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England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Stilk v Myrick [1809] EWHC KB J58 (16th December 1809)
URL: http://www.bailii.org/ew/cases/EWHC/KB/1809/J58.html
Cite as: 170 ER 1168, [1809] EWHC KB J58

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JISCBAILII_CASE_CONTRACT
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Neutral Citation Number: [1809] EWHC KB J58
(1809) 170 ER 1168; KB

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

16th December 1809

B e f o r e :

Lord Ellenborough
____________________

Between:
Stilk
v.
Myrick

____________________

The Attorney-General and Espinasse for the plaintiff.
Garrow and Reader for the defendant.

____________________



    This was an action for seaman's wages, on a voyage from London to the Baltic and back.

    By the ship's articles, executed before the commencement of the voyage, the plaintiff was to be paid at the rate of 5 a month; and the principal question in the cause was, whether he was entitled to a higher rate of wages? In the course of the voyage two of the men deserted and the captain having in vain attempted to supply their places at Cronstadt, there entered into an agreement with the rest of the crew, that they should have the wages of the two who had deserted equally divided among them, if he could not procure two other hands at Gottenburgh. This was found impossible; and the ship was worked back to London by the plaintiff and eight more of the original crew, with whom the agreement had been made at Cronstadt.

    Garrow for the defendant insisted, that this agreement was contrary to public policy, and utterly void. In West India voyages, crews are often thinned greatly by death and desertion; and if a promise of advanced wages were valid, exorbitant claims would be set up on all such occasions. This ground was strongly taken by Lord Kenyon in Harris v. Watson, Peak. Cas. 72, where that learned Judge held, that no action would lie at the suit of a sailor on a promise of a captain to pay him extra wages, in consideration of his doing more than the ordinary share of duty in navigating the ship; and his Lordship said, that if such a promise could be enforced, sailors would in many cases suffer a ship to sink unless the captain would accede to any extravagant demand they might think proper to make.

    The Attorney-General, contra, distinguished this case from Harris v. Watson, as the agreement here was made on shore, when there was no danger or pressing emergency, and when the captain could not be supposed to be under any constraint or apprehension. The mariners were not to be permitted on any sudden danger to force concessions from the captain; but why should they be deprived of the compensation he voluntarily offers them in perfect security for their extra labour during the remainder of the voyage?

    Lord Ellenborough: I think Harris v. Watson was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all that they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty upon themselves, and their agreeing to do so might have been a sufficient consideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death; and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port. Therefore, without looking to the policy of this agreement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of 5 a month.

    Verdict accordingly.[1]

Note 1   But where a seaman performs some service beyond the scope of his original contract, the case is otherwise. Thus before the ransoming of ships was prohibited, a promise by the captain of a captured ship to pay monthly wages to one of the sailors, in order to induce him to become a hostage, was held binding on the owners, although they abandoned the ship and cargo.Yates v. Hall, 1 T. R. 73. A seaman at monthly wages, who is impressed or inters from a merchant ship into the royal navy during a voyage is not entitled to wages to the time of his quitting the ship, unless the voyage be completed. Anon. coram Lord Ellenborough, at Guildhall, December 11th 1806. Action for seaman's wages: The plaintiff entered on board the defendant's ship at Shields, and was to have the monthly wages of 6, 3s. The ship was bound to Gibraltar with a cargo of coals, and she arrived there in safety. She then sailed for Zante, where she was to take a cargo, with which she was to return to England. In the course of this voyage, the plaintiff was impressed; and before it was completed the ship was captured. The defendant had paid into Court the amount of the plaintiff's wages to Gibraltar; and the question was, whether anything more as due? On the part of the plaintiff, it was contended that by virtue of stat. 2 Geo. II. C. 36, s. 13, he was entitled to recover his wages from his leaving Gibraltar to the period of his being impressed. It is thereby enacted "that nothing in that Act contained shall extend, or be construed to extend, to debar any seaman or mariner belonging to any merchant ship or vessel, from entering or being entered into the service of his Majesty, his heirs &c. on board of any of his or their ships or vessels; nor shall such seaman or mariner for such entry forfeit the wages due to him during the term of his service in such merchant ship or vessel." And even before the passing of that statute, it was held by Holt, C. J. (Wiggins v. Ingleton, 2 Ld. Raym. 1211) that an impressed seaman is entitled to his wagespro tanto. It followed, that the plaintiff was entitled to payment at the time when he left the ship, and therefore that he could not be affected by the subsequent casualties of the voyage. But Lord Ellenborough held, that the plaintiff was not placed in a better situation than the other seamen; and was not entitled to any apportionment of wages for his service during a voyage which had not been completed.    [Back]



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URL: http://www.bailii.org/ew/cases/EWHC/KB/1809/J58.html