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

Solomon v. Bartlett [1841] NSWSupC 82

assault, civil - ship's master, assault by - passenger on ship

Supreme Court of New South Wales

August 1841

Source: Sydney Herald, 12 August 1841

SAMUEL NATHANIEL SOLOMON V. JOHN BARTLETT.

            This was an action for an assault, brought by the plaintiff through George Solomon, as his next friend: the damages to be laid at £1000.

            Mr. WINDEYER opened the pleadings.

            The SOLICITOR GENERAL stated the case.

            The evidence for the plaintiff proved the following facts:--

            The ship John Bartlett, of which the defendant was captain and owner, sailed from London in December last, and arrived in Sydney after a passage of about four or five months. On the 12th of February, while at sea, the plaintiff was on the forecastle of the ship, looking out with a telescope for a vessel which had passed the ship the day before, when the defendant from the poop called out with a loud voice to the plaintiff "come out of that you fellow;" the plaintiff did not seem to hear, and the defendant rushed forward, struck the plaintiff on the head with his fist, and beat, abused, and knocked him down, continuing the blows for some time, saying that "he did not care for the law, for that the defendant could only get £10 at the place they were going to, where the Judges, Magistrates, and all of them were convicts." At the time of the assault, the defendant called the plaintiff a d-d Jew, a d-d vagabond, and a d-d blackguard. The defendant was a very powerful man of about five and-thirty; the plaintiff was a slight young man of about eighteen or twenty; the defendant was represented as being a quarrelsome and violent person; the plaintiff was said to have been harmless, civil, and inoffensive during the passage. The plaintiff messed and was treated during the voyage as a cabin passenger, in every thing except in the use of wine, which was denied him by his father's arrangement before the sailing of the ship.

            The plaintiff attempted giving other evidence of the defendant's repeated ill treatment of him during the passage; but Mr. Justice Burton decided that, as the declaration only charged one assault, the plaintiff was restricted to it, and could give no evidence but with respect to it.

            On the cross-examination of the plaintiff's witnesses, it appeared, that he might have heard the defendant's call to him to leave the forecastle.

            The ATTORNEY GENERAL addressed the Jury for the defendant.

            On the part of the defendant, the de bene esse examination of the chief mate - who is absent from the Colony - was given in evidence. He presented that the plaintiff was habitually insubordinate: that he frequently stopped the ship's duty: that he used to say, that he would do whatever the defendant ordered him not to do; and that he would go wherever he was ordered not to go: that the defendant only slapped and pushed the plaintiff with his own fist, and that the plaintiff's language to the defendant was aggravating. It was also alleged on the part of the defendant, but not proved, that the plaintiff, though treated as a cabin passenger, was only an intermediate passenger.

            The SOLICITOR GENERAL addressed the Jury in reply for the plaintiff.

            Mr. JUSTICE BURTON, in charging the Jury, said, that happily cases of this kind were not often brought into Court; tho' unfortunately - considering the incompetency of the persons who sometimes commanded the ships sailing to this colony, as well as the exacting and the disagreeable dispositions of the persons who sailed in them as passengers, it was too much to be feared that cases of differences of this nature often occurred: however, they were to try this case upon its merits and by the evidence alone which had been offered to them on each side. After pointing out the principal parts of the evidence with respect to the assault, and dwelling upon the importance of establishing which of the parties was the first aggressor, the learned Judge said that though in times of duty the captain has a right to require his passengers to leave particular parts of the ship, so as to enable that duty to be discharged, yet at all other times a cabin passenger has a right to go on any part of the deck and rigging whenever he pleases, provided it does not impede the duty of the ship. His Honor noticed the unfavourable position in which the defendant's absence from this colony placed him in establishing his case, and recommended the jury to deliberate upon the evidence on each side, and to determine upon the whole case as they would wish to have others determine upon their own case, if in a similar position.

            The jury retired for about half and hour, and then found their verdict for the plaintiff for £250.

            Council for the plaintiff, the Solicitor-General and Mr. Windeyer; for the defendant, the Attorney-General. Attornies, - for the plaintiff, Smith; for the defendant, Nichols.

Published by the Division of Law, Macquarie University