Built on a Whale’s Back: Convict Labour, Dangerous Work, and the Limits of Care

In the 1830s, Hobart was one of the busiest whaling ports in the world. Whale oil lit its streets. The sandstone warehouses lining Salamanca Place, still standing, were built specifically to store whaling products, and by 1830 the new deeper dock was bustling with whaling ships, sailors, traders – and some say smugglers. The City of Hobart’s coat of arms carries a whaling ship as its crest: the Flying Childers, built at Battery Point in 1846, in recognition of the industry’s importance to the town’s identity and economy.

Van Diemen’s Land made more money from whale exports than from any other product during that decade. What is less often remarked upon is who was doing the dangerous work.

Whaling was not a genteel occupation. Shore-based stations required men to row out to meet southern right whales in small open boats, drive a harpoon into the animal at close range, and then hold on while the line ran out. When the whale tired, the crew closed in to lance it. A harpooned whale that turned on a boat could capsize it instantly. Lines running out at speed could take a man’s hand or drag him overboard. Flensing, stripping the blubber from a dead whale alongside the boat or at the station, involved sharp implements, heavy labour, and rendered fat that made every surface treacherous. At its peak in 1849, Hobart had 34 locally owned and operated whaling vessels. The industry employed hundreds of men.

The founding moment of Tasmanian whaling is itself instructive. In December 1815, Captain James Kelly, later acclaimed as the father and founder of whaling in Tasmania, set out from Hobart to circumnavigate Van Diemen’s Land in an open whaleboat. Most sources today will simply state that it was Kelly and ‘four convicts’ but there is never a reference or any names. The only confirmation of names available so far is from Kelly’s journal, held by the Royal Society of Tasmania. It states: On 12th December 1815 James Kelly sailed from Hobart Town in a small sized open five oared whaleboat to examine the then unknown West Coast of Van D. Land accompanied the following named four men as crew: John Griffith, a native of the Colony, George Briggs. ditto. William Jones, English man, Thomas Toombs, ditto

Nothing so far to confirm whether Jones and Tombs were serving or former convicts, but a bit of digging into the convict records shows that both arrived in the NSW colony on the convict transport Calcutta in 1803, and by 1815 were in the Hobart colony.

Jones appears to have been working in maritime trades in the intervening years. Tombs had a more eventful intervening decade: he had absconded into the bush, lived for a period on emu and kangaroo far from any settlement, and in 1812 petitioned for mitigation of his sentence by hunting down two armed bushrangers, having tracked them across forty miles of country and securing them with kangaroo cord and conducting them into town. He received a conditional pardon in January 1813, which meant he remained legally constrained and could not leave the colony. Two years later he was in Kelly’s whaleboat, heading into the unknown southwest coast.

Tombs is not a figure who fits easily into the category of passive victim of his circumstances. He was someone navigating the convict system with considerable resourcefulness: a man who had survived the bush as an absconder, outwitted two armed men, and earned his partial freedom through nerve. But navigating the system is not the same as being free of it. His options remained constrained, his liberty revocable, his future contingent on the continued approval of the colonial authorities. When dangerous work was offered, dangerous work was what you took.

That is the point. The whaling industry did not draw its labour from somewhere outside the convict system – it drew from exactly the pool the system had created: transported men with maritime skills, men hardened by years of colonial labour, men whose circumstances left them little room to decline.

Kelly’s name lives on in the famous steps linking Salamanca Place to Battery Point.

Less remembered is what those steps connected: the world of maritime commerce above, and the convict-built warehouses below, in a colony where the line between free enterprise and forced labour was, for decades, largely invisible.

The colonial authorities understood perfectly well how close that world was to the convict population — and their response tells you a great deal about what they were, and were not, concerned about.

The first application to establish a shore-based whaling station in the Derwent was approved in 1805. Within a year, Lieutenant Governor Collins had issued general orders specifically aimed at controlling movement between the whaling station, the settlement, and vessels anchored in the river. No person in charge of a boat was to land at any place where the business of the fishery was being carried on, or communicate with any ships employed in the river, without written authority. The coxswains of government boats were prohibited from even hailing people employed in the whaling industry. Under additional regulations, all ships using the port were to be searched before leaving, and small craft were ordered to take down and pack away their sails and rudders upon docking: for fear of seizure by absconding convicts.

The Port Dalrymple regulations were equally explicit: masters of ships faced a penalty of £200 if they took any person from the colony without written permission, and were required to deliver any convict discovered on board after sailing to the commanding officer at the first port of call. No convict, male or female, was to be received on board any vessel in the harbour without a pass from the Lieutenant Governor or a magistrate. No boats were to remain on shore after 8pm.

These were not minor administrative measures. The concern about escape was substantial enough to directly slow the whaling industry’s development. Bay whaling did not become common in the Derwent until 1819, over a decade after the first station was approved, partly because of the difficulties in controlling the harbour to prevent convicts absconding on fishing and whaling vessels.

The colonial state was alert to precisely one risk at the intersection of convicts and whaling: the risk that convicts might escape. That risk generated governor-level regulation from the industry’s first year. The risk that convicts might be injured or killed doing the work generated nothing at all.

The assignment system that governed convict labour in Van Diemen’s Land was a transaction between the colonial government and private employers. Masters received workers at almost no cost. In return, they were required to provide food, clothing, shelter, and medical care. The convict worked. The master profited, or didn’t, and bore the cost of maintenance either way.

What the assignment system did not provide was any mechanism by which a convict could refuse dangerous work, or seek redress if injured doing it. A master could return an unsatisfactory convict to the authorities. A convict could not leave an unsatisfactory master. Refusal to work was a punishable offence. The labour was coerced by definition, and the terms were set entirely by the other party.

This was not an oversight. It was the point. Transportation was intended to be punitive, and one of its punishments was the loss of agency over one’s own labour. The system was, as abolitionists of the 1830s noted, a giant lottery: a well-behaved convict assigned to a brutal or reckless master had no recourse. The Molesworth Committee, reporting to the British Parliament in 1838 on the state of transportation, described the assignment system as producing outcomes indistinguishable from slavery: not primarily because of the violence it permitted, but because of the structural powerlessness it imposed.

The question of who paid when an assigned convict was injured at work has a specific and revealing answer. Originally, masters were entitled to send sick or injured convict servants to the colonial hospital at government expense. By the late 1820s, precisely as the whaling industry was reaching its peak, this had changed. Masters were now expected to meet the cost of their servants’ hospital treatment. At the government hospital in Hobart, the fee structure was explicit: treatment was free for convicts on government labour; convicts assigned to private employers were charged between one and three shillings.

This is financially trivial. One to three shillings was not a meaningful deterrent to anyone running a profitable whaling operation. But the fee structure does clarify one thing: the colonial government understood the distinction between its own workers and those it had transferred to private employers, and it had decided that the cost of an injured assigned convict fell on the person profiting from their labour.

What it did not decide, what no one at the time appears to have thought to decide, was whether there were categories of work too dangerous for assigned convicts to be directed into. There was no equivalent of even the earliest British factory legislation. The Factory Act of 1833, which applied only to textile mills and regulated only the hours worked by children, was the most advanced workplace protection law in the English-speaking world at the time. It did not reach the colonies, and even if it had, it would not have covered maritime labour.

The concept of an employer’s duty to provide a safe system of work did not exist in law. The laws regarding negligence, which eventually gave workers a legal basis to claim against employers for foreseeable harm, was not established until 1932. A convict maimed on a whaling boat in 1835 had no claim, no appeal, and no compensation beyond whatever medical treatment his master was obliged to provide.

There is an irony in the record that is worth sitting with.

The colonial government did have a formal medical oversight role for one category of harm to convicts: flogging. When a convict was flogged, a surgeon was required to be present: not to prevent the punishment, but to supervise it, to ensure that the lash did not go so far as to kill or permanently disable. There were recorded instances of floggings being halted on medical grounds, and restarted once the convict had recovered sufficiently to receive the remainder.

This oversight existed because the punishment was the government’s business. The state was inflicting harm, and it had an institutional interest in administering that harm correctly: within limits, according to procedure, with someone present to verify that the machinery of punishment was functioning as intended.

No equivalent procedure existed for workplace injuries. No surgeon attended when a convict crewed a whaleboat. No official verified that the work was proportionate to the risk. No record was required when a man was hurt. The state’s medical attention followed its penal authority, and stopped precisely where private enterprise began.

The state was, in short, more institutionally attentive to the harm it deliberately inflicted than to the harm it permitted others to inflict by accident. And it was more concerned about a convict escaping on a whaleboat than about a convict being killed on one.

Whether convicts were routinely assigned to whaling ships specifically, as opposed to shore-based processing work, remains uncertain. What is clear is that convicts constituted more than half the available labour force in Van Diemen’s Land in the 1840s, and that whaling entrepreneurs drew from the same pool of assigned labour as every other employer in the colony. The composition of Kelly’s 1815 crew offers one documented example of how that worked in practice: transported men, working a dangerous coast, their choices shaped by a system that had followed them across the world.

What is not uncertain is the framework within which any such labour occurred. A convict sent to work on a whaling boat had no right to refuse, no protection against the specific hazards of the work, no compensation if injured, and no recourse if the master’s negligence contributed to the harm. His sentence continued regardless. The master’s cost, if he needed hospital treatment, was a shilling or two.

Hobart was built on a whale’s back, as the saying goes. It was also built on a convict’s back. The two facts were not unrelated, and the intersection between them, the question of what the colonial state owed the people it transported and then lent out to dangerous industries, was a question that nobody in authority appears to have thought worth asking.