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Colonial Cases

Cama and Co v. P&O Co, 1863

[shipping, opium]

Cama and Co. v. P. and O. Co.

Consular Court, Shanghai
Source: The North-China Herald, 4 April 1863



March 26th 1863.

Before W. MEDHURST, Esq., Consul.

CAMA & Co. versus P. & O. Co.

THIS action was brought by Plaintiffs to recover Tls. 159.98 the value of 45 ½ kegs of Malwa Opium short delivered on 354 chests shipped per Ganges to Shanghai.

Mr. LAWRANCE appeared for Plaintifs.

Mr. COOPER for Defendants.

Defendants pleaded Not Indebted.

Mr. LAWRANCE, after stating the purpose for which the action was brought, said it was usual for the Captain of the opium-receiving ship to examine the opium, together with an officer of the P. & O. Co's service, and if it were found correct, delivery was taken.  In this case the chests were examined, and it was found that out of 354 whole and 3 half-chests, 10 were more or less damaged to the amount claimed.  He should hand in a certificate to that effect signed by Mr. Pilbro an officer of the Ganges.  The question would turn upon the instructions of the Bill of Lading. The Company denied their liability on the strength of a clause in it to this effect:-

The Company will not be answerable for deficiency in the weight of opium in any chest unless it exceeds 10 lbs., and then only of the chest bears external evidence of being damaged or broken, and has been covered with double gunny.

The question was, whether the Company had the right to insert such a clause.  If they had, 9 lbs. out of every chest might be short, and the deficiency in the entire shipment would be most serious.  The Company might also state that they were not public carriers; but it was well known that they were so, in fact.

D. PESTONJEE, representing the firm of Cama & Co., said: - On the arrival of the Ganges, the opium she brought for us was transshipped to the Ariel. Ten chests were found broken, as per list handed in (B).  They were examined in the presence of an officer of the Ganges.

Mr. COOPER here objected that the statement of this officer could not be taken as evidence against the Defendants, and begged that a note might be taken of the objection; which was done.

D. PESTONJEE resumed: - The certificate signed by this officer was sent me by the Captain of the Ariel.  I acquainted Mr. Warden.  I shewed Mr. Warden the certificate (B). He did not dispute its correctness; but refused to give compensation on account of the clause in the Bill of Lading.  I have had consignments of opium by other ships.  I have a similar case of loss now by the Pekin. The certificate in this instance is signed by the Captain of the receiving ship. I have had other cases in which the certificate was signed by officers of the P. & O. Co. If many such cases occurred, in which the P. & O. Co. refused to make compensation, the loss at the end of the year would amount to a large sum.  My object inn pressing this claim is to know what rule to be guided by in future.  In the other cases of the ships I have referred to, there was no similar clause in the Bills of Lading.  Some of the marks on the certificate do not agree with the Bill of Lading, which is accounted for by an endorsement on the latter.

To Mr. COOPER: - I am manager of the firm of Cama & Co.  My only proof of the shipment of the opium is the Bill of Lading.  Two shipments came up together.  Bill of Lading A is the one containing the marks of the damages chests.  Bill of Lading C is of 50 other chests per same steamer.  I don't know that it contains any of the chests alluded to in the certificate B. The mistake in the Bill of Lading was only in the marks and numbers, not in the quantity.  I don't know the total number of cases contained in the shipment.  The number is always marked on the lid of each chest.  Mr. Pilbro would only know the deficiency in the number by the discrepancy between the contents and the number marked on the lid.  There would be a little evaporation in a case of opium.  I cannot prove the number of kegs shipped.  The number is always written on the lid in India.  Sometimes the number of kegs will differ from the number on the lid.  The quantity declared might have been the quantity shipped.

To COURT: - I did not see the cases when they were delivered.  I do not know how they were broken.  The chests are always marked in India, so I am sure these were.

E. J. DESLANDES, Captain of the receiving ship Ariel, belonging to Cama & Co., said: - I took delivery from the Ganges of 354 chests of opium.  The third officer of the Ganges came with some of the chests, which were broken, in order to count the contents.  He signed certificate B in my presence, as to the deficiency.  It is customary for an officer of the steamer to accompany broken chests.  Nothing was said by Pilbro about the chests not having originally contained the numbers inscribed on the lid.  I saw the chests myself.  Captain Wilkinson came on board the Ariel that afternoon on the subject.  He wanted me to take the chests without counting, as he wanted to sail the next day.  I refused. He was there while some were counted.  I never received broken chests without counting contents.

To COURT: - I did not see certificate written, but I saw it signed.  The officer found out the number of kegs short through the number marked on the lid.  Sometimes the contents of a chest may fall short of the entry on the lid by a keg or so; but they almost always agree.  All the chests we counted were broken.  All had been covered with double gunny.  All the sound chests of the same consignment were found correct.

To Mr. COOPER: - Chinamen are addicted to theft.  The opium could not have been stolen in transit from the steamer to the opium ship. They are transshipped by lighter.  The broken ones came by themselves.  I saw them come.  The marks on the lids as to the contents are taken as a certain criterion.  If the contents fall short I have to pay the difference.  I have paid several times; but the house has not charged me of late, as the difference has been too much.  I consider myself responsible to Messrs. Cama & Co. for every keg of opium short in an unbroken chest.

To COURT: - A keg weighs about 10 taels.  The gunny round the broken chests was torn, and in many cases, sewn up by ship's twine.  The number of kegs contained in a chest varies from 140 to 170; but Malwa is always made up to the same weight.

The case here closed for the Plaintiffs.

No witnesses were produced for the defence, but Mr. COOPER, in addressing the Court, said the Bill of Lading spoke of the w eight, contents and value of the shipment as unknown.  The construction to be put on this was, that the onus of proof lay with defendants, as to the condition and contents of shipments.  It lay, therefore, on the Plaintiff to show the contents of the chests of opium; but no evidence had been given as to what these contents were.  It was quite consistent with the evidence to suppose that there had been no abstraction.  If the Court thought otherwise, he should ask for an adjournment till the arrival of the steamer for the production of further evidence.  The P. & O. Company knew that the marks on the lid of the opium chests were no criterion as to their contents, and the clause refusing to be responsible for any deficiency under 10 lbs. on a chest, had reference partially to this and partially to the danger of theft from damaged cases by Chinamen.

Mr. LAWRANCE objected to the adjournment.  He could not see what evidence the Captain of the Ganges could give to upset Deslandes' evidence as to the certificate having been signed by an Officer of the P. & O.'s service.  The defence was certainly the shabbiest he had ever heard.  Every custom had been complied with; the third officer of the vessel had accompanied the chests to the receiving ship, and examined them, and had signed a certificate admitting the deficiency in their contents.  He contended that it did not lie with his clients to produce further proof that the opium was not shipped short.  Captain Deslandes' evidence was reliable, that, as a rule, the number marked on the outside of the chests could be taken as proof of the contents.  The Company relied on the clause in their Bills of Lading which had been quoted, to upset Plaintiff's claim.  But, at that rate, they might allow 9 lbs. to be abstracted from every chest they conveyed, and not be liable to make good the deficiency.  It was contrary to public policy that such a clause should be held valid.

A decision arrived at by the Court at home in the case of the Great Western Railway Co. held that, although Carrying Companies certainly had power to make contracts, such must be fair and reasonable.  He held that this clause was not fair and reasonable; and that there was sufficient prima facie evidence as to the deficiency to make the Company liable.  If it was necessary to adjourn, Captain Wilkinson could give no evidence affecting this latter point.

Mr. COOPER briefly replied in reference to the power of Carrying Companies to insert contracts in their Bills of Lading, denying that the case quoted by Mr. Lawrance made against his clients.

The Court held that there was proof of damage to the Opium chests, and the certificate was proof of deficiency in their contents.  Unless the P. & O. Company were prepared to give proof that damage did not occur, the Court could not allow the clause in the Bill of Lading to over-ride their liability.

Mr. COOPER here again urged his objection that the evidence of the third officer of the Ganges could not commit the Company to a course contrary to that laid down by them in their Bills of Lading; and after some further discussion, the Court consented to an adjournment till the arrival of the Ganges, to enable Mr. Pilbro to be brought forward as evidence.

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