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Colonial Cases

Lindsay and Co. v. Cama and Co., 1864

[shipping, salvage]

Lindsay and Co. v. Cama and Co., and Nicol Latimer and Co.

Consular Court, Shanghai
30 September, 1864
Source: The North-China Herald, 8 October 1864

 

H.M. CONSULAR COURT.

Friday, September 30th, 1864.

Before SIR HARRY S. PARKES, K.C.B., H.B.M. Consul,

H. A. THOMAS, Esq., R.N., J. S. COMPTON, Esq., R.N., Assessors.

LINDSAY & Co. versus CAMA & Co. and NICOL LATIMER & Co.

Claim for Salvage.

A discussion arose as to the jurisdiction of the Court in determining on the salvage of a vessel.  Mr. Robinson (for the defendant) put in the objection and quoted the merchant shipping act to prove that such claim should be decided by the High Court of Admiralty.

Mr. MYBURGH thought that the Court was guided by the Order in Council which gave the Consul power to adjudicate in any suit of a civil nature arising in the dominion of the Emperor of China.  By the general term "suits of a civil nature" general jurisdiction was given to the Consul.  The jurisdiction of a Consul in China is of a peculiar nature; it is ex-territorial.  He then quoted a case in which it was proved that the courts in the Ottoman Empire had admiralty jurisdiction, and argued that the Court here also had the same jurisdiction.  He submitted that the Court had full jurisdiction to judge this case.

THE COURT considered that the foreign jurisdiction act and the orders in Council were the authorities by which it should be guided, and not by the Merchant Shipping Act.  The O. in C. of 1863 limited the admiralty jurisdiction of Provincial Consular Courts by decreeing that a legal vice-consul should adjudicate.  Therefore, it might be a question whether this Court had jurisdiction in such a case.

Mr. ROBINSON on behalf of his clients said that if the Court would decide the case, they were willing to have it decided in this court.  He considered that at least, the court could decide the case as Arbitrator.

Mr. MYBURGH was of the same opinion.

THE COURT agreed to this arrangement and the proceedings were carried on in the usual manner.

Mr. MYBURGH said: - The claim was for salvage by Messrs. Lindsay & Co., and Mr. Bain, a pilot.  Mr. Bain was cruising about in a pilot boat below the light ship and saw a ship in a very extraordinary position.  He ob served as he approached her, some Chinese junks alongside with people moving about.  The Chinese went t off in an opposite direction when he approached.  He found almost everything cut away and destroyed by these wreckers; he sent his carpenter to repair damages.  The Vulcan fortunately came, and Mr. Bain and the owners of the Vulcan became joint savors and agreed to try to bring up the vessel.  While coming up there was a stiff breeze and tide against them, and the Vulcan was injured to the amount of some 80 or 90 Tls. Worth.  The Vulcan was going down on ordinary business, and Captain Bunker was hailed by a pilot who told him of the wreck and told him he might make a good thing of it, if he came down to her.  If he (Mr. M.) could shew that the Alice was abandoned by her master\, officers and curfew it would be much in the plaintiffs' favor.

The defendants might argue that the Captain went up to Shanghai for assistance, but that should be proved, and it appeared strange that he should leave his vessel to the mercy of wreckers and of the wind and waves.  He (Mr. M.) considered that he was entitled to, at least, 50 per vent on the value of the ship, &c., and that the peculiar circumstances in this instance should incline the court to allow a liberal compensation.  The total value was so small that even one half to the salvors would be a very small amount.

D. PARTRIDGE said: - I am Captain of the Lady Hayes.  I surveyed the barque Alice, and gave as my opinion that she was not worth the expense of repairing.  When I first surveyed her, she was on the bank.  I saw that she was a good deal injured.  If there were any wind, a vessel under such circumstances would go to pieces.

TO THE COURT: - As she now stands, I think the vessel is worth only Tls. 1,000.  The beams may have been broken on the voyage, but my opinion is that they were broken while the Alice was on the bank.  I think so from the fact of the rudder having been unshipped.

To Mr. ROBINSON: - I think the vessel would realise between 800 and 1,000 Tls; not more than Tls. 1,000.

The evidence, formerly taken of Captain Bunker of the Vulcan was then read by the Court.  From it, it appeared that the Alice was aground and completely water-logged when he came alongside.  But for the steamer, the Alice would not have got off that night.  It took about fifteen minutes to take the vessel off the bank.  At first, on the way up, the vessel would not steer, but on the next day, she did steer a little.  The Vulcan was engaged for 38 hours at the wreck.  He was offered Tls. 1,000 by Mr. Bain for bringing the Alice up, and afterwards a third of the salvage, but refused to agree to such terms.

W. B. BAIN, Pilot, said: - On the morning of Monday, the 15th August, I was cruising about in a pilot-boat at the entrance of the river.  I saw the barque Alice, and afterwards went to her.  She was lying, I think, about 10 miles N.N.W. of the light ship.  I consider that she was lying in a dangerous position.  She was on the ground when I went to her.  I thought she could not have had a pilot on board.  As I approached her I saw four Chinese boats alongside.  Three of them were fish-boats, and the other as Tsung-ming junk.  The latter's tonnage was about 50 or 60.  The others were from 6 to 12 tons.  They all started off when the pilot-boat appeared.  I went on board with one European, four Chinese and a servant.  I found no one on board.

All her running gear was gone; fore and aft; he rudder was unshipped.  I saw salt, glass and bark lying about the deck, and sails which had been taken out of the hold.  The vessel seemed to me to be a wreck.  I went in to the cabin.  Part of the cargo was lying about there.  The cabin was stripped of every thing and in great confusion.  The other hatches were open as well as the lazaret in the cabin.  Part of the seamen's clothing was also lying about the deck.  I saw a large hawser cut into about eight pieces; this must have come up from the hold.  I saw the hatches themselves; they were not broken.

The vessel had a very heavy list to port.  I sounded the pumps and found four feet of water.  She was aground fore and aft, but higher by about 18 inches forward than astern.  I found the rudder unshipped and the steering apparatus entirely gone.  I am my men set to work to do something for the rudder.  She would certainly have been unmanageable had she got afloat just then.  We were working the pumps the whole time until I put her ashore at Shanghai.  It was about 4 p.m. when the Vulcan came alongside.  I had gone on board at 11 in the forenoon of the same day.  During that time we were at the pumps.

The former captain of then baroque, his chief officer and carpenter and three lascars, besides Captain Bunker, came on board in a boat from the steamer.  I would not be sure that the carpenter and the chief officer came in the boat; I think they came when the Vulcan came alongside.  Captain Banker agreed to lend the services of his tug.  I considered myself salvor and did not give up charge to the Captain of the Alice.  He did not make any proposal to me to pilot the ship up.  I considered myself captain and owner for the time being.  The Captain broke in the door of the after-cabin.  It was locked and I had the key in my pocket.  We had some words about it, and I told him that I was in charge of the ship.  I asked him the reason for his breaking the door.  He said that he had been Captain of the vessel, but she being abandoned, that I had charge of her.  He said he thought it very hard that he should lose everything he had. 

Captain Bunker was afraid to come alongside at first; he did not think there was sufficient water.  I guaranteed him that there was sufficient water.  I said that if the vessel would float I would guarantee to take her to Shanghai.  He then came alongside.  As soon as I found the vessel move, I slipped the chain and we started.  I gave the order to my carpenter to unshackle the chain.  It was unshackled before the steamer made fast alongside.  We then proceeded to Shanghai and anchored at about 11 ½ o'clock that night, the light-ship bearing about S.W. by W. at a distance of 2 ½ miles.  We made about nine miles from the time we started.  I did not see the Light-ship until daylight.  I saw a light but did not know whether it was the Light-ship.  I saw a great many lights.  The only way to distinguish the Light ship's light from other lights is it brightness.  It is a white light.  When looking out for it, it can be distinguished, but I was not looking for it very anxiously that night. The other lights were junk lights.  There was a pretty strong wind all the time.

It was not very easy to steer the Alice.  I steered her b y tackles fastened to the tiller.  The wheel was broken entirely off.  I think the injury to the rudder was done through the bumping of the ship.  I anchored the vessel in four and a half fathom water.  I anchored the vessel in shoal water for fear she should go down before morning.  I did not then know the amount of damage done to the Alice. The Captain did not try to assume charge of the ship or deny my right to be in charge of her.  It was by my direction that we came to an anchor.  Every order came from me.  We got away again at about 9 o'clock that morning.  She touched merely, for it was then low water, but the tug got her off without any trouble.  It was high water when we anchored.  It was the top of high water at about 11 ½ o'clock on that day (15th).  Next morning I ordered the steamer to hook on.  The streamer drew her off and we started.  At about 5 o'clock, I got the men relieved from the pump by the pilot schooner cruiser.  I had kept the same men at the pump all the time.  I then proceeded and put her ashore at Shanghai at about quarter to twelve that night (16th). 

It was entirely on my own responsibility that the vessel was beached.  She was making water very fast.  It was too late to send on shore and get coolies, so I thought the best thing was to put her on the ground.  I remained on board until next morning, and then went on shore, leaving the carpenter to represent me.  I went on shore to ask the doctor about my leg which had been hurt by the Alice's hawser.  I don't consider the vessel would have kept together another night on the bank.  I kept an ensign flying from the mizen-mast from the time I went on board the vessel.  I took the ensign from the pilot-boat Rocket, in which I went to the Alice.  Finding the vessel abandoned, I took charge of her and considered myself owner.

To MR. ROBINSON: - I cannot say the exact time I boarded the Alice, but it was about 11 a.m.  High water on the 15th must have been about 11 or 11.30 a.m.  It would be high water again in the evening about midnight.  I took the Alice off at about 5 p.m.  I have seen the ebb tide run in the river for 24 hours.  I do not allude to the spot where the Alice was lying, I do not often go there.  The water does increase and decrease although it may be running in one direction.  It wanted about seven hours to high water.  It was nearly low water, not quite; the tide had begun to rise at the time I took her off.  I went on board at high water and took her off at low.  She was not afloat by any means when we took her off.  The tides are erratic both in their depth and flow, at Shanghai.  It sometimes rises 12, sometimes only 4 feet.  The Alice had an anchor out, but she was hard and fast on shore.  The Chinese boats shoved away directly the Rocket approached.  I saw no traces of any personal effects in the cabin.  I saw a broken table and two pictures, some charts and books strewn about.  The hatches were all open.  I did not see any sign of their being broken open.  I can't tell whether they were broken open or not. I can't say how they became open.  I saw no appearance of any bars; I can't say whether there were any battens.  There was less water when the Vulcan came alongside than there was when I went on board.  By saying that the rudder was unshipped, I mean that it was completely detached.  The rudder was unshipped before the crew left.

TO COURT: - Shears and a tackle were rigged with a view to re-ship the rudder.  I saw traces of an attempt having been made to re-ship the rudder.

TO MR. ROBINSON: - The steering apparatus was all gone.  I shipped the rudder on the centre gudgeon, sufficiently to enable us to steer.  I rove ropes to the rudder.  It was with this apparatus that she was steered to Shanghai.  I got part of the things from the Alice and part from the Rocket.  The vessel would have been unmanageable if she had been afloat; she had no running rigging rove.  She could have been steered by a steamer if the steamer had sufficient power, even if a rudder had not been rigged.

I offered the captain of the Vulcan Tls. 1,000 or a third of the salvage of trhe vessel.  He agreed to give me the services of the tug for one-third of the salvage, provided she got in safety to Shanghai.  If there had been no salvage, he would have had to run the risk, he could have claimed nothing.  The agreement was made about an hour or two before he took the Alice in tow.  It was inside on board the Alice. The captain of the Alice never asked me for the key of the cabin till he had broken it in.  I do not recollect what the captain said to me.  He said that having found me on board in possession, he considered I had full charge of her.  He further said that he had not intended to abandon her.  I did not think the man was the captain; if he had been so why didn't he come and report himself to me?  The Alice was in a very dangerous condition if I had not boarded her.  The captain's men did not pump, nor did the chief mate, that I saw.  In the course of the voyage to Shanghai, I did ask the chief mate to allow his men to relieve my Chinamen, and he did so.  He had three lascars.  I did not ask the captain of the Alice for permission to slip the cable when she began to move off the bank.

(Mr. Robinson asked a variety of questions in the endeavour to show that the witness had made two irreconcilable statements, but the Court said that it quite understood the force of both observations.)

Captain Rowe said she would not float twenty minutes, at the time we were getting her off.  I did not mean the vessel to ground; but I anchored in shallow water in order that I might be able to take to the spars and save life of she did so.  On the 26th, the steamer was anchored about a cable's length off.  She had steam up and came alongside without any one's orders.  If Captain Rowe did call the steamer alongside, I do not know of it.  Heinrich did ask me whether I would pay three men to work the pumps.  This conversation took place on the evening of the 15th, on board the Vulcan, whilst we were towing down.  The men had not been pumping previously.

I might have got her off with a fair wind, by getting assistance from the Rocket.  I could not have got her off as she lay, as she was in such a state.  I considered myself entitled to the ship, as a case of salvage.  I did not think, if I had left the vessel, that my right would have been the same.  After the vessel was in Shanghai, I did not try to take forcible possession of her.  The Captain put me down on the chain cable.  I was summoned to the U.S. Consulate for an assault which I never committed.

To Mr. MYBURGH: - The U.S. Consul told us that we were both to blame and were to pay the costs between us.  I asked Captain Rowe to hold up a board to the steamer, with the course marked on it, as I was unable to move myself.  He never interfered with me until we got into the river, when he wrote to me that he had no further need of a pilot.  I replied by letter.  There is no ground for the insinuation that I asked Captain Rowe's permission to slip the cable.

TO COURT: - There were four feet of water when I first went on board.  I was able to reduce it, till we got afloat.  When I put her aground she had 6 or 7 feet.  So long as she was aground I was able to keep the water under; but when she was afloat it gained on us slightly.  When I went on board she was ashore fore and aft, and I should judge was so still, when we got off.  I am quite certain she was so.  She had not changed her position.  I cannot explain the peculiarity with respect to the tides.  All the running rigging was gone, yards and all.  I first rove braces, with pieces of rope which I found oln board.  I should judge her head was about S.W., but I can not be sure as there was no compass on board.  The sails were all bent to the yards; but the gear was all cut.  We lashed the steamer alongside, and steamed ahead.  As soon as I saw her moving I let slip the cable.  The mate occasionally watched, steering the vessel, but without my permission.  He tried to replace the running rigging.  The lascars and Chinamen pumped and steered the ship among them.  I did not see the carpenter doing anything particular.

A vessel cannot enter Shanghai from the east, now the Bank is making up to Block-house island.  I am quite certain the vessel did not drift between eleven and five o'clock.  I sounded all round the vessel when I went on board.  There were twelve feet all round.  I trifle more aft than forward; nothing to speak of.  I sounded myself, and left the line hanging over the side, so that I could tell the rise or fall of the tide.  I did not see any one on board; I saw no live stock.  I slept on the poop of the Alice on the night of the 15th; I slept very little.  The Captain slept on board the Alice.  The Captain of the steamer invited him to sleep on board the steamer, but he would not.

J. BERGYSTROM said: - I am employed by the Shanghai Pilot Company as a carpenter.  I am generally in one of the cruising schooners.  I recollect going to a ship on the North Bank in the schooner Rocket on the morning of the 15th August.  I saw some Chinese boats alongside the vessel.  There was one big boat and three or four small ones.  I went oln board with Mr. Bain.  I went in a boat belonging to the Rocket.  We found nobody on board.  The deck was strewn with articles left about by the Chinese.  All the running rigging had been taken away.  The Alice was aground and leaning over.  The rudder was unshipped when we went on board and we had a great deal of work to ship it again.  The rudder was out of the gudgeons altogether.  The top gudgeon was broken.  In order to ship the rudder, we had a boat under the stern.  This was attended with danger.  We shipped the rudder on one gudgeon and steered in that way to Shanghai.

After the Vulcan came alongside, the Alice got afloat.  She had been hard and fast all day.  We worked day and night at the pumps until we got up to Shanghai.  The water was kept under by the pumps.  The Captain of the Vulcan received the order to come alongside from Mr. Bain.  At first the steamer could not come alongside; she came at high water.  I saw the Captain of the Vulcan and Mr. Bain talking together; I do not know what agreement they came to.  There was a good breeze at the time, not hard.  The weather was fine.  There was a short, chopping sea on.  The breeze may have freshened that night, but I did not notice it. 

We anchored at about 12 o'clock.  Mr. Bain gave the order.  Up to that time I had not heard the Captain give a single order.  Where we anchored we were aground a little, nothing to notice; the vessel did not bump.  Mr. Bain ordered the steamer to come alongside in the morning.  We then went up to Shanghai and beached her.  On that day also Mr. Bain was in command, and I did not hear the Captain give any orders.  Chinamen came on board that day to relieve the men in the Alice.  We had an ensign hoisted at the mizen-mast.  We got it from the Rocket.  I slipped the chain.  I had the chain unshackled before the steamer came alongside. I received orders from Mr. Bain to unshackle and to slip the chain.  The ship was beached by Mr. Bain's orders.  The lascars gave their assistance at the pumps on the first day when it began to get dark.

To Mr. ROBINSON: - I went on board with Mr. Bain in the Rocket's boat with four Chinamen.  There was no one else in then boat.  We kept the boat.  The boat pulls three oars; four sometimes.  I don't remember what became of the boat; she may have been sent back to the Rocket next day. 

When shipping the rudder I and two Chinamen were in the boat and Mr. Bain and the other two on deck.  When we commenced to mend it, the rudder was not shipped on one gudgeon.  We succeeded in getting it on one gudgeon; I am quite sure of that.  I sounded the pumps when I went on board.  We had not a correct line.  I imagine there were five, six or seven feet of water in her.  While at the rudder there was no pumping going on.  The weather was fine at that time.  There was less water in the vessel when the Vulcan came alongside than when I went on board first.  We had been pumping her for two or three hours.  The water in the hold was, I think, a foot lower.  I don't know whether any agreement was made between Captain Bunker and Mr. Bain or between Captain Bunker and the Captain of the Alice.  There was not sea enough to cause the vessels to sail dangerously.  The vessels bumped up against each other.  I did not see any of the Alice's crew work at the pumps.  I am sure that the chief mate did not go to the pumps.  On the 15th, on the way up, Mr. Bain was on the poop giving commands.  He gave orders about the course to be taken.  I do not recollect any other orders.  I was working at the pump.  I did not take notice who steered the vessel.  It might have been the chief mate of the Alice, I don't know. On the morning of the 16th Mr. Bain called to the steamer to come alongside.  I don't recollect the words of the order.  I recollect the Captain of the Alice holding up a board with something chalked on it to the steamer.  Mr. Bain had his leg hurt by the hawser and asked him to hold up the board.  I don't know whether Mr. Bain was holding it up.  I think this was on the first day; I don't quite recollect.

To Mr. MYBURGH: - Mr. Bain told me afterwards to look after the pumps.  Soundings were taken by order of Mr. Bain on the way up. Sometimes I did it; sometimes Mr. Bain.

SATURDAY, October 1st.

C. E. HEINRICH: - I was not summoned by defendant as witness.  I was a pilot on board the Alice.  I was on board at 2 o'clock in the afternoon of the 13th.  At about ten minutes past nine that night we got aground, Shanghai bearing N.N.E. nine or ten miles off, and the lower part of the dry North Bank bearing S.W. ½ W.  I had no intention of going there.  (Witness shewed by the chart the course he took from the Saddles and how he got on shore.)  There was another barque nine miles to the northward of us.  I have been pilot on this river for three months.  When I struck I told the captain I thought I was on the South Bank.  I found a difference of one point between the ship's compass and the tug's compass.  In the morning we saw the ball of the Light-ship.  Did not see the light.  I consider the strong northerly tide the cause of our going ashore.  The night was clear.  The vessel got aground fore-and-aft.  She was nearly oln even keel.  There was a heavy sea on and she struck pretty heavily all night.  She made from nine to eleven inches of water per hour.  In the morning the wind and sea increased. We thought there was a danger of her going to pieces.  At about six in the morning the rudder unshipped from the upper gudgeon.  We got a tackle and lifted it up, not for the purpose of shipping it but to keep it from doing more damage.  In about ¾ of an hour after the Captain said he would leave, he did quit the vessel.  We put whatever we could into the boat.  The Captain asked if it was advisable to stop.  I told him I would remain by the ship if he would leave me the small boat and crew, and the chief mate and carpenter offered to stop with me; the Captain said if any one stopped he should be the one.  I then told him if he would give me a boat I would go to Woosung to procure steam.  He asked me how long she would last.  I said that, as the wind then was, she would not last another tide.  He said that we should all take the boats and leave her.  He would not let the chief mate and myself stop in the vessel. We then got a junk and went up to Woosung.  I did not think when we left that we should find the ship again.  I did not think the captain thought so either, because he said he did not expect to find the ship again. 

Before I left I told the Captain that if Chinamen got on board she would be dismantled by them and made worth nothing, and if foreigners found her she would be claimed by them.  This was after I had offered to stay on board the Alice.  We found the Vulcan at Wusung and I went on board with the carpenter and chief officer of the barque to engage her.  I saw the Captain.  I told him that there was a junk on shore, and that I thought he could do something if he went down, if she were still holding together.  The Captain of the Alice told us to go to the Vulcan. There was no agreement made between him and the Captain of the Vulcan.  Captain Bunker said that he might have a tow that afternoon but if not he would go down to the Alice.  I sent the boat back for Captain Rowe who came on board with his wife and three men. Captain Bunker told Captain Rowe that he was not disengaged.  Captain Rowe explained the situation of the vessel to him and told him that he might make a good thing of it if he went down, but if the vessel were broken up he could expect no recompense from him.

I think it was between three and four in the afternoon when we started from Wusung and went down to the Alice.I think it was about 1 o'clock when we went on board the Vulcan.  When we got down to the Alice, we found her aground.  I did not think there was water enough to go alongside.  Captains Bunker and Rowe, myself, and the carpenter and chief officer of the Alice went on board and found Mr. Bain in charge, with his carpenter and four Chinamen.  I noticed that the vessel was partly wrecked and the rigging all gone.  The rudder was in nearly the same way, except that the tackle was taken out of the shears and the rudder was shipped in one gudgeon.  Captain Rowe did not take charge.  Had he done so, I should have considered myself pilot.  It was understood that I should pilot her up, if we found the vessel all right.  Mr. Bain gave orders to the tug and he told me he would not have been there had he known I was pilot of her. This, I am aware was mere compliment.  I assisted to bring the ship up, I received all orders from Mr. Bain.  Captain Rowe broke open the cabin door and Mr. Bain jumped down and said that he should not do that, for he was captain, owner and pilot of the vessel.  Captain Rowe said he supposed he was, but that he thought he had some right there as he was former captain of the ship.  That was the way I understood him; I am not sure that he used those words.  Captain Rowe did nothing that I know of.  Mr. Bain ordered the ship to be beached.

To Mr. ROBINSON: - I have met Captain Rowe once or twice.  When I left the vessel the carpenter told me that there were, I think, five feet of water in her.  When the captain proposed leaving, I fully agreed with him.  I should decidedly have objected to remain on board myself without a boat.  I got to Wusung at about 10 ½ or 11 o'clock.  I had been there for about two hours when the Vulcan came down.  I think it was afternoon then.  I was sent on board the tug with the chief mate and carpenter.  We went alongside the Aerolite in the Vulcan.  The Aerolite was about a mile and a quarter beyond No. 8 buoy at Wusung.  We got to the Alice at about 4 or 4 ½ o'clock.  I piloted the Vulcan from the Light-ship to the Alice.

When I got on board Mr. Bain and the Shanghai Pilot Company's carpenter were at work at the rudder; they were trying to fix it on the gudgeon by the help of two wedges.  I did not see any tackle rove to the rudder.  About an hour afterwards ropes were rove.  They were used to steer the vessel on that day.  I saw, on the night of the 15th, Chinamen, Manila men and the carpenter of the Alice steering her.  I am a qualified pilot, subject to the rules of the National Pilot Company.  The proper time for a pilot top leave his ship is when the vessel is moored in Shanghai.  I think the Shanghai Pilot Company's pilots get discharges from the masters of ships.  I did not consider Captain Rowe captain of the ship after he gave her up.  I heard part of the conversation between Mr. Bain and Captain Bunker on board the Alice.  Mr. Bain said he would give Captain Bunker Tls. 1,000 or one-third of the salvage, and run the risk.  It was soon after we came on board when this conversation took place.  I was in Court yesterday when Mr. Bain was giving his evidence.  I had doubts about the ship being saved by the steamer.  I thought it probable that she was float.  I sounded once or twice while she was on the bank.  The vessel was ashore fore-and-aft.  I saw the carpenter of the Alice at the pump once, and once ort twice at the wheel tackle.  The [rest] belonging to the Alice gave some assistance.  They could have been dispensed with and were not necessary to take the ship up to Shanghai.  I would not have allowed them to work.  The crew of the Alice could have taken the vessel up to Shanghai with the help of the Vulcan without the assistance of Mr. Bain and his men. 

Captain Rowe did not claim to be captain of the Alice when Mr. Bain said he was captain and owner.

To Mr. MYBURGH:- If I had known that there was any one on board the Alice, I should not had gone down with captain Rowe; I would have procured a steamer and gone on my own account.  I went to the Vulcan to persuade the steamer to go down, knowing at the time that if she went, it would be for salvage.  We had no one else to pull the boat, so the first officer and carpenter came to the Vulcan.  We had three lascars also, but there was a strong tide and the mate and carpenter volunteered.  We had one or two lascars in the boat who were not pulling.

TO THE COURT: - The junk men brought me into Wusung readily.  They treated us well when in the boat, but had some hesitation in letting us on board at first, not knowing us.

This closed the case for the plaintiffs.

Mr. ROBINSON said that instead of making any observation then, he would wait until his witnesses were examined, when he would sum up the whole.

JOHN DAVIES, carpenter of the Alice: - when I left the Alice, I left with an intention of returning.  She was on shore at the time.  I left my own personal effects on board.  I returned to the ship; and went on board in company with Captain Rowe, Captain Bunker, the pilot Heinrich, the mate Downer, and one lascar.  We of the crew went to work, by the direction of Captain Rowe.  Before the ship was off, I heard the pilot Bain ask Captain Rowe "Have you any objection to my slipping the cable?"  The Captain told him to do anything that was for the best to get the ship off.  I assisted in working the vessel during out passage to Shanghai.  I have been on board other vessels with pilots on board.  Captain Rowe gave orders to his crew in the way in which a captain generally does with a pilot on board. When I went on board, the rudder was slipped by one pintle.  There were no ropes rove to it at that time.  They were rove afterwards by Mr. Downer and three lascars belonging to our crew.  I saw them do it.

To Mr. MYBURGH: - We left the Alice because we did not think it was safe to stay in her.  We expected her to go to pieces shortly; the wind was rising.  We left the ship in two boats; we pretty well filled them.  There were thirty-two of us.  It would have been impossible for us to take our personal effects in them.  The captain took away his chronometer and sextant; I don't know as to anything else.  Some of his wife's clothes were taken in the boat too.  He could not have taken all his effects; there was no room.  When we left, I thought the chance of seeing the ship again was very small.  After we got off that night, the steamer steered the Alice altogether.  There was no one woerking on the rudder.  There was no attempt made to get the rudder into working order that night.  I saw Mr. Bain's carpenter and four Chinamen; they were working at the pump by Mr. Bain's order.  They were afterwards relieved by four others from one of the pilot boats.  We had a pilot of our own, Mr. Heinrich.  I do not know whether he took orders from Mr. Bain.  Mr. Bain was at the poop; of our ship, Mr. Heinrich was in the steamer all the time.  I never knew the pilot of a ship go into the tug.  I suppose he was piloting the steamer.  I do not know from whom the Vulcan took the order to come alongside.

There was a middling breeze when we came away; it caused the two vessels to bump against each other.  There was risk of the steamer injuring herself.  When she found that she was bruising herself, she cast off and both ships anchored.  I do not know whether it was Mr. Bain or the captain of the steamer who gave the order to cast off.

To Mr. ROBINSON: - We left the ship on Sunday the 14th.  Neither of the two boats would have held all the crew.  If any body had stopped on board, it would have been necessary to leave a boat for them.  We should not have left the ship at all, had there not been imminent danger.  I believe the carpenter who came with Mr. Bain belongs to the company.  Mr. Bain asked the second four Chinamen to come.  We could have done without them.  There was danger in towing on the night we set off, on account of the sea working the two vessels - danger of their injuring each other.

TO THE COURT: - We left the vessel with the intention of returning to see whether there was any of her left.  The crew requested to be allowed to leave the ship.  The Captain agreed with them that it was not safe to stay by her.  The Alice got ashore about 0.30 p.m. on Saturday.  We had a pilot on board, Mr. Heinrich; he had boarded at about 2 p.m. on Saturday.  It was blowing pretty fresh on Saturday night.  It was blowing pretty fresh; a clear night; we were carrying top-gallant sails.  There was a man in the chains.  The steersmen relieved each other there; there were three.  We had top-gallant sails set and all plain sail.  As soon as we got ashore we clewed up the top-gallant sails.  By the time this was done, she got off; she ran over the bank.  In fiver minutes more, she struck again, and we clewed up all sails.

The anchor was let go directly we got off the first time, before she struck again.  The ship bumped heavily during the night, until we quitted her, never floating again.  She made much water during the early part of the night, but did not make so much towards morning.  It blew very strong.  This did not injure the ship.  We thought if we stayed on board any longer that it would blow too hard to get away in the boats.  We saw one island. The vessel's rudder was unshipped when we left.  There were nineteen inches of water in her; we pumped every two hours and easily kept the water under.  The rudder unshipped about day break.  We tried to ship it but we could not, as the sea was throwing it about.  If the boats had gone under the stern they would have been smashed.  I don't know how the ship's head bore.  The only boats we had were a long-boat and a gig.  The pilot advised the Captain to leave.  From the way she bumped we thought she would go to pieces in two or three hours after we left.  We had no great difficulty in getting into the boats.  We intended to go back to see what became of her.

It was on Sunday morning when the wind rose, that we first thought of leaving the vessel.  I took a few changes of clothes with me.  I don't know what the others took.  The Captain and mate would not allow the lascars to take things with them, for the boat was full.  Twenty-one men went in the long-boat and eleven in the gig.  The latter pulls four oars.  There was a steam-boat in sight.  I did not see a light-ship. The long-boat took the gig in tow which nearly got swamped and we were obliged to cast her off.  The gig then pulled, and the long-boat sailed up to a junk lying at anchor; we boarded her, and the Captain asked them to take us into Woosung, which they did and we reached Woosung on Monday morning; we were well treated on board the junk. 

We did not want the fresh hands that came on board, for the mate, three men and myself were sufficient to steer, pump and take the ship to Shanghai.  Two men could have pumped the ship.  There were four men continually at the pump until we came up to Shanghai.  Our men and the Chinamen pumped watch and watch about.  Captain Rowe told out men to pump.  I don't know who told the Chinamen.  On the evening of the 15th, when I got on board, she had 6 ft. 4 in. of water in her.  On the 16th I sounded continually whenever I was at trhe pumps.  I found 6 ft. 2 in. and afterwards 5 ft. 11 in. water in her.  We did not allow the water to gain.  When I came down to the Alice in the tug, I went on board and walked about.  Captain Rowe did not tell me to do anything.  I helped to lash the tug alongside.  There were empty boxes strewed about and some of the cargo also which had been taken out through the hatches.  When we left, I am sure the hatches were battened down.  When we got up to Shanghai, the tug sides were chafed white and the Alice's rail broken away.  The Alice is built of oak.  Our own crew, some of the Chinamen, and, I think, a few hands from the steamer, hove up the anchor on the morning of the 16th.  Our own crew alone steered on the 16th.  The Chinamen did not steer.

J. ROWE said: - I am master and part owner of the Alice. On the night of the 13th August she went aground, and on Sunday morning, at about 9 o'clock, we left her.  I saw no chance of assistance coming.  The tide was falling and the wind was rising, so I thought it would be dangerous to remain by her.  I thought the best was to save property was to get to Woosung.  I left, intending to go back with assistance, as I told the officers.  My officers and crew and the pilot advised me to leave the vessel long before I did so.  I got to Woosung at about 11 o'clock on the following day.  We were not there more than quarter of an hour before the Vulcan came down.  We had had some rice on board the junk before that. 

The ebb had, I believe, commenced to make.  I made preparations to go up to Shanghai, not getting assistance at Wusung.  I told Mr. Heinrich to hail the steamer when she came down.  She stopped.  The pilot asked him where he was going.  He said: to the Aerolite; the pilot told him that out ship was on the North Bank.  Captain Bunker said that he would go to the Aerolite and come back again.  He then seemed to alter his mind and told us to send a boat aboard.  The pilot went aboard and came back again.  I then went on board and told Captain Bunker that my ship was on the North Bank, and asked him whether he would go down to get her off.  This he agreed to so, if possible, or to save what he could.  We went down past the Aerolite.  On board the Aerolite they said that they would steam next day.  We then went back to the Alice at 4 or 4 ½ o'clock.  I sent the mate, carpenter and some men on board; I went also with Captain Bunker.

When I got alongside, I saw Mr. Bain, a man he called carpenter and some Chinamen.  The Chinamen were pumping and Mr. Bain was on the poop.  I went in the first place to the cabin and found everything stripped.  I found the door closed.  Mr. Bain s aid that was his cabin.  I dashed open the door and went in.  I gave him to understand that I looked upon him as nothing more than a pilot.  I did not think it any use to quarrel with them, thinking that the steamer might, in that case, go away, and we be as badly off as ever.  I gave orders to the crew, as usual.  I told my officers and men that they were to work as hard as they could to get the ship into port; and they promised to do so; the orders I have to my officers I gave in English.  At about 7 or 7 ½ o'clock the steamer was lashed alongside.  After about quarter of an hour or twenty minutes tugging, at the top of high water she came off.  We towed until about midnight when the steamer cast off and we anchored.  In the morning the vessel was aground.  The anchor was helped to be heaved up by men from the steamer.  We had no hands to spare from the pumps. 

On the 15th, afar we were lashed alongside, Mr. Bain asked me whether I had any objection to slip the chain.  The chain was slipped.  After towing for some time, the breeze began to freshen.  I told my men to reive new wheel-ropes.  I told Mr. Bain and captain Bunker to draw ahead.  A little while after starting, Mr. Bain, who was forward on the forecastle as pilots generally are, to look out, found that the hawser was chafing.  While making it all right the hawser jerked and hurt his leg.  He came aft and said he was hurt.  I told him he could sit down, that I would look out and that he need not go forward.  He asked me to let them know there were to steer W.N.W. I think.  I marked the course and held it up to my steamer.  When we came to shoal water, I told him it was better to have the steamer alongside.  He asked me to tell them, which I did.  In the morning we beached her.  I pointed out the place as being the best.  The pilot said "We had better put her here in the bank, Captain Rowe."  I said "Yes certainly."  He, as pilot, would be the first to suggest such a thing in any other ship.  Mr. Bain remained on board for three or four days after and then left, sending another man to relieve him.  The carpenter and two men (lascars) went on board the Vulcan with the pilot.  I told them and the pilot to go.  I gave express directions to the pilot that he should send the boat back immediately.  The Alice was not steered by her own tackles on the 15th; the steamer was lashed alongside. I saw the order of reiving the ropes to the rudder executed, and assisted myself.  I believe the Alice is insured. 

It was my duty that took me back to the Alice.  As a matter of interest it was immaterial to me, whether or not I returned to her.  I am sure she was insured for 10,000 rupees in one insurance office and I believe in another also. (A discussion ensued connected with the estimates of the value of the ship, cargo and freight.  The total value of the ship and cargo was Tls. 4,143.42.)

To Mr. MYBURGH: - When I left the ship on the morning of Sun day, I did not think the vessel would go to pieces in a few hours.  The pilot thought she would go to pieces faster than I did.  I did not think she would last the day and night with that wind.  I did not expect to get steam until I got to Shanghai.  I was never here before, so did not know what to expect.  The pilot expected to get to Shanghai next day.  If the weather got finer, I should have expected to see the vessel on coming back.  If I had been certain of the vessel holding together, I would have sent the second mate with a boat for assistance, and have remained on board myself.  The pilot, first mate or carpenter did not offer to stay on board.  I did not mean by "making a good thing of it" that the captain of the Vulcan should make a salvage business of it.

My reason for keeping Mr. Bain on board after the quarrel, was that I thought he might have been a better pilot than the other who put the vessel on shore.  The Vulcan agreed to take the Alice off for no special sum.  I said to the captain of the Vulcan that if he found the vessel broke up, he would get nothing.  I don't think, on that night. The vessel would have gone to pieces if the Vulcan had not gone down.  Mr. Bain suggested putting the vessel on shore, and I agreed.  Had I objected, he might have said, the captain is mad, and taken no notice of me; and I should have been mad had I said so.  I remember Mr. Bain relieving his four Chinamen.  I did not then tell Mr. Bain that I did not want his men.  Mr. Bain remained on board some time after we were beached.  I suppose he was there to look after his own interests.  I know that he and the Vulcan were making a claim for salvage service.  I asked my solicitor whether it made any difference whether he remained on board or not.  He remained on board until he got three agreements from Messrs. Cama & Co., Frazer & Co., and Nicol Latimer & Co.  I told my solicitor as nearly as I can remember what I told here.

TO THE COURT: - I think the reason we anchored on the night of the 15th was because there were no light to be seen, and the vessels were knocking against each other.  I think the pilot told the steamer to cast off and I looked to the anchor.  If the captain sees nothing going wrong he has no right to interfere with the pilot.  I asked the pilot how much water there was, and he said 4 ½ fathoms.  I made no objection to his anchoring or to his statement of the water.  Both of the pilots said 4 ½ fathoms.There was no attempt made of any kind to stir the vessel on the night of the 15th; the steamer was steering entirely.  The pilot said that it would be high water at about 9 o'clock.  The water had been falling for about half an hour before we left the vessel.  It was about three quarters flood when we floated.

THURSDAY, October, 6th.

The case having been resumed,

J.  R. DOWNER, first officer of the Alice said: - I remember the 13th August.  We had a fair wind on that day, so that there was no reason for our grounding except a mistake of the pilot Heinrich.  I did not volunteer to stay on board with the carpenter and Mr. Heinrich, provided that captain gave me a boat and crew.  I did not hear Mr. Heinrich volunteer to stay on board.  I thought at the time that he was more anxious to leave than anyone else.  When we arrived at Woosung, Captain Rowe told me to go on board the Vulcan.  The pilot, the carpenter and two lascars were in the boat.  I was offered by Captain Rowe to go with a chronometer, a sextant, and a few other things in the boat and put them on board the Vulcan, and send back the boat with the lascars for him and his wife.  The carpenter went back in charge of the boat.  The captain of the Vulcan agreed to go to the Alice.  We arrived at the Alice between 5 and 6.  The captain of the steamer, Heinrich, Captain Rowe, the carpenter, myself and a lascar went on board.  When we went on board we found Mr. Bain on the poop and Chinamen working at the pumps.  Both pumps were going.  They were not pumping very fast.  There were over half a dozen Chinamen pumping.  Every thing moveable was gone, the hatches open, the cabin stripped of every thing that could be taken out, the running gear gone and the deck strewn with things.  The hatches were battened down when we left.  They were nailed with composition nails and tarpaulin over them.  They had no bars over them.  All the cargo that could be removed without moving the timber, had been taken.

Before we left, we had got shears ready for the rudder.  We found them there when we came back and the rudder had been shipped.  There were no ropes rove to the tiller when we came back.  The crew of the A lice assisted on board.  The pumps were kept going continually from the time we got off until we got up to Shanghai.  I pumped myself.  The carpenter and the three lascars also pumped.  Our crew continued to work as usual on board the ship.  On the 15th the Alice did not steer at all, the Vulcan steered her.  No attempt was made to use the rudder.  The rudder was first used on the 16th, when the steamer was sent to tow ahead of the ship.  I prepared the tackle for the rudder myself, assisted by Captain Rowe and the lascars.  Mr. Bain had nothing whatever to do with it.  To use this tackle, two men had to stand on each side of the rudder.  Up to the time this tackle was in working order, the steamer had towed alongside; she was then sent ahead.  The water was then quite calm.  I don't know what time in the morning the steamer went ahead.  She towed that way for about four hours, and came alongside a short time after noon.

When the Vulcan came back, she did not chafe against the Alice. Mr. Bain's carpenter slipped the chain and let go the anchor when getting off the bank, and helped to make fast the vessel.  I don't know anything he and his men did, except pump and steer.  Captain Rowe commanded as usual.  Mr. Bain applied to me for a man to assist in pumping.  After coming to Shanghai and mooring the vessel, a squabble arose between Mr. Bain and Captain Rowe.  Mr. Bain interfered with an order of Captain Rowe's as to the anchor.

To Mr. MYBURGH: - The night before we left the Alice there was rough weather, a high wind and a heavy sea.  The vessel bumped very heavily during the night.  At the time we left, she had nineteen inches of water in the hold.  It was not safe to stop in the vessel.  We had not boats to live in such a sea.  We left because we were afraid the vessel would have gone to pieces and to get assistance.  I had every reason to believe at the time we left that the ship would go to pieces.  I did expect to see the vessel when we came back.  We went to the junk to procure assistance.  The junk would have been of assistance could she have got up to windward.  We could have remained on board if the junk had been close for us to get off to.  As the weather was then, I thought the ship would go to pieces before next morning.  It was blowing very fresh all the afternoon.  The pilot Heinrich said there were always steamers at Wusung.  The weather was moderating and at Wusung.  I expected to find the vessel and save some of the cargo.  I thought some of the vessel might have broken away. 

We went down in the steamer to save everything that was there.  I saw the rudder that afternoon.  I'll swear that I saw n o rope whatever rove on the tiller.  All that had to be done by Mr. Bain was to lower the rudder down.  It had been placed ready on the shears by me.  I did not hear the order given to the steamer to come alongside, nor for the cable to be slipped. I think Mr. Bain gave the order to anchor that night, he being the pilot.  Heinrich was not our pilot then.  He was on board the steamer.  I do not recollect Mr. Bain's four men being relieved on the 16th.  I was not alseep on that day.  I have been living on board the Alice since she was beached here.

The Captain and I only spoke a few words about this salvage case.  We used not to speak about it every day.  It was no interest of mine.  I never heard Captain Rowe speak about Mr. Bain.  He might have mentioned his name.  I never heard him say that if possible he would serve Mr. Bain out.  I heard Mr. Bain say that if he had it in his power he would put Captain Rowe in jail like a dog.  Mr. Bain's four men and his carpenter received all their orders from him.  Before leaving the Alice, I hoisted an ensign with union down, from the gaff.  When I came back, I saw an ensign flying from the mizen-mast head.  Mr. Bain said it was his ensign.  I believe wreckers had been on board.  The ensign halyards were lying about loose.  They had been cut.

To Mr. ROBINSON: - By "two or three words," I meant that I have only occasionally spoken with Captain Rowe about the salvage.  I don't know whether the ensign was mine or Mr. Bain's.  I don't recollect the fresh hands coming on board.

TO THE COURT: - One of our boats was a long-boat, the other was a gig.  The boats were sound but could not carry such a number.  It was on account of the sea that they would not live, not because they were unsound.  The long boat was a very heavy boat.  Some things of the Captain's were put into the boat without the Captain or me seeing them.  The Captain chucked them and some things belonging to another man overboard, when he got into the boat.  I was in charge of the gig, and the carpenter was with me.  I took a few things and the men did also.  It took us more than an hour to pull to the junk.  We went before the wind.  The long-boat sailed and the gig pulled, I thought she would have been swamped.  If one boat had gone to the junk and the other remained, it would not have got to the junk afterwards, had the sea become rougher.  The junk would not go back to the vessel.  We went up to Wusung.  The junk was the only junk in sight.  I recollect seeing a low island.  The vessel was lying the same way as before when we got back.  She was heading north and south.  Before we left the rudder was thrown about and we had lifted it up with a tackle.  It had been let down and was moving easily when we came back, because the weather had moderated, not because she got into deeper water.  She might have got into shoal water.  When we got back the vessel was afloat aft, with her head on the bank.  When putting the chronometer, sextant, &c., on board the Vulcan, I did not speak to any one on board, so that any arrangement was made by Captain Rowe.

Mr. MYBURGH wishing to prove the signature of a receipt from the junk,

NICHOL LATIMER said: - The owners of the junk had applied for reward for bringing up the people of the Alice.  They received $200.  This is the receipt.  (Receipt handed in.)  This statement (handed in) is a correct statement of the value of the ship, cargo and freight.  The total is Tls. 4,646.68.  The charges are those usually made by merchants here.  These values (handed in) are the gross values.

Mr. MYBURGH thought salvors were entitled to claim upon the gross amounts, and he therefore disputed certain deductions made in the valuations of the defendants from the value of the cargo and freight.

Mr. LATIMER thought that salvors were entitled to claim only on the value which the owners would receive for the cargo.

To Mr. MYBURGH: - We are not agents for the ship.  We are agents to the charterer and for a part of the cargo.  In paying the junk I did so at the desire of the Captain.  He had the best right to do so.  Messrs. H. B. Cama & Co., the agents of the vessel, sent the applicants from the junk to me.  I think a portion of the cargo consigned to me is insured in an Indian office.

Mr. ROBINSON summed up the evidence, and stated that the defendants had been quite willing to pay a reasonable sum for the services rendered by the plaintiffs; but that as agents for absent parties, they did not feel justified in assenting to the payment of 50 per cent of the value of the ship, cargo and freight, which had been claimed by the plaintiffs, and which was, he said, the highest sum awarded to the most meritorious salvage services.  He contended that the Alike was not derelict, and cited the case of the Aquila and other authorities to shew that where a master left his ship on the coast, with the intention of procuring assistance and returning to his ship, such a ship was not by law considered derelict.  The intention of Captain Rowe to return was, he said, clearly proved by the plaintiff's witnesses, as well as his own, and was carried into effect.  He stated that neither "derelict" nor "salvage" conferred any property on the salvor, and submitted that the conduct of Mr. Bain in opposing the authority of Captain Rowe was most improper, and diminished, if it did not destroy, his right to salvage remuneration; in support of which proposition he cited various authorities.  He con tended that the ingredients of salvage services, as defined by Sir J. Nichol, existed in the slightest degree in this case, and that the salvors were consequently entitled to small reward. 

There was no personal danger to the salvors, but trifling danger to the property actually  saved, all that could be taken had been taken, no particular skill had been shewn by the plaintiffs, and the salvage was really due to the activity of Captain Rowe in procuring the assistance of the Vulcan, without which Mr. Bain could have done nothing.  He cited the cases of the Sir W. Beckford and the Nicolas, and contrasted the risks of the salvors in these cases with those in this case, and submitted that the exorbitant demand made by the plaintiffs compelled the defendants to resist this claim.  If such services were to be highly remunerated, how were dangerous salvages to be rewarded.  The Chinese junk which conveyed the crew of trhe Alice to Woosung, had considered $200 a sufficient reward, and that sum had been paid to them.  He thought a sum should be fixed as a proper remuneration for the services rendered by the plaintiffs, and then deduction should be made for the misconduct of Mr. Bain, the extravagant claim of the plaintiffs, and the value of the material services actually rendered by the Captain and crew of the Alice, to which her rescue was greatly attributable.

Mr. MYBURGH said that in a case tried at Nisi Prius before twelve common jurymen, it was customary and necessary perhaps to recapitulate the evidence that had been adduced at the trial.  To do so before a Court constituted as this Court is, would be mere waste of time.  In every case of such a nature as this there must be discrepancies, if not contradictions, in the testimony of the witnesses; but the discrepancies in this case were unimportant and of so trivial a nature that they did not tend in any way to discredit the witnesses for the plaintiffs.In all important particulars they agreed, and were corroborated by the witnesses for the defendants, whilst there was this to be said for the plaintiffs' witnesses, they neither colored nor exaggerated facts to which they spoke; whilst the two principal witnesses for the defendants were evidently influenced by the strongest feelings of self-interest and of prejudice, if not of actual hostility, towards one of the plaintiffs.

He (Mr. M.) submitted that the plaintiffs were fully entitled to the per centage on the gross value of the ship, cargo and freight which they claimed.  There was every proof that splendid and meritorious services had been rendered, and these services having been rendered successfully in the case of a derelict, entitled the plaintiffs to one moiety at least, that being the amount usually awarded by the High Court of Admiralty in analogous cases. It was quite true that to establish a case of derelict there must be no animus revertendi aut spes recuperandi. In the case before the Court was there either.  He (Mr. M.) maintained that although the witnesses for the defendants stated there were both, as to the first, it was a mere afterthought, and could not have existed at the time of their leaving the Alice in the perilous situation she was in, for they stated that they expected her to go to pieces in three hours, or, at best, that another tide would be as much as she would keep together through.  But it would be for the Court to say whether the intention existed at the time of the abandonment of the ship, if, if it did exist, whether it was reasonable and fell within the definition of animus revertendi, for the evidence shews that not one had a hope of seeing the ship as they had left her.

The captain and pilot told Captain Bunker that they thought he might make something by going to thr wreck.  That shews that they expected to find little more than the spars and the timber forming part of the cargo floating about near the scene of the wreck.  It must be observed that the captain and curfew placed in the boats whatever the boats could contain.  One thing was quite clear, and that was that if there was a chance of the captain finding his ship as he had left her, he would have left one boat and boat's crew and would have sent the other to Shanghai for assistance. 

A case in point, supposing the captain and crew did leave to get assistance, was the Coromandel and Swabey Report, very analogous to the present, in which it was held that "where the captain and crew leave the vessel for the preservation of their lives, a mere intention of sending a steamer to look for the vessel does not prevent it from becoming a derelict."  That case defined the cases in which the intention of returning in the hope of finding the ship abandoned, were rational.  All the ingredients of a salvage were found in the case before the Court.  There was enterprise in Mr. Bain and in the captain of the Vulcan in assisting the Alice when in distress and in rescuing valuable property.  The property was rescued from most imminent peril.  Had the Vulcan not come to the assistance of the Alice on the night of the 15th, she would certainly have received so much additional injury that it would have been impossible to get her off the bank on the next day.  The Vulcan in going down took the risk of bad weather coming on, with the breeze blowing on the night the Alice got off.  It was evident that the Vulcan was severely injured.  The injury was not to be estimated by the amount of the repairs, but by the depreciation in value of the tug.  Great skill and labor had been required and displayed by the sailors.  Nothing that could have been done by Mr. Bain, the Vulcan, and his assistants, was left undone. 

The Court would not overlook the fact that by the presence of Mr. Bain, the wreckers, who had already plundered the Alice of the running rigging and of everything moveable on which they could lay hands, were deterred from repeating their visits and perhaps scuttling her effectually. Some weight would be given to the fact that the expenses and remuneration for tug-boats and nautical men were so much greater in Shanghai than in England, and that the sums given by the Court of Admiralty must guide the Court in a qualified manner only.  And with reference to the state of things in Shanghai, at the best and with the most liberal reward, the plaintiffs would receive little more than ordinary remuneration, but to this remuneration they were clearly entitled.  Property to a large amount had been risked to save property that turns out to be worth little more than Tls. 4,500.

And if the Court acted upon the principle adopted by the Court of Admiralty, in which it had been stated repeatedly that consideration for the public, the benefits and security of navigation and other circumstances rendered it proper that a salvage reward should be made upon the most liberal scale, a very liberal reward should be given to the salvors.  Nr. M. then quoted authorities to shew that it was a settled doctrine of the Court of Admiralty that no pilot is bound to go on board a vessel in distress to render pilot service for mere pilotage reward; also to shew that the loose conversation between Captain Rowe and Captain Bunker would not take the case out of the rule giving salvage reward.  He then went on to quote cases in which a moiety had been given to salvors, and submitted that the plaintiffs were fully entitled to the per centage on the gross value of ship, freight and cargo which they claim, and submitted that even this would be but poor compensation for the risk and labor incurred.

Judgment was reserved.

 

Source: The North-China Herald, 15 October 1864

SUMMARY OF THE WEEK.

Judgment has been delivered by H.B.M.'s Consular Court in the case of Lindsay & Co. versus Nichol Latimer & Co. and Cama & Co., in favour of the plaintiffs, though not to the full amount claimed.  A copy of the decision will be found in another column.

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