Skip to Content

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

Maher v Robinson [1833] NSWSupC 19

assault - passenger on ship - ship, discipline on

Supreme Court of New South Wales

Dowling J., 15 March 1833

Source: Sydney Herald, 18 March 1833[1 ]

Maher v. Robinson.  This was an action brought to recover damages for an assault and battery committed upon plaintiff, on board the brig Wellington, on the high seas.  The damages were laid at £500.

To this declaration the defendant pleaded first the general issue, not guilty, and in Bar to the action, that after the committing the acts alleged, the plaintiff received five pounds as full satisfaction.  To these a replication had been filed, denying that he had received the five pounds as full satisfaction, and a further replication that the discharge had been obtained through fraud.  On these pleas issue was joined.

The following case was made out on the part of the plaintiff:- On the 29th March, 1832, plaintiff with his wife embarked on board the brig Wellington, at Liverpool, he being a pensioner formerly belonging to the 62d Regiment; nothing particular occurred until the vessel left Hobart Town, when in consequence of a dispute arising between the plaintiff and another passenger, the Captain ordered them to be quiet; this not being attended to, the Captain had the plaintiff brought upon deck, and ordered handcuffs to be placed upon him; while plaintiff was holding up his hands to have them put on, the Captain cried out, ``don't strike my mate," and although plaintiff did not strike him, the mate replied, ``he has struck me;" the handcuffs having been put on, a chain was sent for, and he was secured to the transom beam by the ancle, on the starboard side; while in that situation, plaintiff had on only a shirt and a pair of trowsers, and the weather was bad; plaintiff told the Captain that the first British Port he came into he would have compensation; he'd lace him up like a pair of old boots, and annoying speeches of like kind; the Captain then sent a seaman for some spun yard, and a belaying pin having been put in his mouth, the man was ordered to secure it, and not to be afraid of pulling it tight; the man accordingly did so; the ship having gone about, plaintiff was removed to the larboard side, where his wife was allowed to bring him his bed and clothes; during the night, plaintiff said if he could not get justice by law, he would shoot him; while he was sleeping with his head on the transom beam during the night, defendant cautiously approached him and pulled him off, by which he fell with his face to the deck; plaintiff said, ``I know you Captain Robinson, I'll have satisfaction for this; you must not serve me so to amuse your passengers;" the gag was taken out in the morning watch; plaintiff was kept handcuffed and chained to the transom beam for four days; on the fourth one of the cabin passengers came up and made water over plaintiff and wife; plaintiff complained, and the Captain rushed upon deck, and taking a porrenger from plaintiff, who was drinking out of it, he threw the contents, which was coffee or cocoa, over him, and then struck him in the face with the vessel, telling him that he should come out of irons if he would fight the cabin passenger; this he refused, and the Captain ordered him into the cabin; while going down the companion, still handcuffed, the Captain kicked him down; the plaintiff was then put into the after-hold, and a chain of twenty or thirty pounds weight having been sent for, he was ironed in an empty break puncheon, the handcuffs being still on, and was only allowed up on one or two occasions.

No witnesses were produced on the part of the defence, the learned Judge minutely recapitulated the evidence, and the Assessors found a verdict for plaintiff, damages £100.

Messrs. Wentworth and C. H. Chambers for plaintiff, Mr. Norton for defendant.

 

Notes

[1 ] The trial notes are in Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, pp 8f.  See also Sydney Gazette, 16 March 1833.  The Gazette noted that the counsel for the defence (Norton) wanted to call two witnesses to prove that the plaintiff had agreed to give up the action in return for £5.  The witnesses did not appear.  Norton also submitted that the defendant was in charge of a vessel which had on board "150 individuals, whose early education, habits, and avocations in life was the very adverse point to peaceable or orderly conduct".  The plaintiff, Norton argued, paid all he had for this speculative voyage and saw this case as a chance to replenish his pockets even though it arose out of his own flagrant misconduct.

See also the related case of Lynch v. Robinson, 1833.

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