(Inftance Court.) ROBINETT against THE SHIP EXETER. Dec. 10th, 1799. wages: Defence, defence not al THIS HIS was a case of a fuit for wages, &c. against the Suit of mate for fhip Exeter, on behalf of Robert Robinett, who that he had been had been hired as mate in the fervice of the fhip in mifconduct: Bombay by the captain, and was afterwards, in profe- Sufficiency of cution of the voyage to Europe, forcibly discharged by him, from the fervice of the said ship at the ifland of Columbo; on a charge of incapacity, drunkennefs, neglect, and disobedience of orders. The demand was for 1271. as the balance of wages and expences incurred in returning to Europe. JUDGMENT. Sir W. Scott. This is a fuit brought by an officer of a ship, in the East India fervice, for his wages; and it has been observed in the defence, that in this refpect, officers do not come before the Court with fo strong a title to the indulgence and favourable attention of the Court, as common mariners; who are, from their ignorance and helpless state, placed in a peculiar manner under the tender protection of the Court. But there are other grounds, on which officers are justly objects of equal attention, inafmuch as an injury done to their character is of wider extent, and is attended with confequences of a more ferious $ 3 lowed, on proof decreed, &c. of facts: Wages The EXETER. Dec. 10th, 1799. ferious nature; mariners, if diftreffed in one fervice, may easily obtain another, and a failor may remain a failor to the end of his days, as it is not ufual to be minute in the enquiry made into their characters, But if an officer is difcharged for infufficiency, it may not be eafy for him to procure another fituation; and he is in danger of lofing, not only his present footing, but more particularly those prospects of promotion, which depend in a great measure on the character, that has travelled along with him during his former employs, and has been the most valuable fruit of a life of fervice. These confiderations are fufficient to place officers also under the particular protection of the Court; at the fame time this must not be fo understood in either cafe, as if the Court would fhew fuch a blind indulgence, as fhould over-rule the real juftice of the cafe; it is only fuch an indulgence as the equitable confiderations of public utility require, which can feldom in fuch cases, any more than in others, be separated from particular justice. In this cafe the officer was hired in Bombay, to proceed in the service of the ship to London; there is no difference about the agreement or terms of service: but it is alledged in the defence against this demand, that the service was not performed; on the other fide it is faid, that he was at all times ready to difcharge his fervices till he was forcibly removed, which is to be confidered in law as equivalent to the difcharge; and on the part of the master, this act of removal is juftified. The question before the Court will be then, to decide whether the charges are of a fufficient nature to fupport this refusal, and whether they are fupported by by fufficient evidence. In the first place, I obferve there is no general incapacity fet up; fuch a charge is introduced into the depofition of Captain Whitford, indeed, but it makes no part of the plea. If a ge neral incapacity had been specially pleaded, and properly fupported by the depofitions of the mafter; this Court would find a difficulty in oppofing the prefumption, arifing from the opinion of a fuperior officer. If that had been pleaded in the allegation, it must have been ftrong evidence, that would have induced the Court to determine against fuch a testimony. But if that had been pleaded, Mr. Robinett would have had an opportunity of defending himfelf; and he might have called forward the judgment of the former master with whom he failed, and by whom he was recommended to Captain Whitford, as well as that of others who were acquainted with his talents; as that has not been done; as this charge of general incapacity has not been put in iffue in any manner, and confequently Mr. Robinett has had no notice to defend himself against it, I must leave it entirely out of confideration, and confine myself to the specific articles, charging him with drunkenness, neglect of duty, and disobedience. These are cer tainly offences of a high nature, fully fufficient to justify the discharge, if proved. In respect to the negligence, it would not be neceffary to prove, that it was wilful negligence; it would be fufficient if it appeared to amount to that habitual inattention to the ordinary duties of his station that might expose the fhip to danger; for the perfon in Robinett's ftation ftipulates against fuch negligence, Upon The EXETER. Dec. 10th, $799. Upon the matter of drunkenness, the Court will be no apologift for that; it is an offence peculiarly noxious on board a fhip, where the fober and vigilant attention of every man, and particularly of officers, is required. At the fame time the Court cannot entirely forget, that in a mode of life peculiarly exposed to fevere peril and exertion, and therefore admitting in feafons of repose something of indulgence and refreshment; that indulgence and refreshment is naturally enough fought by fuch perfons in groffer pleasures of that kind; and therefore that the proof of a single act of intemperance, committed in port, is no conclufive proof of disability for general maritime employment. Another rule would, I fear, difable many very useful men for the maritime fervice of their country. As to difobedience to lawful command, it is an offence of the groffest kind; the Court would be particularly attentive to preferve that fubordination and difcipline on board of fhip which is fo indifpenfably neceffary for the prefervation of the whole fervice, and of every perfon concerned in it. It would not, therefore, be a peremptory or harsh tone, or an overcharged manner in the exercise of authority, that will be ever held by this Court to justify resistance. It will not be fufficient that there has been a want of that perfonal attention and civility which usually takes place, on other occafions, and might be wished, generally, to attend the exercife of authority. The nature of the service requires, that those persons who engage in it fhould accommodate themselves to the circumstances attending it; and those circumftances are, not unfrequently, urgent, and create ftrong fenfations, which naturally find their way, in strong expref fions and violent demeanor. The perfons fubject to this fpecies of authority are not to be captious, or to take exception to a neglect of formal and ceremonious obfervances of behaviour; and on these grounds the Court would hold, that the charges of this defence are of a nature fufficient to justify difmiffal, if they are properly fubftantiated in evidence; although it might at the fame time be proved that lefs perfonal civility had been used, than would excuse something of an hesitation of obedience, in other modes of life. The next queftion will be, what is the evidence; and on this point, it is unfortunate that Mr. Whitford is the only witnefs examined on the part of the defence. At the utmost Mr. Whitford can only have become competent to give evidence in this cafe, by having become a bankrupt; and he may have expofed the property of his owners to danger, by not having taken the precaution to do, what ought always to be done, in a matter fo tender as the difcharge of an officer, -to call the attention of the paffengers and crew to the circumftances attending it, that the propriety of the act may be properly warranted, and vouched by as much evidence as poffible. This not having been done, Captain Whitford is the only witness on that fide; at any rate it must appear, that he would have an intereft to defend the propriety of his own conduct; if unopposed, the Court would be inclined to prefume in favour of authority, fuch being its proper and legal inclination; but opposed as he is, in this cafe, by two witneffes, who are not affected by any intereft, or otherwife liable to objection, it would be difficult to take his fingle evidence in opposition to their united teftimony. But the The EXETER. Dec. 10th, 1799. |