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Colonial Cases

Vidal v. Giquel, 1870

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Vidal v. Giquel

French Consular Court, Foochow
8 November 1870
Source: The North-China Herald, 13 December 1870

 

FRENCH CONSULAR COURT.

Foochow, Nov. 8th, 1870.

Before M. BLANCHETON, Consul.

BARON DE MERITENS, COMTE DE LAVERGNE, Assessors.

 

VIDAL v. GIQUEL.

   In the French Consular Court at Foochow, on the 8th November, the above case was tried before M. E. Blancheton (French Consul), Baron de Mertens and Comte De Bony de Lavergne, assessors.  Defendant took objection to the assessors on personal grounds, but the objection, having been considered, was overruled, Defendant being fined, in accordance with French law, in the sum of 200 f.  The case excited considerable interest both at Foochow and at Pagoda Anchorage, and an unusually large audience was present, amongst whom were - Mr. Sinclair, H.B.M.'s Consul; Mr. Murray, Acting Vice Consul at Pagoda Anchorage; Lieut. Johnson, H.M. gun-boat Banterer; Capt. De Premesnil and officers of the French Aviso Coetlogon; and others.

   The following is a rough translation of the Plaintiff's Petition, from which the facts of the case may be gathered:-

   M. le Consul, - Your tribunal having drawn up  report of non-conciliation on the 14th instant, in reference to my affair with the Director of the Arsenal, I have the honour to beg that you will in the first instance cite before the Court the said Directors, P. Griquel and P. d'Aiguebelle.  The reasons for my request are as follows:-

1. The suspension of my duties as Doctor of the Arsenal, which has been pronounced and notified to me by an official order of the Direction, on the 29th of August, 1870.

2. The suspension has been pronounced not only without valid reason, but is absolutely contrary to the terms of my contract or engagement.

3. The reasons alleged for my suspension, tending to prove that I have done my duty as doctor not only with negligence, but even in bad faith and with bad will, are calculated seriously to injure the consideration I enjoy privately, and to destroy the confidence which I have always inspired and ought to inspire in my practice.

4.  By this conduct, the Directors have manifestly, intentionally and without reason, broken every contract or engagement which may have existed between us, and it becomes absolutely necessary for my honour no longer to discharge the medical service of the Arsenal.  The breach of contract entails upon me a loss of an extremely serious nature, since it obliges me to seek elsewhere other means of a livelihood for my family and for myself.

5.  The loss which has been entailed upon me, is further greatly increased by the fact, perfectly well known to the Directors, that I had to give in my resignation as Surgeon-major in the army to follow them to China, and that I have lost an honourable and sure position which it had taken me fifteen years to acquire, by my having put too much confidence in that good faith which their title of Naval Officer appeared to guarantee.

6.  Further, the Directors have failed in their duty, by giving me no satisfaction in regard to well-grounded complaints which I have addressed to them on several occasions, especially in my letter of 7th August, 1870, in reference to bad treatment of myself and of my family by the Chinese.

7.  Not only have the Directors given me no satisfaction on this subject, but farther, when I wished, for this reason, to address myself on the subject to the Consular authorities, they tried to dissuade me, and to hinder me from doing so by threatening me in my capacity (of doctor), as evidenced especially by their official letters of 8th August, 1868, and 4th April, 1870.

 8.  The evident result of this want of protection was an increase of insolence, and arrogance on the part of the Chinese, now assured of impunity.  The residence of my family in the Arsenal became so difficult and so dangerous, that it was my duty to conduct them to a place of safety in Shanghai, which I did after giving notice to the Directors, in my letter of the 9th August, a letter which remains without a reply.

9.  This measure was rendered still more indispensable from the fact that the Directors authorized several of the personnel of the Arsenal to address, to the French Legation in Peking, a request for the expulsion of myself and of my family from the Arsenal, under the ridiculous pretext that my family might draw down the wrath of the Chinese upon the whole of the French employed.  The directors, on the one hand, as shown by their letter of 20th August, knew that this request had been made; and on the other, knew well that the Chinese had no complaint against me and my family, but that, on the contrary, I had rendered them great and numerous services, in performing important operations and affording them treatment, in which my family often assisted me. The services I have rendered to the Chinese commenced in November, 1867, and have continued up to August, 1870; I have received neither salary nor thanks for them.

   On account of the above, the Plaintiff prayed the Consul to order the defendants:-

  1. To pay the plaintiff conjointly and separately, the sum of 150,000f., as damages and interest for the excessive losses they have occasioned him and for the serious injury done by them to his reputation.
  2.  To pay the whole expenses of the transport of himself and his family from Foochow to Paris, first class, calculated at the existing Railway and Steam-boat Companies rates.
  3. To pay the plaintiff full salary up to the data of a judgment being pronounced.
  4. From the date of the decision, to pay plaintiff two months' salary and to allow him two months to give up possession of the house and its pertiments now occupied by him at the Arsenal.
  5. To pay the plaintiff the total cost of the passage of himself and his family to Shanghai, and all expenses incurred for their maintenance at Shanghai, until the definitive settlement of this case, and  -
  6. That the official order of the Directors which has been communicated to the personnel of the Arsenal shall be annulled by a fresh official order, which shall be communicated to all the members of the Arsenal personnel, and of which a certified copy shall be sent to the plaintiff.

    The Defendant's answer (which is too long for reproduction in extenso, and of which we can only give an epitome) commences by  quotations to prove that, by the special contract entered into with the plaintiff, the latter was bound to take medical care of all those employed in the Arsenal, and that the Directors were bourn, in cases of anything like a disagreement leading to a separation, to act as if the Arsenical had been closed by the Chinese - to provide him with a passage to Europe and four months' full pay.  That by the general contract entered into with all the foreign employees, they are bound to serve with zeal and to the best of their ability, and that the Directors have the right to dismiss any person who should show continued remissness in his duty, or who should strike on insult Chinese officers or workmen.

   The Defendant pleads that Dr. Vidal and his family, during a residence of 3 years in the Arsenal, have committed many hostile acts against the Chinese of the district, especially against workmen in the employment of the Arsenal; striking and insulting them so as to cause, from the incessant provocation, a real ill-feeling, and that many complaints on the subject (some of them calling upon him to interfere) had been made to the defendant. He further pleads that the plaintiff, representing himself as the victim of Chinese ill-will, addressed a letter to the Directors on 9th August 18670, in which he complained of the bad treatment of his wife, and asserted that, since the Tientsin affair, the insolence and arrogance of the Chinese had passed all bounds, and that threats of murder were daily used against the French employed in the Arsenal; that if he did not get prompt and real satisfaction, he would remove his family to a place of safety, and in the meantime had sent a copy of his letter to the Acting French Consul at Foochow, asking him to forward it to the Charge d'Affaires at Peking and the Minister of Foreign Affairs.  An inquiry by the Chinese Authorities was called for by the defendant, to which the plaintiff was summoned.  By this inquiry, and from a careful interrogation of the employes of the Arsenal, it was proved that no chang in the attitude of the Chinese had taken place; and that any danger, could it be proved to exist, could affect no one except the plaintiff and his family, and that thanks to their own treatment of the Chinese.

   The defendant further pleads that on the 6th August, 1868, the plaintiff refused by letter any longer to give medical aid to Chinese, which by the spirit of his contract he was bound to do.  That numerous complaints of negligence and want of care of seriously sick people had been made by the workmen; and that in the case of Calame, overseer of the workshops de precision, the Directors themselves had to interfere, to obtain attendance upon a man who had been several days confined to his bed.  Among many formal verbal complaints to defendant, was that of Verre, deceased, who on his death-bed complained that for four days he had been left without attendance.  That at last, the complaints of the sick became more numerous; a large number of the employee demanded of the defendant than an enquiry should be made into the medical service of the Arsenal - a legitimate request, which the defendant could not refuse.

   The result of the enquiry was communicated to the plaintiff on the 27th August, by a letter which informed him that, until his reply to the statements of the witnesses was received, no decision would be given.  The plaintiff replied next day that he could not undertake the task for some considerable time; the defendant, while granting him the time required, had to take into consideration gthe protests of seriously sick employes, who declared they had no confidence in the services of the plaintiff, and demanded earnestly the assistance of the English Doctors resident in the locality.  Under these circumstances the defendant, while still desirous to maintain the rights of the plaintiff and to occasion him no loss, suspended him provisionally from his duties, but allowed him to continue on full pay.  Further, that the plaintiff, while accepting his suspension, to a certain extent, by drawing his pay as usual up to the end of August, left the Arsenal without the authority of the defendant and without giving warning to him, stayed away a month, and returned to the Arsenal without notifying the fact; thus breaking his contract, which the defendant as director has respected.  That he left the letter of 27th of August unanswered until he summoned the Director to appear before the Consular Court and pay fr. 150,000 damages, &c.

   After discussing the points on which the Plaintiff bases his case, the Defendant prays the Court to dismiss the case of the Plaintiff, and  to sentence him to pay $200 to defendant for expenses, as also costs of Court; and brings a cross-action, praying the Court to cancel the Plaintiff's agreement from the date on which he left for Shanghai (8th Sept.), and so broke his contract, the Defendant to pay the indemnity stipulated by the contract, viz., four months salary and the cost of a passage to Europe.

   The cross-action was based on the assumption that the disagreement provided for in Art. 5 of the Plaintiff's contract had been clearly proved in five particulars, viz., by Plaintiff's failure to reply to the enquiry instituted as to his conduct until after he had summoned the Director before the Court; by his quitting the Arsenal for Shanghai without leave given or asked, while under an order of suspension against which he had not protested; by reporting to the French Authorities a state of things which did not exist in the Arsenal, and that without consulting the Director or the Arsenal community; that his treatment of the Chinese had produced a state of feeling towards him which the majority of the Arsenal employes declared to be dangerous; and, lastly, that for a lengthened period he had discharged his duties remissly, thus bringing himself within the scope of Art. 10 of his general contract, which refers to dismissal, and to which Arts. 1150 and 1132 of the Code Civile are applicable.

   In the summing up the Court declared that Dr. Vidal had not been guilty of serious negligence or incapacity; that Mr. Giquel, in suspending him, was only carrying out the discipline of the Arsenal; that Dr. Vidal, in quitting the Arsenal for Shanghai without the Director's permission, had acted thoughtlessly and had failed in official courtesy; that the Arsenal Order of Suspension (No. 210) might be interpreted by the communities at other ports, ignorant of the facts of the case, in a sense prejudicial to Dr. Vidal; and that the Arts. Of the Civil Coder of 1150 and 1132, as quoted by defendant, did not apply in this case.  And therefore the Court decided as follows:-

First, - That the contract entered into between Dr. Vidal and Messrs. Giquel and d'Aiguebelle on the 13th Aug. 1867 at Paris is cancelled from this date, in accordance with the fifth article of the sub-contract, on condition that a sum equal to four months' of Dr. Vidal's pay and the cost of a first-class passage for himself and his family from Foochow to Paris, calculated at the existing steamboat and railway rates, shall be paid by Mr. Giquel as soon as the present judgment shall be pronounced.

Second, - That Mr. Giquel shall pay to Dr. Vidal his monthly pat as per aforesaid contract up to the date of said judgment being pronounced.

Third, - That, in order that no loss may possibly result in the future to Dr. Vidal, from the interpretation of Order No. 210, by the communities at other ports, it is ordained that this order shall be withdrawn by the Direction, and that the personnel shall be informed that Dr. Vidal leaves the Arsenal on account of disagreement between him and the First Director.

Fourth, - That the lodging occupied by Dr. Vidal in the Arsenal shall remain at his disposal for a month from the date of the present judgment, in order to give him the necessary time to remove his furniture to whatever destination he may think proper.

Lastly, - The tribunal orders that each party shall pay his own costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School