Case Facts
The claimant was a seaman employed under ship's articles executed before a voyage from London to the Baltic and back. Under those articles, he was to be paid at the rate of £5 per month. During the voyage, two members of the crew deserted. The captain attempted in vain to find replacements at Cronstadt. At Cronstadt, the captain entered into an agreement with the remaining crew — including the claimant and eight other original crew members — that they would receive the deserted sailors' wages equally divided amongst them, on the condition that he could not procure two other hands at Gottenburgh. It proved impossible to find replacements at Gottenburgh, and the ship was worked back to London by the claimant and eight more of the original crew. Upon returning to London, the defendant (the ship's master) refused to honour the promise of additional wages, and the claimant brought an action to recover the extra pay.
Counsel for the defendant, Garrow, argued that the agreement was contrary to public policy and utterly void, relying on Harris v Watson (1791) , in which it had been held that a sailor could not sue on a captain's promise of extra wages for doing more than his ordinary share of duty in navigating the ship. The rationale in that case was that to allow such actions would encourage sailors to hold ships to ransom by refusing to perform unless the captain acceded to extravagant demands. Counsel for the claimant, the Attorney-General, sought to distinguish Harris v Watson (1791) on the ground that the agreement in the present case had been made on shore, at a time when there was no immediate danger or pressing emergency and the captain could not be supposed to have been acting under any constraint or duress.
Held
The court held in favour of the defendant. The verdict was that the claimant could only recover at the rate of £5 per month — his original contractual rate — and that the captain's promise of additional wages was void for want of consideration.
Ratio Decidendi
The core legal principle established in this case is that performance of a pre-existing contractual duty cannot constitute valid consideration for a new promise of additional payment.
The reasoning was that before sailing from London, the seamen had already undertaken, by the terms of their original ship's articles, to do all they could under all the emergencies of the voyage. In effect, they had sold all their services until the voyage should be completed. The desertion of part of the crew was an emergency of the voyage in precisely the same manner as the death of crew members would be, and those who remained were already bound by the terms of their original contract to exert themselves to the utmost to bring the ship safely to her destined port. Because the remaining crew were only doing what they were already contractually obliged to do, they provided no fresh or additional consideration in exchange for the captain's promise of extra wages. The promise was therefore unenforceable.
Harris v Watson (1791) was held to have been rightly decided, but this case is notable for shifting the legal basis of that outcome. Whereas Harris v Watson (1791) had rested the decision on grounds of public policy — namely, the concern that sailors might otherwise coerce captains at moments of peril — the reasoning here was grounded instead in the absence of consideration. This reformulation placed the rule on more orthodox contractual foundations.
The case forms a cornerstone of the pre-existing duty rule in English contract law and must be read alongside later authorities. In Hartley v Ponsonby [1857], the court reached the opposite conclusion where so many sailors had deserted that the voyage had become extraordinarily hazardous; the remaining crew's agreement to continue in those drastically altered circumstances was held to constitute sufficient consideration, since they were undertaking something materially beyond the scope of their original obligation. Similarly, in Williams v Roffey Bros [1991], the Court of Appeal held that where one party to a contract promises additional payment to secure performance of an existing contractual duty, that promise may be enforceable if the promisor obtains a practical benefit from the arrangement — a development which has significantly qualified, though not overruled, the strict rule established here.
Obiter Dicta
In the course of the judgement, it was indicated that the outcome would have been different in two alternative scenarios. First, had the seamen been at liberty to quit the vessel at Cronstadt — that is, if they had been under no pre-existing contractual obligation to continue the voyage — their agreement to sail the ship home would have represented a fresh undertaking capable of supporting the captain's promise. Second, and more significantly, had the captain himself capriciously discharged the two men who were absent rather than their having deserted, the remaining crew might not have been compellable under their original articles to undertake the entirety of the additional workload. In that scenario, their agreement to do so could have constituted good consideration for the promise of advanced wages.
The case footnote also alludes to the principle that where a seaman performs some service wholly beyond the scope of his original contract, the result is otherwise.