Stilk v Myrick [1809] EWHC KB J58 (16th December 1809)

Following the desertion of two sailors, a ship's captain promised the remaining crew extra wages to sail home. This promise was held unenforceable as the crew were already contractually bound to cover all emergencies, establishing that performing a pre-existing duty lacks consideration.

Facts

The plaintiff, Stilk, was a seaman on a voyage from London to the Baltic and back. He signed ship’s articles agreeing to be paid wages of £5 per month. The ship originally had a crew of eleven. During the voyage, two of the seamen deserted. The captain, Myrick, was unable to find replacements and, to prevent further desertions, promised the remaining nine crew members that he would divide the wages of the two deserters equally amongst them if they fulfilled their duties to work the vessel back to London. The crew agreed and worked the ship back to its home port. Upon arrival, the captain refused to pay the extra money.

Issues

The central legal issue was whether the captain’s promise to pay the additional wages was supported by valid consideration from the plaintiff and the other seamen. Specifically, did the crew’s agreement to continue working the short-handed vessel constitute good consideration for the promise of extra pay, or were they simply performing a duty they were already obliged to perform under their original contract?

Judgment

The action failed. Lord Ellenborough held that the agreement for extra wages was void for want of consideration.

Lord Ellenborough’s Reasoning

Lord Ellenborough reasoned that the crew had not provided anything of value that they were not already contractually bound to give. The original articles signed by the seamen bound them to serve the ship for the entire voyage, which included an obligation to do all they could under any emergencies that might arise. The desertion of a part of the crew was considered such an emergency.

Here, I say, the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all that they could under all the emergencies of the voyage.

He further elaborated that the sailors’ duty to bring the ship to her destined port remained, and their efforts, even under increased difficulty due to the desertions, fell within the scope of their original contract.

They had sold all their services till the voyage should be completed….the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death; and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port.

Crucially, Lord Ellenborough distinguished his reasoning from the earlier case of Harris v Watson, which was decided on grounds of public policy to prevent sailors from extorting their masters. While agreeing with the outcome of that case, he established lack of consideration as the proper legal basis for the decision.

I think Harris v. Watson was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of consideration.

Implications

The judgment in Stilk v Myrick firmly established a key principle in the English law of contract: the performance of, or promise to perform, a pre-existing contractual duty owed to the promisor does not constitute good consideration for a new promise from that same promisor. This case became the leading authority for the pre-existing duty rule. It clarified that for a variation of a contract to be enforceable, such as a promise to pay more for the same obligation, new consideration must be provided by the promisee. The decision shifted the legal rationale for such cases away from the vaguer grounds of public policy towards the more technical and fundamental doctrine of consideration, thereby reinforcing its central importance in contract formation and variation.

Verdict: The plaintiff was non-suited. The promise to pay extra wages was found to be unenforceable, and the claim failed.

Source: Stilk v Myrick [1809] EWHC KB J58 (16th December 1809)