Fanny.

Navigating the Lower Saint Lawrence in the 19th Century.

Quebec Mercury #97. Tuesday, August 14, 1832.

	Court of Vice-Admiralty.
	On the 4th August, the case of William Edgar, a seaman belonging to the Fanny, Captain Bowser, promovent, was adduced, and argued, against the said Captain Bowser, impugnant, in the shape of an action of damages (which were laid at £200), for having shot at and wounded the said Edgar with a loaded pistol, on the 29th of June, on the high seas. To which a plea in justification was put in; first as to the general mutinous disposition of Edgar, and secondly as to three particular instances of such mutinous disposition. The best report of this case is to be found in the judgment delivered by Judge Kerr therein on the 8th instant, with the addition of such observations as, from an attentive minute of the arguments, and perusal of the evidence, may seem necessary for its full elucidation. Judge Kerr. "This is an action, brought by William Edgar, a seaman, against Thomas Bowser, master of the Fanny, to recover a compensation in damages for having, on the 29th of June, assaulted him with a loaded pistol, whereby the ball penetrated his left breast, and lodged in his shoulder blade. The master has negatively contested these allegations, and has, moreover, in a plea of justification, affirmed that on the evening of the 26th of June," (three days previous to the assault on Edgar), "he, (Edgar) committed an assault on Captain Bowser, whereby he was wounded; and besides, that Edgar's behaviour during the voyage was mutinous, lazy and disobedient." "In respect to the assault of Edgar, all the witnesses agree that it was committed by Captain Bowser, modo et forma^G, as set forth, so that the only question for the Court is, whether Captain Bowser has made out such a case as can avail him to offer it as an excuse for so aggravated an injury?" "It is pretended that on the passage from Belfast to Quebec, Edgar refused to do his duty on three several occasions; first, when the master and crew were engaged in saving articles from a wreck." (The Tartar, the articles from which have since become the object of an action for salvage, and which act of disobedience is solely alleged in the evidence of John Kelly, cook), "secondly, in the evening of the 25th of June, when the crew was engaged in 'bending' the foresail, not 'reefing'; on this occasion it appeared from the evidence, that the men employed having come down, without performing the duty enjoined, the captain himself, with some of the passengers, in all two men less than had before been employed, succeeded in bending the sail; but on this occasion it appeared also that Edgar had refused on account of his alleged sore legs. The third act of disobedience, is alleged to have been on the morning of the 29th of June, being the time when Captain Bowser discharged his pistol at the promovent. But these charges are answered by evidence that Edgar had been afflicted by sore legs arising from scurvy, and that this rendered him unable to perform his duty a great part of the voyage. It is difficult, perhaps impossible, to estimate the degree of corporal suffering endured by the promovent, or to say whether he was or was not in a state capable of performing the ordinary duties of a seaman." (On this subject, Thomas Finlay, seaman, swears that, to his knowledge, he was laid up for eight or nine days with sore legs; whilst John Finlay, the carpenter, says he was as able to do his duty as any man on board, and Dr. Tessier, the health officer who examined his legs after his arrival, states that they were afflicted with a spontaneous eruption, but he had no means of judging what may have been their previous state.) "However it is not difficult," the judge goes on, "to say that these instances of his refusal to obey his master's commands, could be no justification for the injury of which he complains. Nor does the alleged violence offered by Edgar three days previously, even were it established by proof, add much strength to the excuse for an assault in discharging a loaded pistol at the promovent's breast. I use the word, even were it established by proof hypothetically, because the matter is wrapped up in a great deal of mystery. It does indeed appear that Edgar, hearing that the captain had been in the forecastle, enquiring for him, said he would go into the cabin and ask what Captain Bowser wanted with him; that he took in his hand a mahogany cross-pin piece, and, in going down between ten and eleven o'clock at night, he addressed the master thus: "Captain, I understand you want me, sir", to which the captain answered that he did not. He then desired Edgar to go out of the cabin, and rising up at the same time to push him away. Edgar replied, "Yes, Sir, I'll go, but don't shove me." It also appears that they jostled each other, and then after this the captain came on deck, with a large cut over the left eye," (in consequence of which he was described as being very bloody and faint.) "Kelly, the cook, who does not appear to be on friendly terms with the promovent", (the ground of which, however, appears solely to be that, on one occasion, Edgar asked him for his dinner, and when told it was not ready, struck the cook,) "swears that, when standing at the hatchway, he saw the blow given, but he speaks to this effect after having first mentioned the jostling, so that he leaves us in much doubt as to the person who made the first assault, and the respectful language of Edgar to Captain Bowser, both on going into the cabin, and when the captain told him to begone, throw much doubt on the transaction, and induce me to believe, that Edgar took the cross-pin, not with the intention of acting offensively, but to use it as an instrument of defence against the violence of his captain," (to be implied from the expression used by the captain to Edgar, when he had shot him, and Edgar saying "O! Sir you have shot me," and when the captain, as proved by several witnesses, said, "I told you I would do it,") "and that in the scuffle, Bowser received the blow." (The learned Judge here does not seem to advert to the evidence of Daniel Cash, a passenger, who was in the forecastle when Edgar came down, and heard him say, 'I have left Bowser easy', and after arming himself with a carving knife and a carpenter's adze, added, "If he comes down here, I will have his life or he mine.") "However, admitting the assault to the full extent, as stated by the witness Kelly, I am yet to learn that this injury, grave as it is, could justify Captain Bowser, three days after it occurred, for firing a loaded pistol at the promovent's breast, when he was quietly lying in his hammock. If his death had actually ensued, there being a sufficient cooling time for passion to subside, and reason to interpose, in contemplation of law, the act would have been murder; nor can I conceive upon what principle of reason or law, there is here a compensatio injuriarum^G, as has been contended for." "The advocate of Captain Bowser, presuming it to be made out in evidence that Edgar had first assaulted his client, has cited the Consulado del Mare, or Consulat de la Mer, chapters 413, 414, 415 and 416, to show the manner in which was viewed, as early as the tenth and eleventh centuries, the offence of a mariner seeking a quarrel with his captain, or raising his hand against him; but it is to be regretted that Captain Bowser, in inflicting chastisement, did not refrain himself within the bounds", (or, as was observed by the counsel for the promovent, did not know his duty on his side, as pointed out by these laws,) "which these laws and modern usages provide and sanction." "I come now to the plea of mutiny, which, in the opinion of the Court, has in no degree, been established in evidence. The witnesses represent Edgar as a quiet and inoffensive man, not endeavouring to induce others of the crew to disobey the orders of the captain, and Kelly states that he was not the chief of those who refused to do duty, not so much in fault as the others. In truth, he manifests a quiescent and indolent temper, and not a seditious and turbulent spirit". "On the whole, I am of opinion that neither any, nor all, of the grounds alleged can operate as a defence to the action brought against Captain Bowser for so wanton and ferocious an assault. But in bringing my mind to consider the extent of compensation which ought to be awarded to the promovent, the Court cannot shut its eyes against that part of the testimony which shows Edgar's unwillingness to make any effort to perform his duty, whereby Captain Bowser was obliged to perform the work of an ordinary seaman," (and here, perhaps, that part of the testimony might have come in, whereby, by several witnesses, it was proved that, though Edgar could not, or did not, perform his duty on deck, in the day, he several times was known to leave the forecastle in the night, and amuse himself, and the passengers, by dancing,) "nor can it be overlooked that, whatever might have been Edgar's intention, he could not fail, by entering the cabin at an unseasonable hour, with an offensive weapon in his hand, to execute the displeasure of his captain, whom Edgar knew to be irritable and violent." "These considerations weigh upon my mind in assessing the damages. The promovent asks £200, but the court cannot think itself authorised to award a larger compensation that £40 currency, with costs." Mr. Usher, for the promovent. Messrs. Stuart and Black, for the impugnant. The quaint though perspicuous language in which these sections of the Consulat de la Mer is enunciated, render them worthy of preservation, particularly to those who make the study of the marine law, and of the old French, an object, and requires no apology to those who do not understand that language, so universal and necessary in this country. They are as follows: "413. Encore marinier qui cherchera querelle à son seigneur doit perdre la moitié de son loyer, et la robe qu'il aura dans le navire, et doit être renvoyé." "414. Si le marinier lève ses armes contre son seigneur, tous les autres lui doivent prendre, le 1ier, et le mettre en prison, et ensuite le mener à la seigneurie, et celui qui se refusera soit perdre sa robe, et son loyer, ou l'avoir qu'il aura porté dans le voyage." "415. Le marinier qui frappera avec colère son patron, étant parjure et traitre, il doit être pris en personne, et perdre tout ce qu'il a." "416. Le marinier est tenu d'être patient envers le patron du navire, s'il lui dit des vilenies, et s'il court dessus, il doit fuit à la proue, et se mettre le long de la chaine; si le seigneur y va, il doit fuir de l'autre côté;, et si là; il est atteint, en prenant des témoins, il peut se défendre, parce que le seigneur ne doit pas passer la chaine."

Posted:
Dec. 6, 1999.

Updated:
July 15, 2003.