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Colonial Cases

Mercantile Pilot Co. v. The Junk Kyin Nyon Shan, 1856

[shipping, salvage]

 

Mercantile Pilot Co. v. The Junk Kyin Nyon Shan

United States Consular Court, Shanghai
26 June 1856
Source: The North-China Herald, 30th June 1856

 

U.S. CONSULAR COURT.

26th June 1856.

Before G. F. SEWARD, Esq.,

J. W. ALLEN, Esq., A.  G. LAMBERT, Esq., Associates.

THE MERCANTILE PILOT CO. versus The Junk 'KYIN NYON SHAN."

The members of the Mercantile Pilot Company claimed $1,000 for salvage of a Chinese junk, under circumstances set forth in the following plaint.

The libel of Alexander H. Smith, Henry Ingle, and John H. Simpson, on behalf of the Mercantile Pilot Company and their schooner the Daniel Webster of seventy seven tons, and a crew of six men, who libel for themselves, owners and crew, and for all others interested with them, a list of whose names is hereunto annexed, against the Chinese junk Kyin-nyon-shan, her tackle, apparatus, furniture and cargo, now lying and being in the port of Shanghai, and within the jurisdiction of this Consular Court, and against all persons intervening for their interest therein, in a case of salvage civil and maritime, allege as follows:-

1st. - The libellants say - that on the 23rd of May (about 5 p.m.) their schooner being outward bound to the inner pilot ground, they observed on the north bank at the entrance of the Yangtze river, a Chinese junk, making signals to attract attention by waving a flag or piece of clothing attached to a bamboo.  They kept the schooner off and ran down towards the junk as far as they could consistently with the safety of their own vessel, and then hove to.  The Chinese junk, when they saw the schooner keep away, hauled up their own sampan which was fast astern, and getting into her came towards the schooner; the schooner also hoisted out her boat which went down to the sampan, and taking her in tow assisted her towards the schooner.

There were 13 Chinese in the sampan, who upon their arrival alongside the schooner, asked for permission to come aboard, saying that their vessel was no longer seaworthy, and that their lives would be endangered by remaining longer on board her.

2nd. - The libellants then anchored their schooner, and, with their own yawl boarded the junk, which they found thumping heavily on the bank, and gradually heaving farther up; she was quite full of water, and her rudder was gone.

3rd. - Finding that her cargo was composed entirely of timber, the libellants determined to make an effort to save it, and for that purpose returned to the schooner and procured an anchor and cable, which they placed in position, securing the cable to the junk for the purpose of preventing her going farther up on the bank; as the tide rose the junk floated, and swung fair to the anchor, to which she rode for some time, but the cable eventually parted, and part of it and the anchor were lost.

4th. - By this timer, (12 midnight,) the ebb tide had made, and the junk commenced drifting seaward, when the schooner was got underway and suffered to drift out in company with the junk; before daylight, the moon having set, the libellants having lost sight of the junk and it being nearly low water, they brought their vessel to an anchor, as they feared the junk might have again grounded on the bank.

5th. - At daylight on the 24th of May, the libellants got their vessel under weigh, and shortly after, again sighted the junk bearing to the southward of them; they beat their schooner out to her, and took her in tow (about 7 a.m. the light bearing E.N.E.  The schooner succeeded in towing the junk about 12 miles, when the ebb tide becoming too strong, they were compelled to anchor.

7th. - The P. & O. Steamer Ganges happening to pass at this time, the libellants ran their schooner near her and spoke her, asking those on board to send down a tug boat from Shanghai, which they promised to do.

8th. - The libellants then boarded the junk again, with the intention of getting one of the schooner's bower anchors on board, but the wind and the sea having increased, it was deemed unsafe to trust an anchor and chain in the schooner's small yawl, and in attempting to get one on board from the schooner, the vessel of the libellants got on shore; they were compelled to lighten her by shifting casks of water, and other heavy moevables forward, to get her off, which they succeeded in doing in about ten minutes; the junk by this time was also aground; and as the water was now falling, it was evident that she could not be got off until the tide again flowed, which would not be until after day light the next morning.  Under these circumstances it was resolved to anchor in the channel abreast of the junk, and wait for daylight and the steam tug that was ordered from Shanghai; the libellants accordingly sailed out into channel and anchored a short distance astern of the steamer Yin-tze-fei.

9th. - At daylight (May 25th) there was a dense fog, with rain, and it was impossible to see any distance; about 6 o'clock it however cleared up a little, when the libellants saw the steamer Kiangse anchored between them and the junk; they got underweigh as soon as possible, and endeavoured to reach the junk, but the wind and tide being ahead, and the fog setting very thick again, they were compelled to anchor.  When the fog again cleared up they saw the Kiangse making fast to the junk; they also saw two tugs coming down, one of which proved to be the one ordered by the steamer Ganges; they immediately began to get underweigh to get to the Kiangse, but before they could succeed in doing so the Kiangse started with trhe junk in tow, the schooner at that time being not more thwn 3 to 4 cables lengths off.

10th. - The libellant Simpson then got into the schooner's yawl;, over a thousand paces off, accompanied by the Captain of the junk, and proceeded alongside the Kiangse and hailing her, asked for a passage to Shanghai for himself and the crew of the junk, which request was refused by the Captain of the Kiamgse whose language was very abusive and far more violent that the occasion required.  They were not permitted to remain on board their junk, but struck.  The libellant Simpson then endeavoured to explain to the Captain of the Kiangse the nature of their claim upon the junk, to which re refused to listen, whereupon the libellant returned to his schooner.

11th. - The steam tug Martin White then came alongside the schooner, and the libellants Smith and Simpson  went on board her, taking the yawl in tow they proceeded alongside the Kiangse to represent the matter more fully to Capt. Law.  Upon attempting to go on board they were ordered off by Capt. Law, who threatened to shoot them if they offered to board the junk; telling him at the same time that they did not wish to quarrel about the matter but wished to explain more thoroughly to him.  The Kiangse finally stopped and anchored, when the libellant Smith went on board.  The libellant attempted to explain the matter to Captain Law, who refused to listen to anything the libellant had to say in reference to the junk.  Captain Law said that he would give the libellant a passage to Shanghai if he wished to go, but that he would not take the crew of the junk or any one belonging to her.  He said the libellants were a parcel of blackguards, and that he would take warrants out against them on his arrival in Shanghai.  As the libellant was leaving the steamer to go on board his schooner, the steamer again started with the junk in tow, and Captain Law told him at the same time that if he attempted to board the junk or cut the hawser, he would shoot him.  The libellant Simpson then went on board the Fokelin and procured a passage to Shanghai for the crew of the junk, and the schooner of the libellant against started on her outward voyage.

12th. - The libellants contend that the interference of the Kiangse was entirely uncalled for, and unlawful, and that the junk at the time of her seizure by the Kiangse was not derelict as will be shown in evidence.  They likewise content that, at the time of the Kiangse's interference they had with considerable risk to their own property, rescued the junk from a position of positive danger, and placed her in one of comparative safety, and that with the means at their disposal they would have been able to have effectually completed the task they had undertaken, without any assistance from the steamer Kiangse whatever, as will be shown in evidence.

The libellants say, that judging from the best information they have been able to acquire concerning the value of the said junk and cargo, they believe the junk in her present state to be worth One hundred and fifty Mex. Dollars ($150.00), and the cargo to be worth One thousand and nine hundred Mex.  Dollars, ($1,900.00), making the aggregate value to be Two thousand and fifty Mex. Dollars, ($2,050.00), and they so allege the truth to be.  Wherefore the libellants pray that process in due form of law, according to the course of this Court in cases of Admiralty and Maritime jurisdiction, may issue against the  said junk, her tackle, apparel, furniture, and cargo, and that all persons claiming any interest therein may be cited to appear, and to answer upon oath all and singular the matters aforesaid, and that this Court will be pleased to decree to the libellants the sum of One thousand and five hundred Mex. Dollars, ($1,500.00), as a reasonable and proper  salvage in proportion to the value of the said junk and cargo, and that the said junk and cargo may be condemned and sold if necessary to pay said salvage, with costs, charges, and expenses, and that the libellants may have such other and further relief in the premises, as in law and justice they may be entitled to receive.  ALEX. SMITH, H. INGLE.

To

GEO.  F. SEWARD, Judge in the Court of the U.S. Consulate General, Shanghai.

Sworn to before me by the subscribers, this 15th day of June 1866.A. H. BRADFORD, Clerk of the Court.

 

The following reply was given by the Captain and Owners of the junk.

Personally appeared before R. Jenkins Consular Interpreter, Ung Kan-lang, master and owner of the Chinese junk named Kyin-yon-shin, and Hwang-men-you, the owner of the wood cargo on board the junk, and after having had the various articles of the libel of Alex. Smith, Henry Ingle and John H. Simpson read to them, they acknowledge their correctness, making only the following exceptions, viz:

1. That they are not aware of having made the statement in the last sentence of the Art. 1, about "their vessel being unseaworthy and their lives in danger;" but they now say that they might have said it then with truth.

2. That they were not witnesses to what is stated in Article 4, as they were below but not asleep, most of the time.

3. That they think the distance their junk was towed (Art. 5.) was not over 30 lee or 10 miles.

4. That the distance of the Pilot boat from the steamer Kiangse when she started with the junk in tow, was more than a thousand paces, something more than 3 or 4 cables as stated in Art. 9.

5. That in regard to Article 10 they say that they were put upon their own junk by the pilot-boat's crew, they were not permitted to remain there, but driven off by the crew of the steamer.

That they are not competent witnesses to the matters contained in the Articles beyond No. 10; but that the consider the sum claimed to be altogether too heavy; and that they therefore beg the Consul General to decide what proportion of their property should be restored to them, what proportion should go to the Pilot boat, and how much should be paid to the steamer Kiangse; and they are willing to have the case decided upon the evidence now in Court with or without further evidence.

To which statement they affix their Signatures in presence of T. JENKINS, Consular Interpreter.

Signature of Junk-owners [Chinese characters]

Mark of Wood-owners [Mark & Chinese characters]

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