Bark Jupiter

Navigating the Lower Saint Lawrence in the 19th Century.

Quebec Gazette #4821 06/07/1835 Page 3, Col. 3T.

	COURT OF VICE ADMIRALTY - QUEBEC.
	(COPY) On Saturday the sixth day of June, in the year of our Lord one thousand eight hundred and thirty-five, before the Honourable and Worshipful Francis Ward Primrose, Esquire, Deputy Judge and Commissary of the Vice-Admiralty Court for the Province of Lower Canada.

	Present, W. Powers, Registrar. The Bark Jupiter, Duncan Cromie, master. Action of John Bailes & others.
	Bradly prayed the Judge to pronounce that they had fully proved the contents of the summary petition given in and admitted in this case on behalf of John Bailes, Samuel Roberts and John Brown, his party, and to pronounce the wages set forth in the schedule annexed to the said summary petition to be due to his said party, and to condemn Duncan Comrie, the Master of the said bark, in such wages and in costs. Duval prayed the Judge to pronounce that Bradly had failed to proof of the said summary petition, and that he the said Duval had fully proved the contents of the allegation by him given, to dismiss Duncan Comrie, his said party, and the bail given on his behalf to answer the action from this suit, and from all further observance of justice therein. The Judge having heard the evidence, read and informed by counsel on both sides by interlocutory decree, pronounced that Bradly had sufficiently proved the contents of the summary petition given in and admitted on behalf of his party, and that the wages set forth in the schedule annexed thereto, and due to his said party, to wit - to the said John Bailes, Samuel Roberts and John Brown, and condemned the said Duncan Comrie, Duval's party, and the bail given on his behalf, to answer the action in such wages, to wit - in the sum of twenty eight pounds, four shillings and four pence halfpenny, sterling, and in costs.

	(Certified)	W. Power,
		Registrar.
13s 4d. paid

Received of R. McLenna, Esquire, the sum above mentioned of twenty eight pounds, four shillings and four pence halfpenny, sterling, in full of the judgment in this case of our wages and of all demands against the bark Jupiter, master and owners.

Quebec, 8th June 1835.
	(Signed)	John + Bailes, John Brown, Samuel Roberts.
(Signed) W. Bradly,
Promoter's Proctor.

Quebec Gazette #4814 13/07/1835.
	(Note: the following 150 lines relating to costs were not included in this transcription.)
	In the case of the Bark Jupiter.
	On behalf of the master, it was argued, that every contract not contrary to law or repugnant to good faith, justice or morals, was binding on the contracting parties, and that the execution thereof must be enforced by a court of justice: that the Statute of the Imperial Parliament required all agreements should express the voyage the seaman was bound to perform. The intention was obvious. It was to render definite and certain, the obligations of each of the contracting parties. In this case, the seamen agreed to go to Mobile, and if no freight or cargo could be procured at that port, then they were to sail for another port, where freight or cargo might be procured. What possible objection could be made to such an agreement? How could the seaman be injured by it? It was argued, the master might abuse the power thus given to him of sailing from one port to another before he returned to the ultimate port of discharge. This agreement, however, was of no weight. There is no power conferred, no contract subscribed, which may not be abused. The court is not to take into consideration what may be done, but what in reality has occurred. In this instance, not being able to get freight or cargo at Mobile, the master sailed to this port, without stopping at any other place. He had, therefore, strictly complied with the articles. The seamen prosecuting ought to show a legislative enactment, in express terms, in their favour, else the court could not annul the contract now produced. It must be observed the seamen did not pretend they had been deceived. They had signed willingly, and received wages. They could not at the same time demand the high wages given in consideration of the voyages to different ports, and the setting aside the contract in virtue of which these wages were due. The captain might have refused such high wages, had the men refused to sign the articles now produced.



	To the Editor of the Quebec Gazette.
	Sir, Having noticed in your paper of the 6th instant, an expert statement of a case lately decided in the Vice-Admiralty Court of this Province, which is calculated to create erroneous impressions, I think you will agree with me in the propriety of offering to the public the following true statement of the case, which I beg you will publish. Permit me to add, that the bills of costs were incorrectly published, owing either to erroneous copies having been sent you, or to typographical errors,

			I am, Sir, yours, &c.
			J.P. Bradley.
	Quebec, 8th July, 1835.

	___________________ Case of the Bark Jupiter.
	This case arose out of a deviation from the voyage contracted for, the promoters having signed articles to serve on a voyage "from Liverpool to Mobile, or any other port or ports in the United States of America or elsewhere, at the option of the master or consignee, as freight or cargo may offer, and back again to an ultimate port of discharge in the United Kingdom". The vessel went to Mobile, and while there was offered a cargo of cotton, which the master refused, as appears by the evidence in the case. Andrew Hoyle, second mate, (whose testimony is corroborated by the other witnesses), in his examination says "One cargo was offered, but the master would not accept it; it was a cargo of cotton." - "The master told me that the cargo was offered." - "The reason for refusing the cargo was, as he (the master) told me, the state of his health, that he wished to proceed to a cold climate, and that he intended to settle in Canada". That is was not the intention of the promoters to sign articles to come to Quebec is very evident, for they provided themselves, on leaving Liverpool, with very light clothing, such as is adapted to a warm climate; and it must have been well known to the master that it was not their intention, for it was only three weeks after leaving Mobile, when the ship was coming among the ice, that he informed the promoters that they were going to Quebec. When leaving Mobile, they were told the vessel was going to Savannah. The same witness adds, that when the promoters understood that the ship was coming to Quebec, they expressed their dissatisfaction, and stated "that they would not consent to it, saying that they had no clothes for such a voyage, and that they would not have signed articles in England, if they had known that they were to be brought to Quebec." - "The promoters were not provided with clothes sufficient to endure the cold which we experienced during three weeks, whilst the winds were generally northerly, with much snow and hail." Notwithstanding that "no grog allowed" appeared in large characters on the face of the articles, the master, taking advantage of their suffering from cold and in order to pocket part of their trifling wages, sold to promoters a quantity of brandy as a substitute for clothes, to keep them from perishing. William Williams' evidence "Deponent not having any other than very light clothes, could not have resisted the cold from Mobile to Quebec, were it not for some bottles of brandy, which he purchased from the master to keep him warm." Henry Sharp said, "I was forced to buy some bottles of brandy from the Captain, to cheer up my spirits and keep the heat in me". It is scarcely necessary to add, that the contract in the cause was "contrary to law" and "repugnant to good faith and justice"; contrary to law, inasmuch as the voyage was not definite, for the Statute is positive, and requires that the voyage or voyages to be performed should be expressed and defined. (It may be well here to quote a decision cited on behalf of promoters at the time of the argument. - Abbot, p. 464. "When the shipping articles were for a voyage from Baltimore to Curracoa and elsewhere, Judge Winchester held that those words, 'and elsewhere,' did not authorize a voyage from Baltimore to St. Domingo; the Act would be a nullity, if words of this nature should be construed to be a sufficient description of the voyage." - The word 'elsewhere' must therefore, be construed in this case as void, for uncertainty.) Repugnant to good faith, because the promoters were deceived, and it was not their intention to come to Quebec; repugnant to justice, because it would perpetuate the services of promoters as long as the other party chose to keep them, at much lower prices than they could obtain at the present, they having contracted at a season when wages were low. It is well known with what indifference seamen sign articles, taking for granted what is told them by the master or shipping agent, as was the case in the present instance, and without ever reading what they were contracting for, many of them, in fact, not knowing how to read. It has always been, and never will be the object of Courts of Justice, to protect the ignorant against the craft of the more learned; and in Abbott, p490, will be found the opinion of an eminent judge, who said; "that if, by the crafty subtilty of a merchant, the word had been unless instead of until, he should hold it void as against the seamen, whom the Court were bound to protect against their own thoughtlessness and inconsideration." The Court, on giving judgment in this case, delivered its opinion, (although not in the precise words) to the effect following: "That under the Act of Parliament regulating merchant service, it is incumbent that the voyage be stated, and that the words "or elsewhere" were too vague to be considered as allowing the master to go anywhere he pleased, and therefore must be rejected as forming no part of the contract, or considered as a mere application of the antecedent words, 'United States of America'; under any other construction, the Statute would be perfectly nugatory, both as respects the owners and the seamen." (In support of this view of the case, the Court here alluded to the case in Abbott, cited above.) "The words in the contract being in the disjunctive 'or' a doubt might exist whether, the ship having actually gone to Mobile, the master could take her to other ports of the United States before returning home; but giving the most liberal construction to the terms made use of in the articles, an extending the power to seek for a cargo or freight, the Court was of opinion that he was limited to the United States of America, and back to the United Kingdom. If it were otherwise, he might have gone to the East or West Indies, or South America, as well as come to Quebec. This view of the case was also fortified by the conduct of the parties, it having been proved that the seamen were only provided with necessaries for hot climates, and that on the departure of the ship from Mobile, it was concealed from them that they were coming to Quebec, which they did not discover till they were in the Gulf and perishing with cold, when they immediately remonstrated. They, however, did their duty on board the ship, and now sought for redress, to which, for the reasons stated, they were entitled. The master had attempted to prove by a letter from the ship's agents at Mobile, that a cargo could not be procured there; but this was not substantiated by legal evidence, and if it had, it would not, in the opinion of Court, have altered the case. The wages claimed were there pronounced for, with cost."

Posted:
January 2nd, 2000.

Updated:
July 15, 2003.