity - warranty, implied - contract, breach of - common carrier - damages, assessment of  - damages, for mental distress

Supreme Court of New South Wales

Dowling J., 1 November 1833

Source: Australian, 8 November 1833[1 ]

Friday. - Before Judge Dowling and the following Special Jury - D. Allan, (Foreman,) J. H. Grose, S. North, T. Wills, J. Gilchrist, B. Acres, H. Bailey, W. Cordeaus, C. E. Wall, - (Talesmen,) T. Smith, G. Druitt, and T. U. Ryder, Esquires.

Longeville v. Brigstock. - This was an action to recover compensation in damages for breach of contract.  The damages were laid at £100.

Mr. F. Stephen stated the case to the Jury.  This was an action brought by Mr. Longeville a French gentleman, who came passenger to this Colony in the Westmoreland, against the Commander of that vessel, to recover a compensation in damages for breach of contract on the part of defendant, in not providing plaintiff with proper accommodation, and with good and wholesome provisions on his passage.  About twelve months ago, plaintiff purposing to proceed to this Colony, engaged his passage in the steerage; there were two prices, £20 and £30, the latter of which was paid by plaintiff, and for which he was to receive superior accommodation; on joining the vessel he was not provided with a berth, but was placed in some part of the steerage over the chain cable, without any place being allotted to him in which he could deposit his clothes or provisions.  He complained to the Captain, but without effect, for like some other Masters of vessels, he was more anxious to pocket the passage money, than to provide his passengers with proper accommodation.  The plaintiff in this case was in consequence subjected to every annoyance and misery, and His Honor would tell the Jury, that if Captains or Owners of vessels would receive passengers on board, and not provide suitable accommodations, they were liable in an action of this nature to make such compensation in damages as a Jury might think fit to award.  The provisions too which were served out to the plaintiff, perhaps in common with the other passengers, were of the very worst description; the beef was not fit for a dog to eat, and was constantly thrown overboard by the passengers as uneatable.  Had defendant been actuated by proper feelings, he would at least have done what was in his power to have rendered the plaintiff as comfortable as possible, but on all occasions he treated with neglect and contumely the complaints of the plaintiff, who, being a foreigner and imperfectly acquainted with the habits and language of Englishmen, was an object of derision to his fellow passengers, a circumstance which should have ensured him more than ordinary protection at the hands of the Captain, who, on the contrary, so far from repressing the annoyances to which he was subjected, virtually encouraged them by turning a deaf ear to all his grievances.  Many facts would come out in evidence to shew that defendant rather enjoyed than otherwise the distresses of the plaintiff; on one occasion complaining to the Captain of want of room, by which he experienced such discomfort, he was told to go and sleep with the pigs in the long boat, - and for one night he did actually try the experiment whether the pigs were not better society than his fellow passengers.  The plaintiff was a gentleman by birth and education, and a teacher of languages in this Colony; the defendant was, he believed, part owner of the Westmoreland, and well able to pay the small amount at which the damages were laid, and if the case were substantiated by evidence, as he was instructed it would be, he thought the Jury would consider the sum of £100 a very moderate compensation for the treatment plaintiff had experienced.

Several witnesses were called who completely substantiated the statement of Counsel.  It appeared that plaintiff had taken his passage after all the cabins were engaged, and was to have a hammock and proper space allotted to him, but that he was so cooped up with cables, cargo, spare sails, and lumber of all kinds, that in the opinion of the witnesses it was impossible for him to be otherwise than wretched.  He had several times complained to the Captain, but in point of fact, without experiencing any benefit.  The provisions were generally very bad, some of the biscuit was mouldy and the beef invariably of the worst description.  It was so hard, that on one occasion a saw was required to cut it, - and so uneatable that the steerage passengers frequently threw it overboard.  On one occasion the Steward served four days provisions at one time to plaintiff, and on the second day the remainder being spoilt, the Captain refused to allow him any more till the four days had expired, so that during the interval he was left to subsist upon the charity of his fellow passengers.  On one occasion, when complaining of his want of accommodation, the Captain told plaintiff to go and sleep with the pigs in the long boat, which he actually did for one night.  (Most of the witnesses were examined and cross-examined at considerable length, but nothing was elicited of any importance to the case to a different effect than our Reporter has thus briefly abstracted.)

Mr. Foster moved for a nonsuit.  He contended that plaintiff failed to make out the cause of action according to his delaration [sic].  This set forth a special ground of action, in which the plaintiff seeks to recover on a contract, which must be proved by clear legal testimony.  The receipt put in by the other side only proved that the Captain was bound to find a passage to this Colony, he did so, and plaintiff did not find fault with that, not a word was said about provisions, therefore there was no contract proved by which he was bound to find good and wholesome provisions, and if he were, why was not the scale to be issued produced by the other side, he felt satisfied his His Honor would nonsuit the plaintiff.

Judge Dowling would not withdraw the case from the jury.  The questions to be considered were First, by whom was this contract entered into, if with defendant was it as master of the vessel and Secondly, in what way was the contract to be construed, if it was entered into by defendant as the Master of the vessel he was legally bound and liable to provide plaintiff with suitable provisions and accommodation.  If plaintiff had been brought out merely as freight, there would doubtless have been a bill of lading from the owners in London to the consignee in Sydney to receive him; but what did the Captain do, why the moment plaintiff went on board he served out rations to him.  He was of opinion that as the declaration was framed, the evidence was sufficient to support it.  The receipt was evidence that £30 had been paid, but was not the contract itself.

Mr. Foster then addressed the Jury on the evidence, and called several witnesses who spoke to the provisions which were served to plaintiff being the same as every one else received, but it appeared that the beef was not suited to their tastes, although some of them said it was good.  The pork was good.  The plaintiff took his passage after all the berths were engaged.  The buiscuit which was mouldy, had been changed upon the application of the passengers.  (The testimony of defendant's witnesses did not upon the whole materially vary from that given on the other side.  It seemed to be undeniable that the beef was hardly eatable, and in point of fact, that plaintiffs accommodations were very bad.)

Mr. F. Stephen replied.  The defendant in this case was in the same situation as a common carrier and certain duties were imposed upon him by law as such.  It was for the breach of the contract which he entered into by receiving passage money, and not from the terms of any special agreement that the present action had been brought.  It was clear from the whole tenor of the evidence that plaintiff had not had good and sufficient accommodation and that the provisions were bad, and the Captain was answerable if the contract was entered into with him, - whether he was owner of the vessel or not.

His Honor summed up.  This was an action to recover a compensation in damages for breach of contract.  By a rule of Court plaintiff's was permitted in his declaration to set forth in a brief and intelligible form, the cause of action without going through the technicalities of special pleading, and plaintiff in this case had availed himself of the rule.

This action was for a breach of contract, the grounds of which were set forth in a simple intelligible form, stating the legal effect of the contract.  The receipt produced was evidence in proof of the averment that the sum of £30 had been paid by plaintiff for his passage.  Then if the defendant took plaintiff's money, and received him as a passenger, he was bound to provide sufficient accommodations and food, - for defendant was in the eye of the law a common carrier, and His Honor was of opinion that if the Jury thought he had agreed to take the plaintiff as a passenger, he was liable in damages, if good provisions and accommodations were not provided.  The questions to be considered here were - 1st. was the agreement or contract entered into with the Captain, and not the owners; if not with the former, the plaintiff could not recover.  The receipt showed that £30 had been received, and it was signed with the Captain's name, not on account of the owners, and if they were satisfied upon that point, then, secondly, had that contract been fulfilled, having reference to the amount paid for the passage, namely, £30.  If they found for plaintiff, His Honor thought in this action the damages could not exceed £30, the amount of the passage money.  The Jury, without requiring His Honor to read over the notes of evidence into, retired, and continued in consultation upwards of an hour.  They then returned, and desired to re-examine one of the defendant's witnesses.  After doing this, His Honor was requested to read over the notes of the evidence, which he did at length, commenting upon it as he proceeded.  The Jury again retired, and after another hour's absence, returned a verdict for the plaintiff, damages £25.

Counsel for plaintiff, Messrs. F. Stephen and G. R. Nichols.


Forbes C.J., Dowling and Burton JJ, 3 December 1833

Source: Sydney Herald, 9 December 1833


Tuesday. - Longeville v. Brigstock. - This was a cause tried before Mr. Justice Dowling and a Special Jury, on the 1st day of November last, when verdict was given for plaintiff, damages £30.  Plaintiff, who was a steerage passenger in the ship Westmoreland, from London to Sydney, and for which he paid the sum of thirty pounds, brought an action against defendant, who was commander of the said vessel, for not providing him with a proper berth, and for supplying him with provisions insufficient in quantity, and inferior in quality, contrary to the general contract with the passengers.  He laid his damages at £100.

Mr. Norton moved for a new trail in this case, on the ground that the contract on which the action was brought, was at variance with the evidence on the trial.  He always felt great delicacy in attempting to disturb the judgments of that Court; but in this case, he must say that he thought His Honor in summing up had laid too little stress on the evidence adduced.  The defendant was merely commander of the vessel, and had no interest therein.  It was, therefore, very hard on him to be subject to these damages.  The action, if necessary, which by the testimony of many witnesses for defendant, was groundless, should have been brought against the owners of this vessel.

The Chief Justice, without waiting for a reply, said his mind was made up in the matter.  The only point urged in this application, was the alleged variance between the contract and the evidence.  The contract was made in consideration of a sum of money paid by the plaintiff to defendant, who was to supply sufficient accommodation and provisions during the passage.  He (the Chief Justice) was of opinion, that something small in shape of damages would have satisfied the case, but he saw no grounds to disturb the verdict.

Mr. Justice Burton was of the same opinion as His Honor the Chief Justice.  What had been so powerfully urged by Mr. Norton, did not form a ground for disturbing the verdict; there was no legal ground for disturbing it.  If a person engages in a contract without naming his principal, he is himself liable.  If the defendant was not part owner, it was then very unfortunate to make himself personally responsible.  If taken literally, the contract was only for passage; but there was a stated allowance stuck to the mast, which shews that provisions were to be provided; a sleeping place, and the provisions should be good; that was the nature of the contract.  The Jury found that good and sufficient provisions had not been supplied.  He thought there was no sufficient ground for a new trial.

Mr. Justice Dowling. - The case had been tried by a Special Jury, who were, many of them, ship owners themselves; and after retiring for some time to consider their verdict, had returned and requested him to read the evidence again, which he had done.  They retired again, and after an hour's consultation, gave their verdict for plaintiff.  He hoped that he had not at all departed from the case.  The case had been tried by a constitutional tribunal, and they ought not to disturb it.



[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 90, State Records of New South Wales, 2/3273, p. 50.

Published by the Division of Law, Macquarie University