Whale Fisheries Act 1840 (SA)

ANNO TERTIO

8 0. XI.

: k~ ACT for the Reglrlntion n~rd Protccrio~t o/ the IVlrclle kSh,,,*iv.~.

' HE&AS various Fishing Stations have been established in or near

to several of the Tnlets or Bays of this Province for the purpose of Idling and taking Whales and a considerable number of Vcsscls and Boats are engaged in such Fishery therein and also on the High Seas: ,%rlcl

whereas disputes often arise as to the propxty in fish when struck by several

harpo~ners and also respecting the settlement of the accounts of the persons engaged in the said ltisheries: And whereas it is expedient that tor affording encouragement to the said Fisheries the rights of the several persons cllg,.a$

therein shoulil he better defined and a summary rcmecip be given for thc punishment of misconduct on the part of the nien engaged in such Fisheriei

and also for protecting them in their rights:

BE IT T ~ I E R ~ F O R E EXACTED by His h x l l e n c y I,icutenznt-Colonel Gcorxr;

Gaw~ert Knight of the Royal Hanovcrian Guelphic Orcler Governor ancl Commander-in-Chief of Her hlajcsty's Province of Suuth Austrdi;l Ly ancl with the advice and consent of the Le,gislntiw Council thereof ??lilt aftcr the

passing of this act in every case where a whale shall be struck in any rivcr L:,) L" ( I ~ ' ~: d i.

or inlet of this Province or on the high seas within twenty miles of f l ~ c i l ~ u l c c ~ r ~ ~ ~ ~ ! ~ ~ ~ ,

with a harpoon or other instrument used in the liil;iqy or t a k i n ~ of v l l: r l ~ ~ i . r1t i l l

the following shall be the rules for deciding on the propcrtp in nilp -. ~ ~ l l fi.,lr. ~ I - ~ ~ P - ~: ~ ~

so struck (that is to say) First--Where the harpoon or inatrnultirlt $11 ,I1

remain in the fish so struck and n linc ant1 h a t slmll Lc at tacl i~.~l t li.:r:tc:

and continue in the power of the strilior or hcaclsman such whalc s ! l ~ i l 1::

deemacl a fast fish and every harpoon or instrunwnt struck Ly; tnj o;ltL%;

person shall in such case bc consiclererl a frierlcIly I m p o n ancl tllc 1i.11 sluli

be tht? propcrty onIy of the first striker or hendsruan. Sccontl l~ - 1i1 r,::

the line affixed to the first harpoon or other instrunicnt so bt;.~tcl: 311 111 hw..k

or the liuc attnched thereto shall not lrc in t l lo !,cinc3r of t h ~ trilcc.1 1, ~t the

harpoon or instrument shall ncvcr~ll~lc~s rc~mi1i:1 f: , i t i n t ! f l. i ? l ~ t !~,*n t'rc li.*Ii

takeu or killed b j a n y scco id or. srI,scqtwnt I, ".i,ffi~!i 'E1,'!1 1, ~. [:I, . jr:ir~i

I''op1 L j

p r o p r i ~ of tlw fir31 and second or subscpont striker in e nnl pro ortiona.

shall lwconrr t1isenyayod fro111 the fish t h m the fish shall be considered a	I'hlrc\!y--If the first iron or I~nrpoon so struck aa aforcsair 9 shall 6 rcak or
loose fish,

p'r'O'r *rttOy-

ing er cut tieg any	It. And bc i t furtller ennctcrl that if after any harpoon shall be &truck into a ~vhillc any pcrson shall tvilftllly cut or dcstro any lint attachcd to any such harpoon u-hilst the same slinll remain in m c E whale in ordcl to prevent the strilicr of such liarpoon fiotn killing or takinm or hnving any power over such fish the praon so ofhndnding shall forfeit and pay a sum of not less than
horpoatl ]inc,
ten pounds nor morc than one hundred poundr. ..

Arkler to be in 111. And ire i t hrthcr enacted that articles of apmecment between the

writing.	person or persons proridinn any ~esse l boat or n~aterials engaged or to be cng:ngcd in thc fislleries an f the several persona eng?ged or to be bp him or them engaged therein sllall after the assing of thls act be in vr~t ing and
siglied by the parties to br? chargcd t crewith and Ina F, l c entered into in
the form or to the cffcct of the forill in the schedule to t lis act annexed. f .

B r e d of such IV. And be i t further enacted that in case any person having signed any

8rtic'cs ptrnishr- such articles binding himself to any duty or service in the whale fishery	ble by a Juatlce	of	the Peace,	shall during the period thereby prescribed for his service under such articles absent himself from his dnty or refuse or neglect to obey any lawfid command given to him or shall otherwise inisconcluct himself or refuse or neglect to enter into the scrvice' for which he shall have contracted or shall during the continuance of his intended term of service hire himself out to any other enlploymcnt contrary to the true intent and meaning of the said articles it shall be lawful for the person or persons thereby aggrieved (upon col~rplaint against the party so offencling made on oath before any Resident RIagistrate or two Justiccs of the Peace) to cause such party to be sulnmoncit to 31) car lcforc such Resident Magistrate Justiccs or any other t ~ o Justices of t 1 c Pcacc who are respectirely hereh authorised to enquire	ancl dcterminc touching the liinttcrs so coniplnined o r in a summary manner	and to exmninc on oath or afiirnlation the wit~lcss or witnesses produced
concerning the same and in case any such Resident Magistrntc or Justicer
shall convict the party so conlylclincd against of any offence so chargcd then they shall have power in their discretion to award not only a forfciture of any wages or lay or lays or any part tl~errof then or thereafter payable or
deliverable under the said articles but also n fine of not less tlmn forty shillings nor more than fortp pounds for such oflwcc or (if ther shall see fit) imprisonnmit with hard labour for any period not esccecling sis calendar
xnonths at thcir discrotion. \

V. -4nd \)c it furtllcr enacted that i f nny pcrson s h l l during thc con-

Prrror~s employ-

itlg scznlcIl rn tint~mcc of thc tcrm of scrvice co~itrnctcd tor in or 1)y any such articlcr

*iol~tion of s d l ]ill~\\.i~lglg cnqdoy or rctain or assist in elnploying contrary to the true intent

wticlcr;	R I ~nrnning of such srticlcs any prrson \v110 slrbll Ilaw by such artideo ~ bound liilnsclf to thc performance of airy scnico still u~ipcrfornlcd the person so cm h y i n g or retaining or nssihtiirg in e~r,plojing sl~nll fcv every
such oKcncc orfi.it and pay a penalty or sum of 1 not less than live pounds
nor more than onc hun(1rcrl pounds.

&h whom any scalncn or othcr pcram r; l l ~ l l Imvc fl~crc11y conlractc*c\ slla]\

on or before the first day of Junc: in cnch ycnr or ns soon nftc.r as 111i.y \,C

practicable Jclirer into tlic oficc of the Rcside~~t Miigistratr ;it Adrl;lidc: tllc

original articlcs SO signcd as aforesaid ard such RIa,oistl.atn iu \~crcl,j

required on pagmcnt of the suni of five shil1ing.s t:, rccci\c nn:l rctain t11c

name in his custody nnd to grant office copies tllcreof to nriy pcrson intcrcstcd therein on payment of five shillings for each suck oficc copy if duly certi. fied to be a true copy of such articles by the sitid M~gistrate wliich CO y

roof of *the signature to the original of thc party s o u g ~ ~ t to Ee

e equivalent to such original: And in case the said art~cles shall delivered into the said ofice as aforesaid thc pcrson or persons

wilfully neglecting to dclirer the same shall forfeit and pay a penalty or sum

of not less than five pounds nor more than fifty pounds.

VII. And be i t further cnacted that every seaman or otllcr pcrson having sramcn may m e

perfornled his contract under any such articles as aforesaid and being in on ~rticlca tore-

consequence thereof entitled to any suchlay or 1ajs.n~ aforesaid Inay recover cO'er'a~s*

the amount or value of such lay or lays in an action as for m o n q llad and received against the person or persons hacing in or Ly such articles con- tracted for the service of such sean~an or othcr person and ouch articles or any office copy thereof as aforesaid shall be evidence in support of such action and the plaintiff shall be entitled to rccovcr the amount or value of such lay or lays although the defcndnnt or defcntlents may nut have actually sold or disposed of the oil and Lone or either of thcm in rcspcct of which the said lay or lays may be clenla~~dcd but t lic value tllcrcof sllull Le cstinlated at the amount S ccificd in the said articlcs or in case no sun1 shall have been so speeifief then at the fair market p i cc for which the same might be

sold iu this Province.

VIII. And he i t enacted that all olfences against this act not otherwise

pmidcd for shall be h e e d and detcrnmined a d all fines and penalties in respect thereof be awarded and imposcd in a suninlnry way by or before any

Resident Magistrate or two or more Justices of thc l'eacc: Provided alwajs

that no Justice of the Peace \vim is beneficially or as agent for another

intcrcsted in the wlrnlc fishcries shall in any care adjudicate in any manner

under this or a n j other section of this Act under a penalty of onc l~undred

pounds. +

SX. And t c it further ccactcd that all fine3 pcnnlties and farfeitures

imposed under the provkions of this act shall be paid into the hands of the

Colonial Trcasurcr of the said l'rosince for the gcncrd uses of the saiJ

Pmincc alid for the support of tllc Covernt~mlt thereof.

Justices so assernbIed and meeting at a Court or adjourned Court of Quarter

Sessions holden at Adelaide or at such one of the places hereafter a pointed for the holdiag of General Quarter Sessions as shall happen to be t e place (or nearest tu thc place) where thc judgment or conviction appealed from shall have been hacl and the Justices a t such Sessions soassembled shall heer

and thereupon finally determine the matter of such appeal in a summary way

and their judgment thereon shall be final and couclusive to all intents and

wposes nor shall any writ of certiorari afterwards be allowed and euch

Quticcs a t such Sessions so assembled are upon such appeal hereby authoris-

ed to award in all cases such costs as to them shall appear pro er to be p i d

by either party not esceeding in the whole the sun1 of ten poun s on any one B

appeal and in case the appeal shall be allowed and the conviction jud e-

meut appealed from be quashed then (in cases where a pecuniary pena t r f

was awarded) the whole amount of such penalty and of the costs and charge8

aforesaid shall be forthwith on demand returned to the party so appealiug.

L

GEORGE GAl'LfilR,

Governor of South Australia,

i

Passed in Council this 2nd day of March, 1840. j l:

GEORGE HALL,

Clerk of Council.

1

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4

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b

SCE1 EBULE.

ARTICLES OF AGREEMEST, made at in the Province of

South Australia bt?tween I

on the one part and the several seanlcu whose names are

hereunder suFscribcd opposite their respective seals on the other part:

Whereas the said seamen have rcspectivoly agreed and engaged iu the Vrhale

Fishery in the service of the said in name

and for the consicllcration hereinafter mcntioncd : Now these present witness	r
that each of them the said seaman for hinlself ngrccs with the said

in c~nsiclcration of the lay or shartl

hereinafter more pnrticularlq- mentioned and hereuncler writteu opposite to

his name: That 1le will at such tirnc (luring the ensuing Whaling Season

as he shall be requircct procccd in srtch bont or vessel as the said

may direct to any rivcr creek or place

on or near the c o ~ s t s of t11c saitl Province of South ~ ~ i s t r n l i n and its depend-

encies or in or near thc coast of hew South W a l c ~ New I-lollancl or any 6thet.

p m

t of ~wtrdia

or Van Diemen's Land or to any place in the high seas a?;

may require for the purpose

lling whales and trying down the same and obtaining and	reimving thc
ebone thereof and that he such seaman s i l l continue in suc	employment

direction control and management of the said

the whole of the nes t ensuing whaling scason also so long as

may deem it necessary to remain in

er creek or place on the coast of South Australia New South

Holland or any part of Australia or Tan Diemen's Land or

: And each of the said several seamen herebj- promises that he will do his duty by day and by night during the contitluance of his term

under this agreement and obey the lawfd commands of the said

or of the officer or officers from time to tinte

d over him and take care of all matters and things from time to ti~rle ed to his charge and assist in conveyiw them as may be required:

stinctly agreed that in case any suck seaman party hereto shall

nce unlawfully desert or absent himself from the service of the

befme the said term of service herebr engaged for shall be fully

e shall forfeit the whole of his said lay or portion of oil and whatever right to any remuneration of any kind under these articles or other-.

: And it is hereby agreed that absence from the Fishery Station for

ty-four hours without lawfid excuse shall be deemed a total desertion

l render the person so absent liable to such forftittire: Provided that atthe close of such tern1 of service atrd so soon as the quantity of oil and

whalebone procured by the said fishing party shall be ascertained the said

shall pay for the lays or shares of the said Seamen of and in such oil and whalebone at the rate or rates set against their resqective nsmes in the schedule at the foot of this agreement for every im- penal tnn of marlietablc black whale oil and for every ton of ~narlietable

whalebone i t being understoocl that three boats form one entire party and i h e lays are to be calculated accordingly: And the said several seamen agree

to accept the same in paplent for such lays or sharcs and in lieu of all wages or other compensation : Hut it is hereby agreed nercrtE~cless that out of the

said lays or shares the said .

may ~lecluct all advances

previously made to the said parties hereto of the second part in nioncx clothing

slops or tob~cco : And lastly the said

agree to provide foi* and ~ t ~ i ~ i ~ l ~ to each of fhc

raid seamen weekly during the said term of service t l x iollou-ins pnjr-isions and other necessaries of good quality t h a ~ is to say tu-t.!v,. pol111ds of t d or nine pounds of pork twelve pouncls of bread or flour four ounces of tert ant? two pouncls of suwr: And all provisiorrs reqLlireit by m) s o m l n n in nciclitio~l to thesaid quaut&ies nud sopplicd to him accar~lilin~l~ are to be chnrgcablt? against him as in the case of clothing and moucy : For the duc j~er lb r~~lnuce

of all and wary of which alorc mcntloned articles the soid p r t i c s hxre hereto each and every of them subscribed their nnlucs and p1aci.d tllcir scnls thu

month and day ajisinsl their respective namcs and seal; hcrtwnclc~r \G r i t t m :

And further the partied whose names are h twnntu snlj-criht! ilo ;:grtlt:

that they will assist in shipping the oil o l d wh;ilt~bonr 0.1	lmard	;In)- rc..i:I
free of expenbe to the said

if rquirecl br then1 at the conclusion of tllc nei..c<r~\	: jut? i-	i':lyi 1 1 i.	L	+: ,	'	:	'
,)

that onc cighth shall Lc dccl~~ctcrl from thc ?.:,;t i > ! ' > ? l c - + i:;%.

h t h boat employed in the said I'isll, 1.5

---

,lue of

Oil. lone.