Decisions of the Nineteenth Century Tasmanian Superior Courts

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania

[assault, endangered plaintiff's life – ship's captain, assault on seaman]

Burton v. DRISCOLL

Supreme Court of Van Diemen's Land

Pedder C.J., 15 May 1834

Source: Colonial Times, 20 May 1834

Mr. Horne for the plaintiff; Mr. Gellibrand for the defendant.

Mr. Horne opened the pleadings. - This is an action brought by my client, who in July last was a seaman on board the ship Lonach, to receive compensation for a violent assault committed upon him by the defendant, who was captain of the vessel. The assault complained of, in the opinion of the ship's company, was so severe, as actually to endanger the plaintiff's life. I know not what defence may be set up to this action, except it be the usual one of insubordination. Your Honor and the assessors are aware, that when captains have their men upon “blue water,” as it is called, they are frequently guilty of the most outrageous freaks. The plaintiff, in this action, was on the 20th of July last, knocked down upon the deck, and griped violently by the throat - he was also kicked by the captain. In consequence of the injuries he received upon that occasion, the plaintiff was for some time under the doctor's hands. Mr. Horne then called the following witnesses:-

David Laing examined. - Was cook on board the ship Lonach, in July last; Mr. DRISCOLL was captain. Remembers a dispute took place on the 20th of July last; the plaintiff was well respected on board. On the 20th of July last; witness was drawing water on the half deck; the chief mate and second mate came out of the cuddy, and as soon as plaintiff came from the half-deck, they seized him and threw him on a gun; and held him there some time. The captain came out with a brace of pistols; he dropped the pistols, and laid hold of Burton by the neckerchief with one hand, and punched him in the face with the other; he punched him until the blood came from his nose; the captain also kicked him. Some one then ran to the forecastle, saying, that the captain was going to throw him overboard. Both the plaintiff and a passenger called out murder. He was afterwards put in irons by the captain's order. The plaintiff was confined to his bed for some time afterwards, and was under the doctor's hands; his irons were struck off the same evening they were put on; he remained unfit for duty upwards of a week. The plaintiff spit up a good deal of blood while confined to his bed.

Cross-examined. - The assault took place on the 20th of July, at dinner time; does not know that the plaintiff had any business in the second cabin; does not know whether the plaintiff was on watch at the time.

Philip Thomas Smith, Esq. examined by Mr. Horne. - Was a passenger on board the ship Lonach, in July last. Burton had been drunk in the early part of the day. The captain desired him to go to his berth, he did so, but came out again soon after. The captain desired him a second time to go to his berth; the cuddy people went to dinner immediately afterwards. Towards the close of the dinner, the captain observed Burton coming up the second cabin ladder. He said, “there is Burton again,” and immediately got up from table and rushed out, when a violent scuffle ensued, in the course of which, the captain and plaintiff both fell. The captain at last overcame him, and seized him by the throat - at the same moment, the two mates came out of the cabin, and prevented his struggling further with the captain. The captain then loosed his hold of the plaintiff's throat; the crew at the same moment came aft in a body; did not observe the captain strike the plaintiff. The crew remonstrated in a mutinous manner with the captain, saying, Burton should not be ill-used. The captain then went for his pistols, and threatened to shoot the first man who hesitated to go forward. In the mean time, the mates carried Burton to the poop, and put him in irons.

By His Honor - The captain griped the man very hard by the throat; he appeared like a man strangled. The man cried out, but could not distinguish what he said. The seizure was not a mullitor manus.

Cross-examined. - An order had been given to the sailors not to go to the second cabin, except on business; thinks the plaintiff would not have resisted, except violence had been used by the captain.

William Ward examined. - Was a passenger on board the Lonach in July last. The rest of this witness's evidence corroborated that of the preceding witness, except that in his cross-examination, he swore he saw the plaintiff two hours before the assault complained of was committed, and he was perfectly sober.

Joseph Bothwell examined. - This witness also corroborated Mr. Smith's evidence, denying however, that the plaintiff was drunk.

Henry Lewis examined. - Was fourth officer on board the ship Lonach in July last. Burton, the plaintiff, washed for witness; plaintiff took some of witnesses clothes which he had washed into his berth; witness's berth was in the second cabin. The quarrel arose between the plaintiff and the captain immediately afterwards.

This closed the case for the plaintiff.

Mr. Gellibrand addressed the Court, dwelling principally on the fact, that the defendant had ordered the plaintiff when drunk to his berth, and that in despite of the captain's orders, he would appear on the deck. There is not, said the learned gentleman, one captain or one man in a hundred, but what with such provocation would have done the same thing.

His Honor shortly addressed the Assessors, when a verdict for the plaintiff was returned, Damages £20.