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

Macdonald v. the Governor Bourke [1839] NSWSupC 15

Admiralty - ship's crew, wages - ship, arrest of - contempt, attachment for

Court of Vice Admiralty

Dowling J., 2 March 1839

Source: Sydney Herald, 4 March 1839[1] 

COURT OF VICE-ADMIRALTY.

Saturday. -- Before His Honor the Vice-Admiralty Judge.

O'Donnell and others v. the Governor Bourke. --  Mr. Windeyer moved for a monition, calling upon Joseph Hickey Grose to shew cause why an attachment should not be issued against him for a contempt.  It appeared, from the affidavit of Mr. D. Chambers, that on the 29th January, 1838; the ship Governor Bourke was arrested by the Acting Marshal on account of wages due to the seamen; and that, subsequently to the arrest, Grose purchased the ship from her then owners, and notwithstanding that he was aware of the claim, and that the ship was arrested, or about to be arrested, he sent her to sea out of the jurisdiction of the Court, and thereby abstracted her from the custody of the Marshal.  Subsequently Mr. Grose acknowledged that he had sent the ship to sea, but said he was indemnified for so doing by the former owner.  The claims of some of the promovents it appeared had been paid, but there were other claims which were not.  Monition granted, returnable on Friday.

 

Dowling J., 8 March 1839

Source: Sydney Herald, 11 March 1839

 

COURT OF VICE-ADMIRALTY.

Friday. -- Before His Honor the Judge.

The Governor Bourke. -- In this case a motion had been issued, calling upon Mr. J. H. Grose to show cause why an attachment should not be issued against him for removing the Governor Bourke out of the jurisdiction of the Court, after she had been attached.  Upon the motion of Mr. Foster, the monition was enlarged for a week.

 

Dowling J., 18 March 1839

Source: Sydney Herald, 20 March 1839

 

COURT OF VICE ADMIRALTY.

Monday, March 18. -- Before His Honor Sir James Dowling.

In the matter of the Governor Bourke. -- In this case a monition had been issued calling upon Mr. J. H. Grose to shew cause why an attachment should not be issued against him for contempt in removing the ship Governor Bourke from the jurisdiction of the Court, when she was about to be seized under process of the Court.  Mr. Foster now appeared to shew cause; the affidavit of Mr. Grose set forth, that at the time he sent the Governor Bourke to sea he did not know that she was about to be arrested, but that the agent of the ship when he purchased her told him that the claim of the promovents had been settled; and that since he so sent her she had returned, and that he had sold her to another party, who had again sent her to sea.  Under these circumstances Mr. Foster contended, that there was not the slightest reason for issuing an attachment against Mr. Grose.  Mr. Windeyer for the promovents submitted, that Mr. Grose having admitted that he knew about the suit at the time that he purchased the Governor Bourke, and before sending her to sea, it was his business to enquire in the proper office whether the action had been settled, and at any rate sufficient had been shewn to call on Mr. Grose to answer interrogatories.

His Honor took time to consider the point.

 

Dowling J., 22 March 1839

Source: Sydney Herald, 25 March 1839[2] 

 

COURT OF VICE ADMIRALTY.

Friday -- Before His Honor Sir James Dowling.

Patrick Macdonald and others v. the Governor Bourke.  His Honor said that this was a proceeding in rem against the ship Governor Bourke, for subtraction of wages.  The vessel was arrested in January 1838, pursuant to a warrant of arrest made by the Court, as appear by the marshal's return, filed on record. The ship was thus in the control of the Court, and there was nothing to show that the suit had been subducted, or the vessel legally released, but in fact, she was taken out of the jurisdiction of the Court, in contravention of the arrest.  No doubt this was the highest contempt of the Court, and it was charged that Mr. Grose was guilty of it; and on a former day he was cited to show cause why he should not be attached for his contempt, and the question which he (the Judge) had to consider was, whether there was a sufficient constat of facts to show that he was guilty.  The affidavits of Mr. Charles Chambers set forth, that immediately after the arrest, Mr. Grose purchased the ship from her former owners, although he knew of the promovents' suit, and that he afterwards sent her to sea without first obtaining an order from the Court; and that Mr. Grose afterwards told him that he was indemnified by the former owners.  This affidavit showed a prima facie case of contempt, and required to be distinctly and directly denied; and the question was, had Mr.Grose done so.  The first allegation in Mr. Chambers's affidavit was, that Mr. Grose purchased the ship immediately after her arrest, and how was this denied?  Mr. Grose did not say when he purchased her, but only that he became the purchaser, and that the bill of sale bore date in January 1839; this might be true as to the date of the bill of sale, but it would be consistent with the affidavit of Mr. Grose that the contract of sale was made at the time stated by Mr. Chambers.  The next a[l]legation in Mr. Chambers's affidavit was, that he purchased the ship knowing the claim of the promovents, and that she was arrested, or about to be arrested, and how had this been met?  Mr. Grose said that he did not know that she had been arrested, but not, that he did not know that she was about to be arrested; he admitted that he knew about the suit for the seamen's wages, and what did he do? he did not take proper steps to see that the claim was satisfied, but was told by the broker, the agent for the former owners that it ha[d] been settled; this part of the affidavit His Honor did not think was sufficiently answered to relive the defendant from a knowledge that the ship was in custody or about to be arrested; Mr. Grose admitted that he sent the vessel to sea, but he (the Judge) thought he should have done more than he did before doing so; he should have searched the register of the Court, or called upon the broker for some voucher to shew that the suit was settled.  As a merchant Mr. Grose must know the favor in which claims for seamen's wages are held by the Court; he must have known that seamen's claims for wages are considered before all others, for the same reasons that the last bottomry bond is preferred before any previous one, because it is the wages of the seaman or the money advanced on the last bottomry bond that brings a vessel to port.  The third allegation in Mr. Chambers' affidavit, that Mr. Grose told him that he was indemnified, was met by Mr. G. by a direct traverse, for he denied that he ever told Mr. chambers that he was indemnified, or that he was in fact.  If the case had rested on this point alone, he (the Judge) sitting as he did without the intervention of a Jury to judge of the credibility of a man according to his oral testimony, must have given credence to the last swearer and acted on his deposition, although one of the parties was an officer of the Court, and could have no interest in the matter; but he was not driven to this necessity, for the affidavit of Mr. Grose in other respects was not satisfactory, and there were points which must be enquired into.  Perhaps Mr. Grose had not received a formal indemnity, but there were probably clauses in the bill of sale guaranteeing quiet possession.  Mr. Grose emphatically denied that he intended any contempt of the Court; but if the necessary consequence of his acts was a contempt, the Court was bound by all the rules of law and common sense to consider it as such.  His Honor was of opinion that the affidavit of Mr. Grose was so unsatisfactory that he would order an attachment to issue, in order that Mr. Grose might be subjected to an examination by interrogatory, when he trusted that he would be able to purge himself of the contempt.  With respect to the argument used on a former day, of the length of time that had elapsed, he was not aware of anything that would remit a contempt by mere efflux of time.

 

Notes

[1] See also Australian, 5 March 1839.

[2] See also Sydney Gazette, 26 March 1839; Australian, 26 March 1839.

Published by the Division of Law, Macquarie University