[maritime law – seal and fur trade - - breach of contract – work and labour   - recovery of wages – deficiency of provisions – breach of Articles –Campbell Island Macquarie Island ]

John Wood v. Robert Campbell

Court of Civil Jurisdiction

  Bent J.A.. , 15 and 20 January 1812

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1107-12 and 20.

15 January 1812, 5/1107-12

John Wood , Mariner                                        Plaintiff

                                    and

Robert Campbell Esquire who appears

By George Crossley his Agent               Defendant

Special writ in which the Plaintiff declareth that the defendant is indebted to the plaintiff in the sum of £500_0_0 _   Stg for a certain quantity of oil skins, spars, boat, coats, & Cedar due to him by a certain agreement between the plaintiff & defendant for his services & labour as a mariner and such in the employ of & fined by defendant.

There were counts for work & labour , goats sold & also the money counts_ Damages £750 ___.

Defendant by his agent aforesaid appears & discuss the cause of action as stated in the Writ   _ and also pleads a Set-off.

The plaintiff now exhibited a written statement of his case which is read ,   & in which he states that this action was brought to recover 1 st the 40 th   lay on share of a quantity of Dill, Seal Skins, & other substances all matters procured & brought to the Port at different times by the Perseverance & Mary Sally to the former of which Ships Plaintiff belonged & was second officer as by the articles of a Ship bearing date 30 th Sept 1809 in force 18 months_

2nd To recover wages for a certain time in which he continued in the employ of the defendant beyond the time agreed for_

3rdly .   To recover a compensation for a deficiency of provisions whilst in such employ _

4thly . To recover the sum of £100 _ being a penal sum in which the contracting partners were mutually bound in case of a breach of the articles of 30 th Sept 1809, by those Articles

The defendant admits that the Plaintiff entered into the service of the defendant on board the Perseverance in virtue of the above Articles _ and sailed in that ship as second officer on the 40 th lay to prosecute the intended voyage a few days after the date of the Articles _ & that he assisted in procuring a certain quantity of skins & oil_, viz 34,062 Seal skins,47 Ton & 147 Gallons of Elephant Oil, 33 Spars, of all which he is entitled to the 40 th lay and also to the like lay upon the sum of £350 being the profits of a voyage   performed by the Perseverance to Newcastle_.

It is admitted that the Perseverance sail on the 23 rd October 1809 that plaintiff sailed as second officer on board of her.   That from this time to 2nd October   1810 the ship procured only 827 skins_. There Perseverance return to Sydney in April 1810_.   Before April 1810 she discovered Campbell Island when she left part of her over.   John Wood was left at Campbell Island with other men_.   In the latter end of June or beginning of July she again sailed with supplies of provisions for the men on Campbell Island_.   On the passage there she discovered Macquarie Island _ Captain Hasselburgh / the master then landed the major part of the people he had on board in July, and did not proceed to Campbell Island but returned immediately to Sydney for fresh supplies of provisions & salt as there were great hopes of success at Macquarie Island the 2 nd   day of October 1810 _ previous to which the men landed in July at Macquarie Island had obtained 827 skins after landing the gang in October 1810 she sailed out for Campbell Island with suppliers & provisions and also to bring away the men & such oil as they had procured _.   In the harbour of Campbell Island on the 4 th Nov 1810 Capt Hasselburgh [?] his life. Robert Murray succeeded to the command of the vessel. Murray & Wood took on board all the men and such oil as they had procured viz 47 ..147 _ and returned to Sydney with wood & the others some time in January 1812 . Wood sailed in her as second Officer _. The first article was entered into between plaintiff & defendant_.   She at this time took down fresh supplies of provisions & salt _& brought from the island35740 _seal skins which had been procured jointly by the gang landed there in July 1810_& by the gang landed there in October 1810_.   The Ship also brought away the gang landed there in July 1810_.   The two gangs jointly procured altogether 56974 Skins _ . These are as follows,

2 [?] March 1811

Brought up from Macquarie Island

By the Eliz & Mary ___________________ _   }                       17.037

31 st Oct 1811    & pr Perseverance _________                        35.740

            Paid to Captn Wilkinson for a boat __               166

            Remaining on the Island___________               4.031

                                                                                                _____

                                                                                                56.974

By the articles of 30 th September 1809 __ 21 men in the whole were shipped on board the Perseverance _.

By the articles of 1 st Sept 1810 _ 15 men were then shipped on board the said vessel_.

The articles dated 30 th Sept 1809 _ produced & read_ The Articles dated 1 Sept 1810 produced & read _

Mr James Gordon called by Plaintiff, sworn says / I said in the Elizabeth & Mary on the 20 th October 1810 that vessel was chartered by Mr Hook general Agent for the defendant, to carry provisions & a gang of men to Macquarie Island . I was in command of her. I arrived at the Macquarie Island on the last day of December 1810_The Gang I carry down did not join the gang previously left them in the service of Mr Campbell. I did not take any provisions in the Elizabeth & Mary for those gangs.

Questioned by the defendant / In July last Captain Hasselburgh took down in the Perseverance for those gangs, 7000 or 8000 lbs of bread & as much pork. I have offered [?] the Plaintiff a day upon the [?] of the skins procured by the two gangs_ and upon the oil & other things_. I believe the plaintiff has actually received more than that lay would amount to_.

Questioned by the Court.   The men employed on board these ships have always a fixed return both at sea & when landed for the purposes of sealing.

The customary ration given to Mr Campbell seamen/ pounds of pork, pounds of bread or flour & one pound sugar a weekly _.   This ration is given as long as the provisions lasts _. A compensation is generally given in case of a deficiency_.   We have generally given ten shillings per week   in case of an active deficiency_ The entire of the skins could not have been brought within the 18 months. The fifteen men sent down by virtue of the second articles were of material assistance_. The men landed by virtue of the first articles could not have been procured the same quantity of skins in the same time _.

Miles Holding, sworn, says/ I am at present Master of the Brig Perseverance.   I was landed at Macquarie Island by that vessel on 18 th July 1810_. I was there first mate_. I was principal overseer of the gang that left on that Island . There are still remaining there 4031 skins procured by the gang landed in July & October 1810_.   I do not conceive that those skins could have been brought him before by the Perseverance.   At the time I took on board that vessel the 35,740 skins I was obliged to cut my cable & could not safely put back for the remainder. Had it not been for the deficiency of provisions the men would have been able to procure a greater quality of skins_.   Nine months the provisions were landed in July 1810 for eight men_ Sixteen men there were landed in October following I believe nine months provisions were landed with them.   We were out of provisions in the latter end of May 1811 _. I think that twelve men   with the entire quantity of provisions which were landed might have procured the same quantity of skins as the twenty four men on that quantity of provisions_.   I think so because in that case there would have been no deficiency of provisions among the twelve men.   After the provisions were pended a considerable quantity of the mens time was taken up in searching for food.   After the expiration of the 18 months I refused to discharge the plaintiff from the service of the vessel. I believe such discharge is necessary before he could be employed elsewhere. I never sailed under two articles, I have never known it_.   There were a sufficiency of skins on the Island to employ [??] gangs. I was overseer over the whole twenty forms.

Questioned by the defendant /   The two separate articles were read to the men.

Mr James Gordon again questioned by the Court, says I offered the Plaintiff discharge in November last.

Miles Holding   questioned by the Court, further says/ I believe all the skins viz 56974   with the exception of very few perhaps Fifty or Sixty were procured before the expiration of the Articles of 30 th Sept 1809 _ , but not delivered_. After that time several of them who signed that agreement said they would seal no longer_. The seals were getting very few_. There was no very natural deficiency until after the expiration of that article of Argument.

Anthony Kearns, sworn says / I was landed on the 2nd October 1810 at Macquarie Island and signed the first articles_.   The Party then on the Island objected to the New Party unless they were to be considered as one party.   Captain Hasselburgh said they were to be considered as one party: to be one gang.   He said he had the owners instructions to that effect.   I heard Mr Gordon also say when he arrived that they were to be considered as one gang.   Ned McCanol told him the men were one gang . Mr Gordon then made that supply, and added that they might thank him for making that addition to their gang.   We were not out of any provisions before the expiration of the first articles we were out of wet [?] provisions_.   We could have procured a considerable quantity of some skins had we not been out of wet provisions.

By the Journal kept by Miles Holding it appeared that the sugar & meat were expended on the 25 th March 1811.

Joseph Murray   sworn says/ I was one of the men landed at Campbells Island by the Perseverance.   I continued there for some months. We were out of provisions for three or four months_.

The defendant now states that the plaintiff is not entitled to his 40 th lay upon the whole quantity of skins procured by the two gangs, but only ponds are proportionable quantity procured by those who signed the first article of Agreements, viz 34062 skins, &c ___ and further states that the Plaintiff has been overpaid by the defendant to the amount of £ 50   or £60 _.

Mr Henry Kable , sworn says/ I have been much concerned as a merchant in the sealing trade. I have sent down in the same ship both at one time & at different times two separate gangs under two separate articles to the same island.   They have been put together to work as one gang.   In these cases the quantity of skins were always divided proportionably to the number of gangs_ and each man had his say upon the division allotted to the gang which he belonged.

Mr James Underwood sworn says/ I have been a good deal concerned as a Merchant in the Sealing trade.   I sent down to gangs under the separate articles of the Antipodes . The gangs join together_ one overseer was left in charge of both_.   They divided the number of skins they procured according to the number of men in each gang_ and each man had his lay upon the quantity of skins allotted to the gang to which he belonged.   I believe this to be always the custom_They are considered as if they belong to two different Merchants.

Mr Lord sworn says /   I have been a good deal concerned in the sealing trade. I have heard the whole of this case & never knew of any similar to it in my own concerns _

John Archer sworn says/ I have been clerk to Mr Kable for 11 or 12 years_.   I am well acquainted with the custom of sealing trade & settled a number of accounts with men employed therein.   I have understood it to be custom where two separate gangs are employed by separate articles in the same ship by the same owner, and form a    [?] together , they divide the skins procured proportionably between the two gangs & then calculate the respective lays upon each divided proportion.   We had once a case of that kind, & settled with the skin on that principle.

Mr James Gordon sworn says /   I made out the account now procured from Mr Campbell's books_.   It is an account of monies & goods furnished to the Plaintiff on account of his lay. The total is £ 358 . 19 . 7 .   The monies[ ?] and goods have actually been delivered to Wood to the best of my knowledge: they were not all delivered by me.   Except the three articles issued in the bill all the monies advanced to Wood were in approved bills_. I calculated the value of the lay due to Wood. I believe it to be accurate upon the principle on which it is calculated_.

The Case being here closed, the Court take time for consideration_& postpone giving judgement.

The Court hereupon adjourn until Friday at ten o Clock.

                                                By the Court.

                                                                        Ellis Bent J.A.

.

20 January 1812, 5/1107-20.

John Wood Mariner ________ Plaintiff

                        and

Robert Campbell Esquire &c     Defendant

For former proceedings in this Case see ante   Pl 12__

The Court having heard and maturely considered the Evidence produced as well by their Plaintiff as the Defendant now give ,

Judgement for the Plaintiff

Damages £1 6 ..19 ..9 ½    Costs £ 2..4..10