This was a suit for �27 11s., being balance of wages claimed by James Donaldson, as a mariner, under ship's articles, for services in and on board the Velocity, from the Port of Sydney, on a trading voyage from thence to China and other places, and back to Sydney. The cause came before the Court on the 27th of last month, on libel, responsive allegations, and counter-pleas, and after hearing the evidence in support of these pleadings respectively, and Mr. Windeyer and Mr. Michie as advocates for the promovent, and Mr. Foster for the respondent, the Court reserved sentence, which was now delivered by

Sir JAMES DOWLING as follows:

Had the matter of this action, in Point of amount, been within the summary jurisdiction of Justices, under the salutary provisions of Sir James Graham's Act, 5 and 6 Wm. IV., C. 19, I should have thought that the plaintiff might have had an effectual remedy in the mode therein prescribed, and should have felt myself bound so to certify, to deprive him of the costs of coming to this expensive Court for redress. Fortunately, however, as the amount claimed, exceeds �20, the jurisdiction of justices is ousted, and therefore, prima facie the plaintiff has a right to maintain the conusance of this court of his action. But for this excess beyond the amount, restricted by the statute, I should have held this a fit case for summary adjudication, from the persuasion that more satisfactory justice would have been administered to the parties, not merely on the score of celerity, and economy, but from the circumstance, that in the inferior jurisdiction, the justices might examine both parties litigant, on oath, and their witnesses respectively, face to face, so as to arrive at the truth, without the cumbersome, dilatory, and prolix examination by written interrogatories in the Registrar's office, with the additional disadvantage, that the evidence of the parties is therein excluded. If the plaintiff had no other remedy in the law but to come to this court, perhaps, this proceeding would not have been open to observation ; but when it is notorious, that in the common law jurisdiction of the Supreme Court, he would have had effectual relief, at a comparatively trifling expense, the Court cannot but press regret (in the absence of any just reason assigned for the course taken), that he should have been advised to invoke the jurisdiction of this Court at the frightful expense which must be incurred in bringing so trifling a cause to hearing and adjudication. It may have been, that no defence was anticipated, and that the numerous responsive allegations of the defendants, have put the plaintiff to a length of proof; of necessity involving unusual expense; but still, the Court would have been gratified to have heard some good reason suggested for bringing this suit for the wages of a single seamen into the Vice Admiralty. It must be confessed, that if the Court had the power, it ought to discourage such suits, by denying costs, even in the event of success, on the ground, that the portal of another Court are open for a mode of trial more congenial to the spirit of the common law, and less fettered by the technical pleadings and formalities of a Court of Civil Law. None but maritime causes of importance, or such, in which the Admiralty jurisdiction alone, is the proper tribunal for adjudication, ought to find their way hither ; and it is to be hoped, that the intimation which the Court now throws out, will, have the effect of discouraging unfortunate seamen from involving themselves, and their employers in the harrassing delay and expense of such proceeding, without the assignation of some irresistible reason for not going elsewhere for justice. I should, however, regret to abridge the right of seamen, in important cases, to proceed in this Court against the hull of a vessel, which, by their meritorious exertions, has earned freight for the owners, at the exposure of life, and certainly to the discomforts and privations of a seafaring life. The seaman has no doubt a right to hold to the vessel for his lien for wages ; and he may not choose to risk a suit with a captain, or owner, by going, into a Court of Common Law, with the fearful pecuniary odds of such a contest, against him. I cannot however but regret, in the absence of any reason assigned, that a different course was not taken in this case, this being a colonial vessel, and her owners resident here.

With these preliminary observations (which I think the occasion calls for) I shall now address myself to the matter of the suit.

It appears that James Donaldson, on the 15th August, 1842, hired himself, and signed articles at the wages of �3 a month, to serve on board the Velocity as seaman on a trading voyage from Sydney to China, and other places, and back to Sydney. The ship, after taking in cargo, proceeded to sea, and arrived in China on the 15th October, and after partly discharging there, went to Manila, and thence to Singapore, and from thence to Swan River, where she arrived on the 12th May, 1843. At that port Donaldson was taken from on board by the civil authorities of Freemantle, at the instance of the Captain, and put into prison there, on a charge of mutinous conduct and refusing to do his duty, and (as alleged, without being duly convicted) was kept and detained in prison for seven weeks, and then put on board again and brought via Hobart Town to Sidney, about the 13th August, 1843, and then discharged, without being permitted to do any duty as a seaman, from the time he left Swan River until discharged. The ship having earned considerable freight, the libel sought to recover twelve a months' wages, from the 15th August, 1842, to the 15th August, 1843, amounting to �36, minus cash and goods received, and hospital dues, to the amount of �8 9s., leaving a balance of �27 11s.

The libel was met by counter allegations, containing numerous articles, alleging, that the plaintiff had by reason of disobedience of orders, breach of duty, and insolence to the Captain, and mutinous conduct, forfeited his wages. To these, the plaintiff put in counter pleas, traversing their truth. For the plaintiff, four witnesses were examined, and but one for the defendants. Three of those for the plaintiff, proved that up to the ship's arrival at Hongkong, in October, 1842, Donaldson had well and truly performed his duty as a seaman on board, without any fault whatever being found with him. At Hongkong the Captain shipped a second mate, named Starling, and from his arrival on board, he seemed to take a dislike to Donaldson, and had what is quaintly called in the evidence a " down " upon him ; manifesting itself by always setting him to do all the dirty jobs about the ship, which had been previously divided in turn amongst the other seamen. This conduct appeared to have irritated him, but still he obeyed orders, after grumbling and using offensive language.

The first specific article propounded in the defendant's responsive allegation, had reference to the alleged misconduct of the plaintiff, at Manila, on the 17th March, 1843. On that day the ship was taking in cargo, and Donaldson being in the hold, was throwing bags of coffee or sugar carelessly to those who were stowing them, when Starling told him to desist, as the bangs were bursting; upon which Donaldson jumped on the quarter-deck, and asked the mate who he was, and what (using a horrible expression) had he to do with it; he then went to Jefferson, the sailing master, who was aft on the skylight, and asked him what Starling was, or something to that effect; Jefferson told him to go to his duty, and he then began abusing him, and told him he knew " a ----- sight" more about him than what he thought ; Jefferson told him again, he had better go to his work quietly ; he then rolled off his shirt, and told him " if he said another word he would put him in a place where it would take him two or three years to recover, if he did at all." Captain Browning then ordered him to go to leis work, and he then put himself in a fighting posture, and challenged him to fight, and told him " he was a ------ old woman, and knew nothing about a ship ;" after giving a great deal more abuse to the captain he went below, and there stayed until the mate told him to leave off work.

The only witness in support of this (article, was Starling the mate. The sailing officer, Jefferson, being a spectator of his conduct was a competent witness, but no reason was assigned for his absence.

In support of the counter plea to this article three seamen were examined, and their version of the transaction was, that on the occasion of the loading at Manila the weather was very hot, and the men were working in the hold without their shirts, and had come up for a little air, when an altercation ensued between Donaldson and the mate. They denied that the Captain was on deck at the time, and that Donaldson had used any insulting language to him, or offered to fight him. It was admitted that Donaldson had asked who the second mate was, inasmuch as he was not regularly introduced to the crew as the mate at the time he was shipped at Hongkong.

The remaining articles comprised various acts of alleged insubordination, such as refusing to pull the captain aboard another vessel in harbour at Singapore - refusing at sea, with insolence, to splice the fore-sheet in a proper manner when ordered by the mate - insubordinate language at sea on another occasion when leaving the wheel - insolent language of the captain, but not to him when the ship was going into Swan River - when sent to repair the seizings of the rattlins at Swan River, cutting a block adrift, and breaking it on the deck - insisting in the same port, on going ashore in a boat which the captain had ordered to be sent, and threatening the mate with a knife.

These various articles were in some particulars flatly contradicted, and in others explained, by the same witnesses in support of the counter plea, in such a manner as much to mollify the aggravating matter of the mate's evidence.

It is true, that the plaintiff's witnesses were fellow mariners, and had a natural sympathy with him in giving the most favourable colour to his conduct. But making all due allowances for this qualifying circumstance, the Court is not in a condition to regard their evidence as worthless, opposed as it is to the solitary testimony of the mate, to whose irritating conduct they ascribed that departure from civility, respectful obedience, and willingness in the performance of ship's duty which is required in the merchant service.

It is conceded on all hands, that up to the arrival of the mate on board, two months after leaving Sydney, this man's conduct was blameless. The change which came over him, has been ascribed to petty annoyances inflicted upon him by the mate, especially in ordering him to do all the " pig jobs" on board, which, up to the time of his joining had been performed, in common, by the whole crew.

Such conduct (which I am now bound to believe) was well calculated to throw even the meekest person a little off his guard; and although it may be true, that this man has indulged in language, which, would be grossly offensive elsewhere, and even at sea descry deserving the severest reprehensions, and even moderate personal chastisement, [inflicted after the solemnities, and with the temper proper to be observed on such occasions] ; yet, upon an issue whether a seaman is to forfeit the whole of his wages, it behoves a Court of Justice, to look at all the surrounding circumstances which may have betrayed him into ill temper, and disrespect towards a subordinate officer.

Lord Stowell, in the case of Robinett v. ship Exeter, 2 Rob. Ad. Rep. 261, has - in that masterly manner, which distinguishes all the decisions of that eminent Judge - thus expressed himself, in a suit for wades, defended on the ground of disobedience of orders:-

" As to disobedience of lawful command, it is an offence of the grossest kind, and the Court would be particularly attentive to preserve that subordination and discipline on board of ship, which is so indispensably necessary for the preservation of the whole service, and of every person concerned in it. It would not, therefore, be a peremptory, or harsh tone, or an overcharged manner, in the exercise of authority, that will be ever held by this Court to justify resistance. It will not be sufficient that there has been a want of that personal attention and civility which usually takes place on other occasions, and might be wished generally to attend the exercise of authority.

The nature of the service requires, that those who engage in it, should accommodate themselves to the circumstances attending it, and those circumstances are not unfrequently urgent, and create strong sensations which naturally find their way in strong expressions and insolent demeanor. The persons subject to this species of authority are not to be captious, or to take exception to a neglect of formal ceremonies or observances of behaviour."

In that case there were no acts of hardship or injustice imposed upon the individual. Here it is prominently averred in the evidence, that the commencement of this man's imputed misconduct, arose from some dislike the mate took to him on joining the ship, indicated by imposing the whole of the dirty work of the vessel It does not appear that this was with the sanction, or even knowledge of the master, who stood in loco parentis to the crew, and bound to prevent, if possible, the supposed petty oppressions of his subordinate officers. To these have been ascribed the falling off of this man from. that strict passive obedience, both in language and actings, which even a rough seaman is expected to observe on board ship. In this Court, however, when called upon to dispense justice, under all the circumstances of a case, the law of nature is not to be lost sight of; for if a man, in this station of life, be goaded beyond endurance, by petty annoyances and unnecessary exactions, savouring of injustice, from an officer armed with a little brief authority, a large allowance must be made for human infirmity, short only of excuse.

The difficulty which the Court has to deal with in this case is, that if there be really any well founded ground of forfeiture it is not made out by sufficient evidence. The rule of the civil law requires two witnesses to the facts alleged, or one, with other circumstances, amounting to a second witness. Here the whole of the responsive allegations, rest upon the unsupported evidence of Mr. Starling, the mate, who stands in the, invidious position of being the accuser of this man, and who is said to have been the cause of his aberration from previous good conduct.

Now, his evidence is not confirmed by Mr. Jefferson, the sailing officer, who might have been called, but was not; nor by any other independent circumstances amounting to the testimony of another witness ; and he is contradicted by three other witnesses, who take off much of the colour in those parts of his statements which may be taken to be true, and deny the truth of others, which go to the question of forfeiture.

There is one part of the case which remains obscure for want of sufficient evidence. I have looked for it in vain. It appears that in fact, this man was taken out of the ship at Freemantle and confined in the gaol fox seven weeks, and then returned to the vessel. If he was duly convicted of any offence known to the law the evidence produced. at the hearing was silent upon it. From that evidence it does appear, however, that on the day when Donaldson persisted in going ashore at Swan River, the captain lodged an information against him before a magistrate at Freemantle, and in consequence he was brought ashore by a constable under warrant. It is sworn that before the Magistrate, Donaldson prayed to be allowed to call witnesses in his defence to contradict Mr. Starling, which the Magistrate said he would readily great upon his undertaking to pay the expenses of their attendance, and said he should have them called the next day; whereupon, the captain said he could not attend the next day, as he had some business at Perth to settle. The Magistrate then said, the mate would do just as well if he attended, when the captain said " he wished Donaldson to be put in custody till the ship was ready to sail, as he was a dangerous character, and his (the captain's) life was in danger whilst he remained on board, and that when the ship sailed he would take him to Sydney and prosecute him there." Accordingly, he appears to have been sent to prison (under what lawful authority was not proved), and there kept till the ship was about to sail, and was then returned on board. No law was cited for this proceeding It was said in evidence, that the captain wished to leave him behind, but was informed that there was a local law in Swan River which compelled him to take him to take him on. It does not appear that on arrival in Sydney he took any steps to prosecute, in pursuance of his declared intention, but merely discharged him without paying his wages. This is a circumstance which has received no explanation. For any thing that appears to the contrary, it would seem, that if the Captain had any just cause for leaving the plaintiff behind, on the ground that he was a dangerous character, and that his (the Captain's) life was in jeopardy, the 41st section of Sir James Graham's Act, 5 and 6 W. IV., c. 19, would have allowed him to take order for that purpose, by applying for the written sanction of the authorities at Freemantle, in the manner therein prescribed. There may be a local law on this subject at Swan River, applicable to vessels belonging to that port, but Sir James Graham's Act applies even to such vessels, unless that settlement possesses (according to the 54th section) a Legislative Assembly. But whether or not, there has been nothing shown which would have prevented the operation of the Act, if the Captain had been minded to pursue the remedy therein pointed out.

In the absence, therefore, of any law upon the subject, the Court is bound to regard the detention of this man in gaol at the instance of the Captain for a period of seven weeks, as a dispensation of his services, for that time ; and as he was ready and willing to perform duty during the remainder of the voyage he cannot be regarded as having forfeited his wages.

Most undoubtedly if the case stated in the responsive allegations had been satisfactorily made out, I am not prepared to say, that the Court could give sentence in the plaintiff's favour. But weak as the defence is in proof, and countervailed as that proof is, by the evidence of three other witnesses, I am bound to decree, that this man has not forfeited his wages for the causes assigned. Had he been guilty of disobedience of orders or neglect of duty, the 8th section of the 5 and G William IV., c. 19, points out a specific mode of punishment, which appears not to have been pursued, nor is there any evidence upon which I can act, which is to deprive him of wages on the ground of mutinous conduct. He appears to have suffered seven weeks' imprisonment for causes not satisfactorily explained in evidence; but assuming that he has invoked this severity for conduct [not strictly subjecting him to a defined punishment bylaw], it may be taken as a circumstance in this suit, entitling his claim for wages to compassionate consideration. I do not think that the fact of the captain having employed another seaman in his stead ought to make any difference.

On the whole, therefore, under the circumstances thus considered, this Court doth pronounce, " that John Williams, proctor for the defendant, has failed in proof of the allegations given in, and admitted in this case, in behalf of his party; and that John Dillon, proctor for the promovent, has sufficiently proved the contents of the summary petition given in and admitted in this cause on behalf of his party, and that the wages set forth in the schedule annexed thereto, are due to such last mentioned proctor's party;" and I do condemn John Williams's party, and the bail given on his behalf, to answer this action in such wages and costs ; and at the petition of the said John Dillon, I decree a monition against him for payment thereof, within fourteen days from the date of such monition.

SG & SGTL P 60 - 11 May 44

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