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![handle is hein.slavery/ssactsengr0479 and id is 1 raw text is: 140 THE ENCHANTRESS I HAGG. 398.
and which he was unable to do without submitting to this disvantageous alteration ;
but [393] his discontent with the treatment he had received travelled with him
during the outward voyage, and broke out in occasional deviations from his official
duty, and finally made his removal necessary. The second mate was substituted.
No alteration was made in the signed mariner's contract with reference to this
change of situation, but he continued with a second mate's pay affixed to his name,
and advantage is taken of that by the owner to deny his claim to anything beyond
that sum, than what depended on his own mere liberality-that is a pretension
which this Court will not support. His fair demand is the quantum meruit, estimated
according to the common usage ; and it is not only the fair legal demand, but that
for which the captain himself stipulated in the particular bargain.
This quantum meruit is differently estimated in the reports of the persons appealed
to. Mr. Somes, who is a shipowner, considers wages of £6 per month to a chief mate
for such a voyage to be very good pay ; while another witness who is described as
a captain in the same service, and to have arrived with a cargo of convicts at Van
Dieman's Land at the time the Providence was there, says, that he paid £6, 10s.
to his chief mate during the voyage, and he believes that to have been the medium
rate of wages to officers of that description upon such voyages at that time. The
counsel for the first mate has acted with great moderation in taking the sum of £6,
10s. per month. I should have decreed more, viz., £7, 10s. which the first mate had
received upon -the previous voyage; and I should have done this not only upon
that consideration, but likewise in consequence of the resistance given to a just
demand, and of the attempt [394] to fasten a bargain upon this man, which the
captain proves was never made, and which, if made, was highly improper. I should
also decree it on account of the length of time during which this man has been kept
out of the pay to which he is well entitled.
Here has also been an attempt to fix upon this person a charge of a very high
nature-a charge of contraband trading, which.is entirely disproved in the answers
to the interrogatories upon which alone the owner relied to support it. In my
judgment the owner has taken a very erroneous view on the whole of this case. The
ship is absent from England more than three years, and it is certainly an unfor-
tunate voyage-but why is it so ? Because the ship travels out of the articles, and
goes to Valparaiso, where dealings are entered into with a distressed Government
which cannot afford to pay for the engagements they have contracted. I shall
content myself with giving what is proposed for the monthly wages, being at the
rate of £6, 10s. per month, together with the full costs of the whole proceeding.
The Court decreed the wages to be paid at the rate of £6, 10s. per month, from
15th August 1821 to 4th November 1824, during the period of service as chief mate-
at £4 per month from 13th June 1821 to 14th August in the same year-and £5, 13s.
for board wages for four weeks and five days during which he was on board 4t Liver-
pool, subject to deduction for advances.
[395] ENCHANTRESS -(Killoch). July 6, 1825.-Violent assault and cruelty-
charge sustained.
This was a suit for damages, brought by a mariner on account of a violent assault,
by which his ribs had been broken, and he had been otherwise grievously injured.
The suit was brought against the master of the ship, who gave in a defensive allega-
tion, but had not examined any witnesses at all adequate to support his plea. Time
had been frequently prayed to examine the mate, whom the master had described
as his most important witness, but having omitted to secure his testimony while
he was on board a ship in the river Thames, for some weeks; and it not appearing
that there was much probability of his returning again to this country for some
time, the Court, upon a fresh application, refused to grant a further delay, and the
case being thus left without defence, Lord Stowell proceeded to give judgment on
it as follows :-
I think it is impossible for me to deliberate for any length of time, or with any
propriety, on the question between the parties, if it even was in a state to be legally
considered as a question. For what is its present state, under the proceedings which
have been suffered to take place ? Originally it was a complaint of most unmanly
and brutal cruelty exercised by a captain of a ship,-a man in the vigour of youth,
upon an old seaman, for a seaman of fifty may generally be considered an old man.](ViewImageLocal?handle=hein.slavery/ssactsengr0479&div=1&collection=&method=preview&ext=.png&size=3)