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

R v. Cape [1838] NSWSupC 76

ship's crew, abandonment - ship's crew, discipline - Supreme Court, jurisdiction, Tahiti - entire contracts rule - ship's crew, lay of profits - reception of English law, admiralty - whaling

Supreme Court of New South Wales

Burton J., 10 August 1838

Source: Sydney Herald, 13 August 1838[ 1]

Friday, August 10. - Before Mr. Justice Burton and a Military Jury.

Henry Cape, late of Sydney, mariner, was indicted for, that he, on the 1st of August, 1837, being master of a certain merchant vessel called the Cape Packet, and being a subject of our Lady the Queen, and being in command of the said ship in parts abroad, near the Island of Otaheite, within the jurisdiction of the Supreme Court, did unlawfully force on shore one James Macintyre, a seaman belonging to the said ship, and a subject of our Lady the Queen.  A second count charged the defendant with unlawfully leaving Macintyre behind, and a third with refusing to bring him home.

The Attorney-General briefly stated the case, and said that by the Act of Parliament 9th Geo. IV., if any master of a vessel shall force on shore, leave behind, or refuse to bring home any seaman whom he may take out, he shall be deemed guilty of a misdemeanor, and punished at the discretion of the court.

The first witness called was

James Macintyre, who being sworn said, I am a seaman, and belonged to a vessel called the Cape Packet for about three years; I joined her at Sydney for a South Sea voyage; the last time I entered was about twenty-two months ago; the first place anchored at was Roratonga; it was a whaling voyage, and we were to return to Sydney; about ten months since we arrived at Otaheite; we were anchor there; the captain gave orders to loose the fore top sail, which I did, and when I came down I heard a man ask if any more hands were coming on board; the captain said all he had to do was to hoist the top-sail; the man replied he should like to see some more hands on board first; we were two or three hands short when we left Sydney, and the third mate was ashore sick; she was two hundred and ten tons, and there were twenty-nine hands on board; the captain went on shore, and returned with a missionary named Pritchard; the men were called for aft; they went; I sat on the booby hatch, and Pritchard asked what were the men's grievance, and they said they wanted more hands, and he replied, "pooh, pooh, you ought to have me for a captain and I would show you the gangway pretty often"; the captain and Pritchard went ashore, and sent for some of the men, but they refused to come, and the captain came on board to sleep for two or three nights, and then took all the boats ashore and on Saturday some of the men went ashore to ask what was to be none with the ship, and they were told to come on Monday; two of them went, and Powell, the mate, came on board and said all the men were to go on shore; I refused to go on shore, saying I had done nothing, and the mate took the men ashore; in about an hour he returned and said the captain wanted me; I refused to go, and he said I had better go, or the natives would come and take me out, and I said before any of the natives would take me I would go, and I went and walked up to the church where the rest of the men were; Pritchard asked me if my name was Macintyre, and if I was agreeable to do as the rest had done, take a note for the oil, and leave the ship; I told him I had shipped in Sydney, and wished to go back in her, and as soon as I had aid this the captain walked away; I told Pritchard it was very hard to be turned out of the ship after being so long in the employ as I had; he wrote a bit of a note for me to take to the captain, and I took it to him and asked him what he was turning me ashore for, and he said because I had refused my duty, and I said I had refused no duty, and if I had done any thing wrong I was willing to go to Sydney in irons; the captain went into the church, and the missionary said that if we came at four o'clock he would draw up a document that should satisfy the captain that we had forfeited our wages; at four o'clock the captain was not to be seen, and we were to come in the morning; in the night I saw the second mate waiting with a boat of the captain, and I asked him to let me go on board, but he said the captain had told him to allow no one on board; the chief mate came on shore and I asked him to allow me to go on board for my clothes; he said yes, and I went on board, and when I had tied up my clothes asked the mate to go down to tell the captain I wanted to see him; he came on deck and I asked him to look at my clothes and see if there was anything belonging to the ship; he said there was no occasion for that; I told him to recollect he was turning me out of the ship against my will, and he said there is enough of that, and went below; I did not ask him to allow me to remain, I thought it would be no use; the mate then took me ashore in the boat; there were between thirteen and fourteen sent ashore altogether; I walked round to Marauka Bay, to see if I could get work at a schooner that was building; I remained there seven or eight days, and came up in a schooner called the Riatea, with some French missionaries; there were seven or eight hundred barrels of oil in the ship when I was put on shore, but I got no share of it; I tried to get my share at the Police Office, and Mr. Windeyer said we had better settle it by arbitration; I chose an arbitrator, but they would have nothing to do with him; the natives were very civil, but there was little to be got to eat; the other men were on the island when I left.

Cross-examined - We first came to anchor at Roratonga; the men did not before that insist on the Captain's going into the Bay of Islands; they asked him to do so; I went on shore at Roratonga; we got into no row to speak of; I did attempt to strike the second mate but the Captain interfered and prevented me; the second mate was drunk on shore fighting with the third mate; I jumped overboard and swam on shore; I did not insist that the Captain should go into Otaheite, but I dare say the crew did; I never heard the crew say that they would knock off work if the ship did not go into Otaheite; I did not complain of the water, but I heard they talking about it [illegible line of text] some of the men were ill, and some of them went aft and asked the Captain about a man that was sick with the scurvy; a Dr. Vaughan came on board but I did not hear him say that he water was good and there was noting the matter with the men; I did all I could to get the ship underway; I loosed the foretopsail, and was ready to help to hoist it; I did not lay hod of the halliards; I did not know beforehand the crew would refuse to set sail; I do not know how many men were on board at the time; we took six or seven natives on board at Roratonga; one of the men that shipped at Sydney ran away at Sunday Island, and one was left sick there; I do not know what the Captain went ashore for; Mr. Pritchard was not Consul there then, nor do I know whether he is there now; I did not see Mr. Morrinat the American Consul at the church; I do not know that he advised the Captain to set me ashore; Mr. Marshall came up chief officer of the Riatea; I saw Captain Wilson on board the ship several times; there was a ship at Otaheite called the Maria, but I do not know the Captain's name; I never heard the men threaten to throw Hawes the second mate overboard; I refused to go on shore although the Captain sent for me; I said I had done nothing wrong and would not go; I said this because a man in the boat told me that if I went I should not be allowed back again; I was afraid of the natives and that was the reason I refused to go; I am not sure how many vessels were there, but I think two or three; I had left Otaheite before the Conway arrived; when I first came to Sydney I did not go to an attorney; not until the ship came in; my first complaint at the Police Office was about my wages; the owners offered to leave the matter to arbitration; the man that I appointed was on shares the same as I was; he had been whaling eight or nine years ago; Captain Lawson was proposed on the other side; I never offered to compromise this matter for ten or twelve pounds; the missionary said in the church we had forfeited our wages; I did not prevent some of the best of the men from going with the Captain; I do not know he wanted them to go with him; I never saw Captain Cape prevented from taking the boats; I never knew that the crew slept on deck with lances to prevent any one coming on board; I know nothing about it.

By the Court - When I went on board for my clothes the chief mate took me on shore; I went into the boat by myself; he said jump into the boat and I will be after you as I am going on shore.

By Mr. Foster - I took no notice of what Mr. Pritchard said; I did not hear him ask why the crew would not hoist the topsail.

By the Court - I was not ordered into the boat; after that I did not ask the Captain to take me on board again; I was on board two nights afterwards and went ashore again, but did not see him; I saw the Captain the day the ship was going away, but I did not speak to him, as I was then going round the island to look for work.

His Honor said it did not appear to him according to this man's evidence, that the indictment could be substantiated.  Macintyre had been on board several times after he went on shore and should have remained unless ordered to leave the ship; he should have insisted on remaining, and on the morning when he saw the Captain on shore he did not apply to him to be taken on board.  It was easy to see the state of the ship; she was undoubtedly in a high state of disorder; the men would not even put their hands to a rope;; but the only question was, whether the defendant had committed an illegal act, which he had not if Macintyre in any way assented to being left behind.

The Attorney-General said that the evidence of Macintyre had not been taken at any length at the Police Office, but he had sworn that when he went ashore Captain Cape said not one of them should be allowed to go on board the ship.

Macintyre said that he swore that Pritchard said so.

After a slight discussion the Attorney-General said he would call another witness.

Mr. Charles Powers - I was chief officer of the Cape Packet, but do not belong to her now; I recollect some men being left behind at Otaheite, I do not know why; I never heard any quarrel between them and the captain; the captain ordered them to hoist the foretopsail, and they would not do it; I do not know why; they asked for some more hands; some days afterwards they were sent for by the captain; I was on shore, and the captain told me to bring them on shore; I took as many as I could; Macintyre did not go; the church was made a court house of, and the articles were read over to them; Mr. Pritchard and Captain Cape said they had refused their duty, and could go no more on board the ship; Macintyre was not there; I was sent specially for Macintyre, and he said he had done nothing wrong and why should he go, and I said if he would not go they could send the natives and force him ashore; I do not know what passed at the missionary's house.  (The witness here corroborated Macintyre about going for his clothes, &c.)  The captain told me they were an infernal set of scoundrels, and should not go to sea in the ship.

Cross-examined - I cannot say whether Macintyre was on board after I took him on shore with his clothes; I do not know that the crew slept on deck armed for two or three nights; I did not tell Captain Cape so; some time afterwards I brought a lance, an iron, and a boarding knife out of the forecastle when we got to sea; every thing had gone on quiet enough after we left Sydney until we reached Tahiti; I was very sick from Roratonga to Tahiti; I do not know whether the crew forced the captain into Otaheite; when we were off New Zealand the crew came aft and said there was a man sick with the scurvy who smelt so offensively that they could not live in the forecastle, and it would be better to put him ashore somewhere or he would die.

Thomas M'Cormick - I belonged toe the Cape Packet; Macintyre was left at Otaheite; they said the men refused duty; I did not hear Macintyre speak; when Macintyre went ashore with his clothes he told the captain he was turning him ashore against his will; fourteen or fifteen hands were left there; I came to Sydney in the ship; my share was £12 10s.

[Our reporter was forced to leave the Court here; but Mr. Cape was discharge without being called upon for his defence, His Honor being of opinion that the clause of the 9th Geo. IV., under which the indictment was framed, when taken in connexion with the 4th clause of the New South Wales Act, does not apply to the Colony.]

The defence was conducted by Messrs. Foster and Broadhurst.

 

Source: Australian, 14 August 1838[ 2]

 

FRIDAY. - Before his Honor Mr Justice Burton and a Military Jury.

Henry Cape was indicted for that he, being the commander of a British vessel called the Cape Packet, did, on the 1st of August, 1837, at Otaheite, in the South Seas, and within the jurisdiction of the Supreme Curt of New South Wales; force on shore and abandon one James McIntyre, seaman belonging to that vessel, and a British subject, contrary to the statute, &c.

The Attorney-General briefly opened the case, by stating that the indictment was for a misdemeanor, under the statute for the protection of merchant seamen, which subjected the defendant, if found guilty, to be punished at the discretion of the Court.  He then entered briefly into the case, and put the prosecutor into the box, who deposed as follows:--

James McIntyre -- I am a seaman, and belonged to a vessel called the Cape Packet; I was three years in her, and entered at Sydney, on a South Sea voyage, and to return to Sydney; I had been two voyages in her before; the last voyage was about twenty-two months back; it was a whaling voyage, and I was to be returned to Sydney; we touched at Otaheite, and I was there turned ashore; it is about ten months ago since I was turned ashore; the vessel was at anchor, and the captain gave orders to loose the fore top-sail; I went up and loosed it; when I returned on deck I heard the captain order it to be hoisted, and I heard some one say I should like to see some more hands got before I hoist it up; the captain said that is all you have to do; the third mate went ashore sick, and we wee two or three hands short when we left Sydney; I think there were twenty-nine hands on board at this time, and thirty-two were her complement; the captain then went and called a Mr Pritchard, a Missionary on board, and called all hands aft; I sat down on the booby hatch, and took no notice; Pritchard asked them what was their grievance, and they said they were short handed and wanted some more hands; he said pooh pooh, you ought to have me on board of you, and I would shew you the gangway pretty often; the captain and Pritchard went on shore, and sent for some of the men, but none went; the captain used to sleep on board, and on the third day he took the boats on shore; some of the crew went on shore to see the captain and Pritchard, to know what they were going to do with the ship, and the captain said come on shore on Monday, and you'll know.  The mate, Mr Powell, came forward and said, we were wanted on shore, he asked me if I was going, and I said no, I had done nothing wrong, and would not go.  The mate took the people on shore, and half an hour after, the mate came on board and said the Captain wanted me; I said I would not go, and he said I had better go, or the natives would come and take me out of the ship; I told him before the natives should take me out of the ship I'd go, and I went with two boys and walked up to the church where the other men were; the captain and Pritchard were there; Pritchard asked me to do the same as the rest, to take a note for oil, and leave the ship; I said I had shipped in Sydney, and I wished to go back, and the captain went on board; I told Pritchard it was very hard to be turned out of the ship on an island like that after I had been so long in the employ; he asked me how long I was in the employ, and I told him three years, and he then wrote a note to the captain, which I gave to him; I asked him what he was turning me ashore for, and he said for refusing my duty; I told him I never refused to do my duty, and if I had done wrong I was ready to go to Sydney; the captain and Pritchard talked together in the pulpit of the church, and Pritchard turned round and said, men go with the natives and get something to eat, come back at four o'clock and I'll draw a document to satisfy the captain that you forfeit your wages; I went back at four o'clock, and the captain was not to be seen; the next morning I walked along the beach to see if I could get on board in a boat, and I saw the second mate, Mr Homes, who said the captain had ordered him not to let any one on board with him; I walked back and slept in a native's hut all night, and next morning I went to see the captain; the chief mate came on shore and took me on board to get my things; I tied them all up, and asked the mate to tell the captain I insisted to see him before I left the ship; the captain came up, and I asked him to look at my things before I left the ship; he said there is no occasion for that McIntyre; I told him to recollect he was turning me out of the ship against my will; he said there is enough of that, and went below; I did not then ask him to take me, I thought it was no use; I would have asked him twenty times sooner than stop on an island like that; I went on shore with the mate, Mr Powell; I think there were thirteen or fourteen left; I did not see the vessel go away; I walked round to see if I could get work at a schooner they were building; I came up after eight days stay in a schooner called the Raitea, belonging to the American Consul; they gave me my passage; when I was put on shore there were 800 barrels of oil, and I did not get my share; I signed no document; I tried for it at the Police, and Mr. Windeyer said we must go to arbitration.  Mr Cape chose one man, but the one I chose would not act; during the eight days I remained the natives were very civil; the other men were ashore with me, and I left them ashore when I came away.

By Mr Foster -- I swear the men never insisted that the captain should go into the Bay of Islands, that I know of; I went on shore at Warratonga without leave, other men went with me; we had no row in particular with the natives; I did attempt to strike at the mate on shore at Warratonga, and the captain interfered and sent me on board; the mate was drunk and fighting with the other mate; I swam on shore; I was not ordered to remain in the ship; neither I nor the rest of the crew, to my knowledge, insisted upon the captain going into Otaheite; I don't know what the other men did, they might have done it, I did not; the others complained that the water was bad, but I did not; I heard the men talking between decks about the water being bad; I know the men were ill, and I know before we went to Sunday Island, some of the men went aft and persuaded the captain to go into harbour.  Dr Brown came on board and examined the water; I don't know whether he examined the men; the captain gave orders to weight anchor, and to loose the fore-topsail; I did loose it; there was a man named Davis examined at the police office and he swore that I did not loose it; I was willing to do all I could; I could not do it myself, nor did I attempt to do it, as it was no use; I did not know the crew had determined not to hoist the fore-topsail; I don't know how many hands were on board then, I think twenty-nine were on board; we got some natives at Warratonga, but some of them were afterwards put on shore; there were some natives on board when we wished to hoist the fore-topsail, one man ran away at Sunday Island and another was put on shore sick; Pritchard was no Consul then; I have known him for the last nine years to be a missionary; I don't know whether he is Consul now; the vessel I came up in, belonged to Morriset, and he is American Consul; he was not present when we were examined by Pritchard; I don't know that Morrisett was present when we were examined; Marshall came up chief officer in the schooner I came in; I know Wilson, he was on board three or four times with the captain; Captain Stokes was captain of the schooner; the ship Maria was there at the time; I don't know the captain; I never heard the men threaten to throw him overboard; the second mate of the vessel went out again; I never heard any thing about it; I was desired to go ashore and I said I would not go; I know I had done nothing wrong; I refused to go on shore when first sent for, but I went on shore after; I heard a man who came on board in the boat, say, if I went on shore they would not let me on board again; I was frightened to go on shore on account of the natives; I had been there once before; the natives were armed with sticks and swords at the church; I never was afraid of a whale, I should not have refused to go after a whale; I don't know how many vessels were there; I know there were two or three vessels; the Maria and the Europa were there, and the schooner I came up in; I had left before the Conway arrived at Otaheite; I did not go to an attorney to get my wages when I arrived.  After the ship came in, I did get an attorney to go the Police Office; I believe it was the first thing I went to an attorney about was my wages; the owners offered to leave it to two people; the man I appointed was named Sawyer, who was upon shore the same as I was; he was not a shipmate of mine, but had been whaling himself; Captain Lawson was proposed by the other side; I don't know any man named John  Russell; I never offered to compromise this matter for £10 or £12; I was told at Otaheite by the missionary in the church, that I had forfeited my wages; I don't know that Captain Cape wanted to take some of the other men with him; I did not prevent their going; George McLean and William Hobbs remained and went round to the other side of the Island; I don't know that he wanted to take them; I don't know that the boats were taken from the Captain; I don't know that the crew were armed to prevent any one going on board.

By Mr. Justice Burton -- After I got my things, the mate said jump in the boat and I'll be after you; there were two men in the boat.

By Mr Foster - I don't know that Pritchett asked the men why they would not set sail when the Captain ordered them; I never took any part in what the others did; I was at my own station and ready to work.

By Mr Justice Burton - I was not told by the Captain to go into the boat when I went on shore; I was on board two or three times after, and I went ashore, but did not ask him to take me; I saw him ashore the day the ship sailed, and I did not speak to him.

His Honor said that the case did not hear the complexion that had been put upon it, and at present it was not a case of forcing a man on shore that came under the statute.

The Attorney General assented that the case was not supported as he had anticipated.

Mr Foster said that he had a certificate signed by several captains, and the American and British Consuls at Otaheite, which set forth that it was necessary for the safety of the ship that the seamen should be removed, as they did not think the vessel could be safely taken to Sydney with them.  Mr Foster added, that Captain Cape had done all that he could do with safety.  This was the mode prescribed by a clause of the Act, and the captain had taken the necessary precaution.

A discussion arose as to the application of certain clauses of the consolidated Merchant Seamens' Act, commonly called Sir James Graham's Act to the Colony, which had been before decided by the Court, in an application for a mandamus against the Sydney Police Magistrates, and the Attorney General said that he would proceed further with the case, to elicit what he could, in case any question might arise thereon.  He then called two witnesses, the third mate and one of the ship's boys, whose testimony only confirmed some parts of the prosecutor's testimony, at the close of which, His Honor said that the indictment was framed on the old Act, 9 Geo. IV. and the evidence did not support the indictment.  He then withdrew the information, and Mr Cape was discharged.

 

Notes

[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 37, State Records of New South Wales, 2/2437, p. 155.

[ 2]This report is reproduced as well as that of the Sydney Herald because of their different versions of the legal point at the end of each report.

Published by the Division of Law, Macquarie University