Hartley v Ponsonby


(1857) 7 E & B 872

Queen's Bench


Ponsonby was the captain of a ship called The Mobile; Hartley was a member of her crew of 36. The crew, by their articles, agreed to serve on board the ship 'on a voyage from Liverpool to Port Philip, from thence (if required) to any ports and places in the Pacific Ocean, Indian or China Seas, or wherein freight may offer, with liberty to call at a port for orders, and until her return to a final port of discharge in the United Kingdom: or for a term not to exceed three years.' Hartley's wages were £3 per month. While the ship was at Port Philip, 17 of the crew refused to work, and were sent to prison. Of the remaining 19, there were only four or five able seamen. Ponsonby proposed to sail for Bombay and, to induce the remaining crew to take the ship to Bombay, he promised to pay to some of them a sum in addition to their wages. He gave Hartley a written promise which said


'I promise to pay, in Liverpool, to Robert Hartley the sum of forty pounds sterling, provided he assist in taking ship Mobile from this port to Bombay with a crew of nineteen hands.'


When The Mobile arrived at Liverpool Ponsonby to pay the seamen more than the wages originally contracted for. Evidence was given as to the unfitness of so small a crew as 19 to navigate the ship.


The issue before the court was whether Hartley had provided any new consideration in return for the promise of the extra wages.


Coleridge J


... I understand the finding of the jury to be, that the ship was unseaworthy; and that, owing to the excessive labour which would be imposed, it was not reasonable to require the mariners to go to sea. If they were not bound to go, they were free to make a new contract: and the master was justified in hiring them on the best terms he could make. It may be that the plaintiff took advantage of his position to make a hard bargain; but there was no duress.


Crompton J


The jury have found that this was a free bargain. As regards public policy, it would be very dangerous to lay down that, under all circumstances and at any risk of life, seamen are bound to proceed on a voyage. The jury have found in this case (and, I think, upon the evidence, correctly,) that it was not reasonable to require the seamen to go on. Where, from a ship being short-handed, it would be unsafe for the seamen to go to sea, they become free to make any new contract that they like.