Facts

The claimant and other sailors were under contract to sail a ship from London to the Baltic and back for £5 per month. During the voyage, two of the sailors deserted. At Cronstadt the captain attempted unsuccessfully to find replacements for the two deserters. He entered into an agreement with the remaining sailors at Cronstadt, promising that if he could not find two replacement sailors at Gottenburgh, he would divide the deserters’ wages between the remaining sailors if they worked the ship for the remainder of the voyage back to London. The captain was unable to find two more sailors to take the place of the deserters and the remaining crew sailed the ship back to London. Upon their return the remaining sailors sued to enforce the captain’s promise of the extra payment.

Decision

On the Campbell report of the case, citation above, Lord Ellenborough held that the sailors could not enforce the promise of extra payment as it was not supported by consideration. They were only entitled to receive their original wages of £5 per month. By their original contract, the sailors had ‘undertaken to do all that they could under all the emergencies of the voyage’. Desertion was just such an emergency and under their original contract the captain could have compelled the sailors ‘to take the whole duty upon themselves’: per Lord Ellenborough. Therefore, the sailors had given no consideration for the promise of the extra payment. The case would have been different, according to Lord Ellenborough, ‘if they had been at liberty to quit the vessel at Cronstadt’. In such a case, they would have had something to bargain with. Therefore, the sailors were unable to enforce the agreement to divide the deserting sailors’ wages between them, for want of consideration.

Comment

The position is different, and a promise of extra payment would be enforceable, if the person claiming the additional payment goes above and beyond their existing contractual duty. In the footnote to the Stilk v Myrick report it was noted that ‘where a seaman performs some service beyond the scope of his original contract, the case is otherwise’, citing Yates v Hall 1 TR 73; see also Hartley v Ponsonby (1857) 7 E & B 872. Indeed, as noted above, Lord Ellenborough thought that the case would have been different if the sailors ‘had been at liberty to quit the vessel at Cronstadt’. But they had sold all their labour in the original contract. A case in point is Hartley v Ponsonby (above), where sailors claiming on a promise of extra pay had been entitled to quit the ship mid-voyage as it had become extremely hazardous as a result of many of the crew deserting. By continuing in such circumstances, they had provided good consideration.

The defendant had argued that on grounds of public policy, agreements such as this for sailors’ extra wages should not be enforceable, citing Harris v Watson (1791) 1 Peake 102, as it would lead to captains being held to ransom. However, Lord Ellenborough stated that the true principle (at least according to the Campbell report) is that of want of consideration. In any case, Stilk v Myrick is distinguishable from Harris v Watson as in Stilk there was no ‘holding to ransom’. The ship was not at sea and there was no emergency. The promise of extra payment was made in safety in the cold light of day, on shore at Cronstadt, unlike the agreement for extra wages in Harris v Watson, which had been made at sea.

In a more specific sense however, even assuming that the claimant could establish that they had given good consideration for the promise of a bonus payment, the comparatively recently developed doctrine of economic duress would allow any new agreement to be set aside where the defendant had used illegitimate pressure to cause the claimant to enter into the contract: North Ocean Shipping Co. Ltd v Hyundai Construction Co. Ltd (The Atlantic Baron) [1979] QB 705; Occidental Worldwide Investment Corporation v Skibs A/S Avanti (The Siboen and The Sibotre) [1976] 1 Lloyd’s Rep 293; Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel) [1983] 1 AC 366; DSDN Subsea Ltd v Petroleum Geo-Services ASA [2000] BLR 530. This could include the threat of non-performance of a contractual obligation, such as delivery of goods at a critical time, in order to get the other to pay more, as in Atlas Express v Kafco [1989] QB 833, or it could include manoeuvring the promisor into a position of vulnerability and then exacting a demand: Borrelli v Ting [2010] Bus LR 1718, e.g. for payment of extra.

Wider questions

Stilk v Myrick sits uneasily alongside the later case of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, in which it was decided that a promise of extra payment is enforceable if the promising party gains a ‘practical benefit’ from the performance of the existing contract. In Roffey, the Court of Appeal did not intend to overrule or discredit Stilk v Myrick, only to refine and limit its ambit, and the doctrine of economic duress would continue to apply. Two points may be observed. Firstly, the idea of practical or commercial advantage appears inherently uncertain. Secondly, it appears that the principle in Roffey operates when it is clear that the contract will not otherwise be performed. Maybe, as in that case, the originally agreed contract price had been too low, or it could be that the promisee would otherwise simply ‘give up on the job’ and the contract would not be performed at all: E. McKendrick, Contract Law, Text, Cases and Materials (9^th edition, Oxford University Press, 2020). It is highly arguable that the decision in Roffey discourages accurate contract pricing and fosters sloppy performance of contractual duties.