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

Lewis v Lambert (1835) NSW Sel Cas (Dowling) 225; [1835] NSWSupC 73

ship's crew - ship, discipline on - assault - false imprisonment - Admiralty, jurisdiction of - New Zealand - Bay of Islands - whaling - naval officers, judicial power of - damages, nominal - mutiny - strike - Supreme Court, delay in delivering judgments

Supreme Court of New South Wales

Dowling J., 19 March 1835

Source: Australian, 24 March 1835

Thursday. - Lewis v. Lambert. - This was an action for false imprisonment in H.M.S. Alligator; Lewis had signed articles to go as an able seaman in the Cape Packet.  On Christmas Eve plaintiff and some others had saved up their grog and got drunk, struck Hindson, the Captain, and were otherwise outrageous.  The next day they kept down below, and when they came for their grog in the evening, it was on that account refused them.  They then swore they would do no more work, and persisted in that determination.

Upon the Cape Packet arriving at New Zealand, the Captain applied to Mr. Busby, who directed him to Captain Lambert, of the Alligator.  Captain L. at first was unwilling to interfere; but on Hindson declaring that if the plaintiff and another remained in the ship he must return to Sydney, and further, that he was apprehensive of their seizing the ship, Captain L. took them out of the ship, and confined them on the gun deck in the Aligator, feeding them on prisoner's allowance, but not keeping them in irons, though under charge of a sentry.

The Jury informed the Court that they had made up their minds, but wished to be informed of the law of the case.  Mr. Justice Dowling said that it was immaterial whether it was a man of war or a merchantman which conveyed the plaintiff to Sydney as a prisoner - the action for damages could only be brought against Captain Hindson, unless it could be shewn that Captain Lambert had been harsh or unnecessarily severe.  Verdict for the defendant.  This verdict will not prejudice any action which may be brought against Captain Hindson.

 

In banco, 28 March, 19 September 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

[p.82] [Saturday

28th March]

[A Captain of the Royal Navy has no right to take a British seaman from on board a merchant man on the high seas, charged with disorderly & mutinous conduct, & convey him as a prisoner in his own vessel to the nearest British Port to be dealt with according to law.]

In Banco

James Lewis v George Lambert Esq

Trespass assault and false imprisonment, committed on Plf on the 16th March 1834 on board a vessel called the Cape Packet, then being in the Bay of Islands at New Zealand and forcing Plf to go into a certain boat on board the Ship Alligator, whereof the deft was commander, and imprisoning him therein for six weeks, without any reasonable or probable cause, and carrying the Plf against his will to Sydney in the territory of New South Wales.  Pleas 1st Not Guilty. 2d A special Justification setting forth that Deft being Captain in His Majesty's Navy, & commanding His Majesty's Ship Alligator at the time and place when &c, & it being his duty as such to protect all British vessels in the South Seas in the high seas and all places within the jurisdiction of the Admiralty of England, as well as at the place where &c.  And that William[p.83] Hindson, the master of Cape Packet a British vessel made oath before said Deft that said Plf being then on board said vessel called the Cape Packet, had behaved himself in a violent, mutinous, and disorderly manner, dangerous to the peace of the crew and to the safety of the said vessel, and there being no other British authority with power to protect Britishvessels in the said place, the said Master required Deft to take plf out of the said vessel as aforesaid; whereupon Deft to being Captain of said ship Alligator, for the preservation of discipline and good order in and on board said vessel called the Cape Packet at the said time when &c did then & there take the plf on board the Alligator & did convey him to Port Jacksonin said Colony, being the nearest British Port to the place when &c as it was lawful for him to do for the cause aforesaid, and which are the same supposed trespasses with declaration mentioned.  Issue [p.84] on the first plea, & to the second, replication de injuria &c.

At the trial before Dowling J. & a special Jury, during the present term, it appeared in evidence that the plf was an articled mariner on board the Cape Packet belonging to the Port of Sydney, on a whaling adventure in the South Seas.  The Plf and some others of the crew had behaved in a mutinous & disorderly manner, which in the Judgment of the Captain rendered it necessary for him to put into the Bay of Islands in New Zealand to seek redress.  There is a British resident at the Bay of Islands.  The Captain there found the Deft commanding His Majesty's ship Alligator.  The Captain went on board and made a complaint to the Deft of the disorderly and mutinous conduct of the Plf.  The Deft referred the Captain to the British resident as the possible authority to hear his complaint.  The Captain then went to the British resident, who declined interfering on [p.85] the ground that he had no authority to administer an oath.  Upon this being communicated to the Deft, he, at the desire of the Captain of the Cape Packet, went on board that vessel; & upon hearing the complaint, he brought the plf in custody on board the Alligator.  Next day the deft being on board his own vessel & the presence of the Plf took the statement of the crew on oath causing it to be signed by them respectively in writing, and afterwards carried the Plf as a prisoner to Sydney, where he was discharged. (The Plf was taken before the Bench of Justices at Sydney, but they could not take cognizance of the complaint against him during the absence of the Master & Crew of the Cape Packet & therefore he was discharged.)  The Cape Packet proceeded on her voyage from the Bay of Islands, & did not return to Sydney for some months afterwards.  The Captain was examined as a witness on this trial and stated that he considered the step he had taken as necessary for the safety of the vessel, in consequence of the mutinous conduct of the Plf & other of his crew and that if the Plf had not been taken out of the vessel, he must have returned without cargo to Sydney to the complete loss of the voyage.  It was proved by a Captain in the Royal Navy that Captains of the Royal Navy [p.86] administer oaths at sea, and one witness proved that he had known an instance a disorderly seaman being taken from on board a merchants ship at sea, & flogged on board a King's Ship, for his misconduct, and returned to his vessel again.  This latter head of evidence was objected to, on the ground that the usuage on board King's Ships, unless a common law usuage, could not affect the case which must be determined by the question whether the Deft had a lawful authority to take the Plf out of the ship under the circumstances proved.  The Judge was of opinion that in this court, he could not received such evidence, but reserved that question.  It was then contended that assuming the captain of the Cape Packet would be justified in putting the plf under arrest, confining & even inflicting corporal punishment upon him suited to his offence, still he could not delegate that power to another and send him out of the ship in charge of the Deft and therefore the latter had no [p.87] authority to receive him.  For the Deft it was contended that the Lord High Admiral had a prescriptive right in the high seas to interpose for the protection of the lives & properties of His Majesty's subjects, and that power being delegated to the Deft, he may act in like manner and is to be considered in all respects as a Magistrate on the High Seas with authority to administer the oaths & take cognizance of offences committed at seas.  The deft was therefore justified in what he did under the circumstances of the case.  Dowling J. directed the Jury to the following effect:-  "As a general principle (without reference to any commission of special instructions from the lord High Admiral) I hold it to be lawful (as at present advised) for the Captain of a British Ship of war, to assist in the protection of the lives and property of His Majesty's Subjects on the High Seas, and that if a case of necessity [p.88] arises, he may lawfully take charge of a disorderly or mutinous British Seaman from on board a British merchant vessel on the High Seas, and convey him to the nearest British Port to be dealt with according to the law of England; and if he acts honestly and bona fide, without duress of imprisonment (i.e. without any unnecessary severity of restraint) he will be justified.  The reasonableness of the ground for his so interposing is matter for the determination of the Jury, under the circumstances proved in evidence.  If they are satisfied upon the evidence, that the conduct of the plf was so refractory and mutinous as to render his removal from the Cape Packet necessary to the safety of that vessel, then I hold it lawful (until the contrary is shewn) for the Captain of H.M.S. Alligator to take charge of and convey him to the nearest British Port, using towards him no more restraint than was necessary for his safe custody.  By law the [p.89] Master of a British Merchant ship may, upon just and reasonable cause, put a sailor in irons and restrain him of his liberty.  The justice and reasonableness of the cause is for the Jury.  If there was an absolute necessity on the part of the Master of the Cape Packet to restrain the Plf of his liberty for the safety of the ship till the end of the voyage, his merely putting him on board a King's ship in the mean time is only another mode of continuing his lawful restraint and if the Plf has been unlawfully damnified by such restraint, his remedy is against the Captain of the Cape Packet who set the Deft in motion; for I hold that the commander of a ship of war on the high seas may on reasonable grounds and acting fairly within the scope of that general implied authority committed to him of protecting the lives and property of the King's subjects receive on board his ship (if he thinks fit) for the protection of the property of [p.90] British subjects, any British subject, offending against the laws of his country on the high seas.  He does so no doubt, at the peril of its turning out, that there was no reasonable ground for lies so acting.  The reasonableness of the ground is for the jury to determine.  Was this Plf so misconducting himself, and so violating his duty as a seaman on board this ship - as would have excused the Captain of the Cape Packet in putting him under restraint & conveying him at once to Sydney?  If he was so, then, as at present advised, subject to the revision of my direction, I hold that the Deft was justified, as the Captain agent, in bringing the plf a prisoner to Sydney to be dealt with according to law.  This, I apprehend to be the good sense, if it is not the strict law of the case.  That, however, will be matter for future consideration, whichever way you find your verdict."  The Jury under this direction found for the Defendant.  Liberty however, [p.91] was given by the Judge, to move to enter a verdict for the plf with nominal damages, if the court should be of opinion that although the master of the Cape Packet might have been justified under the circumstances of the case, in bringing the plf a prisoner in that vessel to Sydney, yet the Deft could not be justified.

Foster now moved to enter a verdict for the Plf accordingly.  Admitting that the plf had conducted himself in a mutinous and disorderly manner on board the Cape Packet, still that would not justify the Deft in taking him out of that Ship and bringing him to Sydney.  The master of a merchant ship may of his own authority punish a mariner in a reasonable manner for disobedience or disorderly conduct, his authority in this respect being analogous to that of a parent over his child or of a master over his apprentice or scholar (Abbott on Shipping p.160 4th Ed).  Conceding that the master might in [p.92] this instance have put the plf in irons for a necessary cause, and have brought him in the Ship to Sydney to be dealt with for his misconduct, still he had no authority to hand him over to the Deft, & the deft had not authority to receive him for that purpose.  Admitting that a case of extreme necessity might arise for turning a mariner out of a ship in which he was serving under articles, still no such necessity here arose, for the Master might have got rid of him at New Zealand.  The Master had only a domestic authority over the Plf.  He could not transfer that authority to another still less to a captain of a man of war, who might never arrive at the port to which the vessel belonged.  The mariner under such circumstances might never have redress, or have a proper investigation into the circumstances which caused his removal [p.93] from the vessel to which he was attached.  It would be a strange doctrine of the Master of a merchant vessel could thus terminate his contract with a mariner though the object might have been to bring this man to a British Port to be dealt with according to law, it is clear that the Deft could bring no legal charge against him on shore, for the Cape Packet might never have arrived.  Was the plf to remain in custody until the Master could proffer his charge against the plf.  This man had no means of defending himself, and he is brought prisoner here without any lawful authority.  No law can be found to justify the conduct of the Deft, ho has assumed an authority that does not belong to him.  A mere usuage of this kind (if it really exists) is not lawful & cannot be supported.  The capt of the Alligator is therefore without defence, & a verdict must be entered [p.94] for the Plf.

The Attorney General (KinchelaThe Solicitor General (Plunkett) and Wentworth contra.  The verdict must stand.  This case involves a question of great public importance to the commercial and shipping interests not only of this Colony, but of Europe.  It is conceded on the other side, that the conduct of the plf was so mutinous and disorderly that the Master might have brought him in irons to this port to be dealt with as a mutinous seaman.  Instead of doing so, whereby he might have been confined for many months the Captain more humanely put him on board a King's Ship without irons, to be brought at once to Sydney.  The Jury have found that the conduct of the Plf was dangerous to the safety of the ship.  The single question then is whether the Deft was bound to relieve the British Ship Cape Packet from the dilemma in which she was places, by receiving the [p.95] Plf on board the Alligator and conveying him to Sydney.  Had he such a power?  We contend that if he had no such power by statute, he had so by the common law and the usuages of the Royal Navy.  It is quite clear without such power the Navy ofEngland would be of very little use in the high seas.  The deft here represents the Law High Admiral of England, & to him is delegated the like power which the Admiral might exercise.  To what end are ships of war sent from England in time of peace to this remote part of the world but to protect the King's subjects in their lives and properties? - Here a case of necessity arose for the interposition of this deft, & therefore the power exercised by him was incident to the purposes for which he was sent with his ship to the south seas.  This case must rest on principle in the absence of any express authority to the contrary. [p.96]  By the law of England the King of England is Lord of the four seas and his power over the ocean has extended from time to time by the growth of the Navy and the maritime ascendancy of Great Britain, and as far as his own subjects are concerned he has by his prerogative, the power of making laws for the government of the Navy.  This power he gives by Commission to Naval High Admiral for the maintenance of the rights of all manner of his people, & the guard thereof.  The Admiral is only the representative of the King on the ocean & the Captain is the Admirals assistant, in executing that authority which the King has delegated.  The King appoints Justices of the peace on land for the conservation of good order.  The Captain of a Ship of war is no more than a Justice of the peace at sea, & for the [p.97] efficient charge of his duties, it is necessary that he should exercise analogous powers to those exercised by justices of the peace on shore.  Assuming that there is no strict law for this, yet the power now contended for is incidental to the general duties of a Captain in the King's navy, & necessarily arises out of his commission whilst on the ocean.  It cannot be disputed that no action would lie against the Captain of the Cape Packet for sending this man out of the ship under the circumstances proved.  Then converso it will not lie on principle against the Capt of the Alligator.  If a necessity arose for turning the Plf out of the vessel, for the safety of the vessel, for the safety of all concerned, what does it signify whether he put him ashore at New Zealand or sent him back to the port from which he came?  All that the deft did was to aid [p.98] the Master of the Cape Packet in doing that which the latter had authority to do.  At the utmost it was only a continuance of that imprisonment which the Master had a authority to impose.  The Master might have imprisoned the man for all the time the ship was out, & he could have had no redress.  Shall the plf then have an action against the Deft, for confining him under the authority of the Captain - an authority which was only exercised?  The Deft was therefore justified from the necessity of the case.  The power thus exercised is analogous to imprisonment which has nothing but ancient usuage to support it.  They citedMolloy de Jure Maritius.  1 Haggart 158.  1 Tyrusutt. 285.

Foster in reply - This authority is not at all analogous to that of a Justice of the peace, who must shew that he has strictly kept within his jurisdiction & followed the letter of his authority.  This deft was justified in law or he was not.  Mere usuage will not control the law of England [p.99]  The deft is bound to shew that he had authority to imprison this man.  It is admitted that the Capt of the Cape Packet had a right to imprison the plf and put him in irons if there was a necessity for it, nay to flog him, but that right is only local namely so long as he is in the Ship.  The mariner by his articles consents to sail only in that particular vessel for that particular voyage.  That is the basis of the contract between the master & the mariner.  The moment the man went out of the vessel that moment the Captains domestic authority was gone.  If he might imprison him in his own ship, he could not imprison him elsewhere.  The Captain no doubt was bound to support his authority while on board ship.  This he might have done by putting the refractory seaman in irons.  There was no necessity therefore for sending him out of the ship to be kept a prisoner in [p.100] another vessel.  He ought at New Zealand to have given this man, at least, the option of staying there before he transferred him to the Alligator.  It is said that the right claimed on the part of the Deft is a common law right.  If it be so, something must have been said in the books about it; but no law, decision or even dictum is to be found to support it.  If there be such law, it surely must be found in some work on Maritime law; but none has been cited & none can be found.  The extract from Molley's de Jure Maritius has no bearing on the subject.  That was merely a treaty between different European nations at that time, to shew what sovereignty the King of England had in the Four seas.  This is a legal right or it is not.  This Plf may have got no more [p.100 (sic)] than he deserved, but that is not the question.  It may be conceded that it is a necessary & convenient power to be exercised in some cases.  No doubt it is a most important question, whether this general right claimed for Captains of ships of war does or does not belong to them.  It was convenient, beyond all question, for the Captain of theCape Packet to have the Plf removed out of his ship, but the question is whether the Deft had a right to take him out of the vessel in which he was an articled seaman, & bring him to port upon a charge of which he the deft knows nothing personally.  If this power does belong to Captains of men of war, some trace of it must have been found in the books.  There is not the slightest analogy to the right of imprisonment exercised in the time of war. [p.101]  That right is founded on account and immemorial usuage on the principle that it is the duty of every man to defend the state in time of danger, ( Rex v Tubbs Cowp.512.) and the right is recognized in various acts of Parliament.  Here there can be no such immemorial usuage, & nothing but an act of Parliament can give the power.

Cur. Adv. Vult.[2 ]

Note.  The Judges afterwards at a conference agreed that they could find no law to justify the Act of the Deft.  On looking to the Admiral's commission no such right as was claimed by the Deft was given.  In consideration however of the frivolousness of the action & it being damnum abseque injuria, they thought it better not to give any judgment for the present, until they should be better advised because of the danger of relaxing the wholesome restraint necessary for [p.102] the support of Masters of ships in this remote & now flowering part of the globe.

Judgment port proved sine die

They were afterwards called upon by the Plf for Judgment, but said that they would notify to the parties the time when they were prepared to give Judgment.

The Plf's attorney having again pressed for Judgment, now on this Saturday 19th September 1835,

[Forbes CJ.

Dowling J.

Burton J.]

[Saturday

19th September]

Forbes CJ. delivered the judgment of the Court in the following terms:-

This case has stood over for judgment for some time.  The delay in giving the decision of the Court has not arisen out of any difficulty in the case, or doubt on the minds of the judges, but from reluctance to give a decision which may produce some degree [p.102] of public mischief.  The few facts to which it is necessary to advert are these: - The Plf was an articled mariner on board the Cape Packet engaged in the South Sea whale Fishery.  While at sea, the Plf and other mariners behaved in so disorderly a manner as to render it necessary or the Captain if the Cape Packet to put into the Bay of Islands at New Zealand.  At that place the Deft happened to be at the time in the command of H.M.S. Alligator, sent there for the protection of British Shipping and trade expressly.  The master of the Cape Packet complained of the conduct of the plf, and having deposed to the fact of his conduct being mutinous and disorderly, & other witnesses having deposed the same fact to the Deft on board the Cape Packet where he went to inquire into the case, the Deft carried the Plf as prisoner on board of H.M.S. Alligator & brot him to Sydney.  These facts were proved at the trial of the case before Dowling J. & under the direction of the learned Judge there was a verdict for the Deft, with liberty to the Plf to enter a verdict for nominal damages if the Court should be of opinion that the Deft was not justified by law, in detaining Plf as a prisoner on the charge of the Master of the Cape Packet.  We are of opinion that there is no law to warrant the detaining the Plf under the circumstances stated, & therefore that the verdict must be entered for the Plf with one Farthing Damages.

Judgment for Plf.

 

Notes

[ 1] See also Australian, 25 September 1835: ``The Chief Justice gave judgment in this case; Lewis had been a seaman on board the Cape Packet, whaler; he and another behaved so ill that the Captain put into the Bay of Islands and delivered them up to Captain Lambert, of H.M.S. Alligator, who brought them on to Sydney in confinement.  There was no law by which Captain Lambert was justified in taking them.  Verdict for the plaintiff - nominal damages."

A letter to the Australian, 15 September 1835, complained about the delay of up to six months in the delivery of judgments after the argument was completed.

[2 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University