R v Bush and others [1848] NSWSupC 62 (9 June 1848)

---

[gaol delivery - ship, revolt on - ship, power of master]

R. v. Bush and others

Supreme Court of New South Wales

Stephen C.J., 9 June 1848

Source: Sydney Morning Herald, 10 June 1848, in Supreme Court Collection, Vol. 2, p. 84-85

CENTRAL CRIMINAL COURT.

FRIDAY, JUNE 9.

BEFORE their Honors the three Judges.

GAOL DELIVERY.

William Bush, James Grey, William Godsoe, and Henry Whittall, convicted of a conspiracy to revolt on board the whaling barque Arabian, before his Honor the Chief Justice, were placed in the dock.

The CHIEF JUSTICE passed sentence as follows:---

William Bush, James Grey, William Godsoe, and Henry Whittall; --- You have been found guilty of conspiring together, being at the time seamen on board the British barque Arabian, in the high seas, in the prosecution of a whaling voyage, commenced from this port in January last, to put an end to that voyage, and compel the master of the vessel to release a fellow seaman from confinement, --- by refusing to do any duty whatever in the vessel, and at the same time announcing to the captain your determination not to do any such duty until your comrade was released. In fact, you all did accordingly refuse to do duty: and the captain being thus deprived of so large a proportion of his crew, immediately returned to Sydney.

Cases of this kind are unfortunately not of rare occurrence. Instances of insubordination in whaling vessels, have repeatedly been before this Court of late; sometimes by prosecutions for revolt, or endeavouring to make a revolt, at others for conspiring to put an end to the voyage, or to force the master to some line of conduct required by the men, by refusing to do duty, and the like. From such causes, it has appeared in evidence that (as in the present case and that of the nine sailors sentenced on Thursday last,) valuable enterprises have been defeated, and enormous losses sustained, to the injury not only of the owners but all concerned in the undertaking. The individuals, on the other hand, by whom so much mischief has been occasioned, have themselves suffered still more severely, by the total loss of all their share in the undertaking, and wages, if any, with perhaps a protracted imprisonment in the vessel, ending by superadded punishment here. We may, therefore, render an acceptable service to all parties interested in such a subject, by recapitulating the law which governs the relation of Master and Seaman, such as it will be found to have been laid down by learned writers and Judges, and on different occasions from this Bench. First, then, for the seaman's protection, a form of Articles (or agreement between him and the Master) is prescribed by law; and any agreement inconsistent with its provisions, is declared not to be binding on the seaman. But, having entered into valid articles, every seaman is bound to obey all his captain's lawful commands; he is to be diligent in his duty; and must conduct himself at all times, in an orderly manner. The breach of any of these duties, by mutiny, turbulence, or disobedience of orders, subjects the offender to personal restraint or correction. (See Serjeant Shee's edition of Lord Tenterden's work, p.172.) In the case of the Exeter , Lord Stowell observes --- "As to disobedience to a lawful command, it is an offence of the highest kind. The Court will be particularly attentive, to preserve that subordination and discipline on board of ship, which are so indispensably necessary for the preservation of the whole service, and of every person concerned in it." He then adds --- "A peremptory or harsh tone, or an overcharged manner in the exercise of authority, will never be held by this Court to justify resistance." (2 Rob. Adm, R. 261.) Lord Tenterden lays down the law thus. "The master has authority over all the mariners on board the ship; and it is their duty to obey his commands, in all lawful matters relating to the navigation of the ship, and the preservation of good order. In case of disobedience, or disorderly conduct, he may lawfully correct them in a reasonable manner; his authority in this respect being analagous to that of a parent over his child, or of a master over his apprentice or scholar. Such an authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board." (Shee's Abb. 177.) Seamen, however, are not left to the caprice, nor absolutely to the discretion of the master, irrespective of subsequent amenability to law, should he tyrannically or vexatiously exercise that power. Lord Tenterden adds --- "But it behoves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelty and oppression. The master may be called upon by action at law, to answer to a mariner who has been beaten or imprisoned by him, or by his order, in the course of the voyage; and, for the justification of his conduct, he should be able to show not only that there was a sufficient cause for chastisement, but also that the chastisement itself was reasonable and moderate; otherwise the mariner may recover damages proportionate to the injury received." In the case of the Agincourt, Lord Stowell speaks of the power of a master, in cases of gross misbehaviour, to inflict corporal punishment on a mariner, as one "Hardly to be disputed." (1 Hagg. Rep. 271.) He proceeds to lay down certain rules, however, for the restriction or due exercise of that right; to which it is to be desired that all masters of ships would pay attention. These are, first, that the punishment be with due moderation;---secondly, that in all cases which will admit of delay, there should be a formal inquiry, and that the seaman should be heard in his defence; and thirdly, that the master should consult with some of his officers before the decision. The same power in the master, with similar qualifications and rules, will be found recognised by Lord Chief Justice Tindale, in the case of Murray v. Moutrie, 6 C. and P. 471.

On the other hand, as is remarked by the learned writer already quoted, when citing the last case, it may happen that the very offence corrected by the Master, may have been caused or aggravated by his own misconduct or indiscretion. (See p. 180.) In all cases where this shall appear, the Court will immediately take care that the seaman, if convicted here of any offence springing from such a cause, shall suffer a proportionably light punishment. To do equal justice, all the circumstances must be taken into consideration. A mariner who has been goaded into turbulence, or irritated into disobedience of a vexatious order, or have been the victim of ill usage, by bad or insufficient provisions, or oppressive conduct of any kind, will not be visited with that condign punishment which is due to offences, the result only of his own bad or ungoverned passions, or of determined contempt for constituted authority. The law, however, it is to be clearly understood and remembered, must be vindicated. Let seamen trust to it, and not seek to take it into their own hands. If their commander shall misconduct himself, they will find a remedy in this Court. He is not merely liable to an action for damages, but (on all cases of violence) to prosecution criminally. But, while on board his vessel, he must be obeyed; or the seaman must abide the consequences. It cannot be, that the crew are to judge of the acts or orders of their commander, and then to act for themselves according to their own views. Decent expostulation with him may be proper; against respectful remonstrances on any fit occasion, no exception could really be taken. But, after all, he must for the time be the judge. No vessel could be navigated, no mercantile enterprise safely be undertaken, in any other state of things. Even the existence of real grievances, hard perhaps to be borne, (whatever degree of palliation their existence may afford, when the question of punishment comes to be considered,) will be no excuse for acts of resistance or insubordination. In the case of the King v. Hastings, 1 M.C.C.R.82, the Judges unanimously resolved that making, or endeavouring to make a revolt, was punishable as piracy, (under the statute of 11 and 12. W.3. c.7. s.9,) although the only object of the men was, in fact, to procure a redress of grievances --- and not to take the vessel, or commit any other a ct more strictly termed piracy. So, in the recent case of the Queen v. M'Gregor, for endeavouring to make a revolt on board the Esther, a South Sea whaler, Lord Abinger told the Jury, that the uniting in a common design to prevent the captain from putting a man in irons, and calling on others of the crew to assist, amounted in law to that crime. The man in question, it appears, had refused to do duty, on account of the insupportable heat of the sleeping place; of which all the crew had frequently complained. The captain, on the following day, ordered him to work; and he again refused. On this, the captain ordered him to be put in irons; when the prisoner, with others, interfered to prevent it; using threatening language, and running to a boat at the side, where arms were kept. Lord Abinger held, that the putting of the man in irons was justifiable, notwithstanding that his refusal to work proceeded from the cause stated; that is, a desire only to redress a grievance. (1 C. and K. 432.)

Such, then, was the law of the case.

His HONOR then briefly went through the facts of the case as detailed in evidence. He stated that the Judges were unanimous that the conduct of the captain throughout had not only been justifiable, but that he had acted rightly. Taking into consideration the recommendation of the jury towards Grey, Goodsoe, and Whittall, the sentence of the Court on these three prisoners would be four months imprisonment in Sydney Gaol; while that of Bush, whose conduct throughout appeared to be as bad as it was possible to be, was, that he should be imprisoned in the gaol of Parramatta for eighteen months.