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Colonial Cases

Rawson v. Russell, 1864

[bill of lading]

Rawson v. Russell

Consular Court, Shanghai?
12 December 1864
Source: The North-China Herald, 17 December 1864

 

H.B.M. CONSULAR COURT.

Shanghai, Dec. 12th, 1864.

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

J.  F. CARTER, Esq., C. COLNETT, Esq., Assessors.

S. RAWSON v. J. RUSSELL.

   This action was brought on account of non-delivery of goods.  The following is the purport of the plaint which was filed.

Plaintiff claims from defendant the sum of Tls. 753.13, for non-delivery of one bale of goods containing four trusses and forty pieces of Camlets, shipped on board the Canadian, under Bill of Lading dated London, 1st April, 1864, and which bale of goods is marked or described in said Bill of Lading, three P's in a heart, No. 17.

 

ANSWER.

  1. - Defendant says that he did not make the said Bill of Lading mentioned in the plaint.
  2. - That he delivered the said bale of goods mentioned in the plaint, to the plaintiff.

   Mr. COOPER, in opening the case for the plaintiff, said that on the arrival of the ship Canadian in Shanghai, Mr. Rawson received an order from Messrs. Turner & Co., the agents of the vessel, to get certain goods which were on board consigned to him.  Mr. Rawson handed the order to Messrs. Wheelock & Co.  One bale was received by them, but the other, No. 17, was not delivered.  Defendant alleges that it was put into one of Messrs. Wheelock & Co.'s cargo boats, but if the boatman did get it, and appropriated it, it was the vessel's risk and not that of the Plaintiff.  Messrs. Wheelock & Co. argue justly that they are not liable, because they send boat-notes with their cargo-boats to be filled in and signed by the chief officers or commanders of vessels, in which it is particularly specified that Messrs. Wheelock & Co. will not be liable for goods shipped on  board their boats if not mentioned in the boat-note. 

   Mr. Rawson applied to Messrs. Turner & Co. about the missing goods, and an advertisement was put by them into the Daily News, requesting that a bale of goods marked three P's in a heart should, if found, be returned to them.

   S. RAWSON said: - I am consignee of this Bill of Lading.  I applied to Messrs. Turner & Co., the agents, on the arrival of the Canadian, for the usual delivery order, which I had stamped at the Custom House and sent as usual to Messrs. Wheelock & Co.  The Bill of Lading was for two bales.  Some time after, I received notice from Messrs. Wheelock & Co. that they had received the bale marked 21, and I took delivery of it.  I waited a considerable time for the other bale, and finding it not forthcoming, I asked them about it.  They said they had not got it.  I then went to Messrs. Turner & Co. who advised me to wait until the whole of the cargo had been discharged, as they thought it might be in the ship.  After the cargo was out, it was found not to be there, and then Messrs. Turner & Co. put a notice in the newspapers.  They did not succeed in finding it.

   Mr. RAWSON was not cross-examined.

   T. WHEELOCK said: - I am in charge of the cargo-boat department at Messrs. Wheelock & Co.'s.  I recollect a delivery order having been sent to us by Mr. Rawson.  This was on the 26th of August.  O produced the boat-note for the missing bale on September 7th, and the mate said that it had been put in the boat.  It was not mentioned in any of our boat-notes.  I went on board the Canadian to make enquiries, and the chief mate said he had delivered the bale.  On referring to his cargo book he said he had put it into our cargo boat No. 33, on September 7th.  There is no entry in our books of the missing bale.  We have not received that bale.  I made enquiry from the boatman, but he denies having received anything but what was mentioned in the boat-note.

   To Mr. MYBURGH: - I have the Chinese boatman and the master of that boat here.  Cargo is not stowed in our godowns unless it has been put in our boats by mistake, otherwise our boats take goods only to the wharf.  The godown men for the owners then take them away, having given a receipt.  Goods sometimes lie in our boat for three days.  They are left open all day except when it rains.  There is no European who superintends the delivery of the goods to the godown-men.  While the cargo is in the boat the captain of the boat has charge of it.  The mate of the Canadian told me that the bale had been put into one of our boats.

   To the COURT: - Packages which we are not authorised to receive and of which we do not know the owners, we put into our godowns.  If we know the marks, we send them to their owners.  The goods in this instance could not have been put into our godowns.

   Mr.  MYBURGH thought the question in this case was whether the master of the ship had fulfilled his agreement by which he was bound to deliver certain goods to Mr. Rawson or his assignees.  It was mentioned in the bill of lading that defendant's liability ceased when the goods had been delivered over the side of the vessel, and the learned counsel was prepared to shew conclusively that the goods were delivered.  Although the mate omitted to sign Messrs. Wheelock & Co.'s boat-note for their convenience, he does not for that reason incur greater responsibility, for, if the goods were delivered into the boat, the contract was fulfilled and the liability of the vessel then ceased.  The Canadian's cargo was composed of general merchandises, among which were several heavy packages of iron and machinery.  Thje chief mate distinctly recollects these two particular bales coming on board the vessel.  Six or eight men had to be employed to lower them on account if their size.  They were each composed of four bales fastened up together, making one large bale.  The mate made the Chinaman in charge of the boats sign his book for the bales.  If Messrs. Wheelock & Co.'s servants fraudulently made away with the goods, Mr. Rawson should look to then for satisfaction and not to the defendant.

   JOHN RUSSELL: - I am master of the Canadian, and defendant in this action.  I brought out a cargo of general merchandise.  I signed bill of lading for two bales of merchandise, dated 1st April 1864.  The stipulation as to the goods to be taken from the ship, &c., were on the bill of lading before I signed it.  Messrs. Turner && Co. told me last month that an application had been made by Mr. Rawson for a bale of goods not delivered.  This was the first I heard of it.  After having heard it, I went on board and spoke to the chief mate about it.  He said he had delivered both bales, and shewed his book.  He also said he recollected distinctly having delivered the bales.  They were so very heavy that he recollected them.  He had been in the hold to assisting rolling both bales to the hatchway, and had to call all the crew to assist him. He shewed me the entry in his book.  (Produced.) My risk according to the bill of lading ceases when the cargo leaves the ship's tackling.

   By Mr. COOPER: - I only deliver goods to people authorized to receive them.  The mate keeps an account book.  It forms no part of the master's duty.  I consider the mate is acting for me in attending to the proper delivery of cargo.  When an order for delivery is addressed to the mate, it is the same as though it were addressed to me.  I consider it was an omission on the part of the mate not to have required an accurate description of the cargo.  I consider my mate was to blame for the omission in not inserting the description.  We had to pay for a bale before, but that bale was never on board my ship.  I cautioned the mate to be careful not to put cargo into wrong boats.  I have not stated that this mistake occurred by the bale having been put into the wrong boat.  I communicated immediately with my mate as soon as I heard from Messrs. Turner & Co.  The notice was put in the paper without any delay.  Such mistakes often occur, and notices are inserted in the paper in consequence.  The notice was inserted with my knowledge.  I am not certain how many days elapsed before the notice was inserted.  It was not longer than a week.

   To Mr. MYBURGH: - The bale of goods for which I paid, came about in this way.  On my arrival I found a letter from my agents saying that after my departure two bales were found lying about the docks, which were sent by next ship - (the Laurel.)  I believed myself that there must have been three packages - one of which was no doubt in the hands of the agent.  My reason for not paying for these bales of Mr. Rawson's is that my chief matte delivered them. My chief mate is a very careful man.

   To the COURT: - I delivered from the main hatch all the time.  I should think five or six cargo boats were always alongside together, sometimes more.  Some boat-notes have similar endorsements and others have not.  When the boats come alongside, they hand these notes to be filled in.  We know each boat, and it is numbered and has a private flag.  We would deliver into any boat which could produce an order signed by Turner & Co.  I delivered the goods to the Chinaman who produced this order.  Sometimes these orders lie on board for several days, as the goods are not always to hand when they are presented.

   HINTON STEWART, a partner in the firm of Turner & Co., the consignees of the Canadian, said: - Mr. Rawson sees me frequently in his capacity as broker.  I remember the first occasion on which he spoke to me about a bale of goods which he alleged had not been delivered.  I said "It is a very serious matter for the ship, as it would be a heavy claim on her."  I do not tbhink I said, I would, or would not, pay it.  It was the first I had heard of it.  The Captain on enquiry said he had delivered it into Wheelock & Co.'s boats.

   Mr. MYBURGH requested Mr. Stewart to give the Court the benefit of his experience regarding the custom of the port on certain points.  Mr. Cooper objected to the question, and begged that the objection might be noted.

   Witness continued: - The risk of consignment commences, according to the custom of the port, the moment the cargo is pout into the boat.

   To Mr. COOPER: - I should consider the master or mate of a vessel negligent who put a package into a boat without mention in the boat-note.  If I were consignee, I should try to recover the cost of the goods in a similar case.  I should claim from several people. At the time Mr. Rawson first spoke to me, I was about to proceed North.  Immediately after he spoke to me the advertisement was put in the paper.  A bill was sent in by Mr. Rawson which was put before the Captain.  I gave no undertaking to pay the bill and could not without the Captain's sanction.

   To Mr. MYBURGH: - Consignees do not pay any bill of this kind without consulting the Captain.

   J. HOGG, Chief Officer of the Canadian,   said: - I have been thirty-two years at sea; fifteen years Chief Officer.  The Canadian's cargo was general merchandise.  I recollect taking on board in the East India Docks two bales marked three P's in a heart.  There were four distinct bales in each; they were covered outside with matting.  I did not then see that there were four in one.  This is the order from the Railway Company to receive the bales.  There were no bales similar in size or make-up, in the shop.  They were much larger than the average size of bales we had on board.  One was stowed before the main hatch, and the other aft of the main hatch on the port side.  That was the reason the two bales were not got out the same day.  We got them up on the 6th and 7th of September.  I had previously received a delivery order with the Custom-house stamp on it to deliver them into Wheelock & Co.'s boats.  I had done so before delivering the first of these two bales.  I distinguished their boats from the others by the flag.  Theirs is white, with a red diamond and thin blue edge round it.  The flags carried by the other boats were not at all similar. 

   I distinctly recollect delivering one bale on the 6th.  It was so much larger than anything else that I went down myself with four extra hands to roll it to the main hatch.  This bale was marked 21.  I was obliged to reive an extra purchase to lower it into the boat.  The bale was put into Wheelock & Co.'s boat.  I made a tally in this tally book of that particular bale.  The Chinese boatman made a cross as his signature in my presence.  I called upon the boatmen to do so.  On the following day I delivered a similar bale into Wheelock & Co.'s cargo boat.  I had to bring extra men for it, just as with the first; I had also to reive an extra purchase.  This bale was No. 17.  They both appeared the same size.  I also made a tally of this one as it went into the boat.  I am quite certain it went into Wheelock's boat.  Mr. Luther, a tide-waiter, was on board all the rime and kept a tally of everything that went out.  I gave a boat-load on the 7th; and on the 6th also.

   I have been informed that I did not make an entry of this bale in then boat-note.  It was an accidental omission.  The boat-notes are merely given for the convenience of the consignees.  We were discharging the light packages with as double ands single block, but with these bales had to use two double blocks.  I am certain this second bale went into Wheelock & Co.'s boat.  I don't think I would know the boatmen.

   To Mr. COOPER: - The tide-waiter and I used to compare our tallies to see whether they were correct.  I made one mistake in the tally when the vessel was loading in London.  The not filling in the boat-note was an oversight.  My impression is that it was into one of Wheelock's boats the bale was put.  The flag may have been white with red diamond and blue edge, or blue diamond and red cage; I am not sure.  The flag is painted on the house in the boats.  I also know the boats by the boat-notes,

   TO THE COURT: - The bale marked 21 went on the 6th and that marked 17 on the 7th.  I did not have to go down to the boat to assist in the stowing.

   Mr. LUTHER said: - I am a tide-waiter in the employ of the Imperial Customs.  I was put on board as the Customs Officer in charge of the Canadian.  It is my duty to see that no goods not having delivery orders stamped by the Customs, leave the vessel.  I examine the orders before allowing anything to be discharged.  The Canadian's was a general cargo.  I kept a tally of the cargo that went over the ship's side as well as of the boats.  I recollect two bales marked with a heart and 3 P's going over the ship's side.  They were very large ones.  I think they were three bales packed in one.  Those were the only bales of that size and description.  These two bales did not go over the ship on the same day.  (On reference to his tally-book, the bales were found to have been delivered, one on the 6th, the other on the 7th September.)  These entries were made when the bales were leaving the ship's side.  I am not particular about making the marks, so long as I know them myself.  I check them off into another book at night.  An extra purchase was used to get up these bales.  I think iron was lifted with the same purchase afterwards.  When one boat is loaded I am in the habit of looking over the ship's side to see the number or letter on the next boat.  I recollect these bales having been put into Wheelock's boats, both from my own personal recollection and from the entries made at the time.

   To Mr. COOPER: - I have been a tide-waiter in Shanghai for three years and a-half.  I have nothing to do with the cargo boats.  I saw every boat that took cargo from this vessel.  I generally do so.  Sometimes it is the case that the mate keeps tally for me while I am away, and I for the mate.  I think the mate was below and had his book with him at the time this bale was taken up.  He did not then take the tally from me.  I think I was standing aft of the gangway at the time.  I don't think I was absent altogether.  In steamers they sometimes deliver into three cargo boats at once.  In sailing vessels I never recollect seeing moirĂ© than one loaded at a time.  I do not know how many boats were alongside at the time.  (In witness's tally-book one of the totals including trhe bale was marked 88, while the true total was 89.)

   To the COURT: - This must have been a mistake on my part.  I am still ready to swear that the 89 packages went into the boat.  I think Wheelock & Co.'s flag is white ground, with a blue diamond, and I think there is some red about it.

   Mr. MYBURGH having no more witnesses to examine, the following Chinese witnesses were called by the Court.

   HANG SUING said: - I am the head man in one of Wheelock & Co.'s boats.  I recollect the sixth day of the 8th moon.  I received 89 packages of cargo; I don't recollect on which day.  I received them from a three-masted vessel painted white.  I never received any other cargo from this ship.  The louda wrote this character (the signature in the mate's tally book).  I think there was a piece of cloth and the rest were boxes.  Some were the size of this witness box.  I saw the louda making this signature.

   KEN-YU-TANG, louda of the boat, said: - I recollect making the signature (in the mate's book.)  I wrote it as a receipt for eighty-eight pieces of cargo.  I received 88 pieces and no more.  Some were cases of wine and others boxes.  I did not see any bales.  I do not recollect the date.  I counted them on board the boat while alongside the large vessel, and when I came to the jetty the compradore counted then.  Directly after being counted they were delivered.

   Mr. MYBURGH, in the course of summing up the evidence for the defendant, said that having conclusively proved that the bale of goods the subject of the action had been delivered into Messrs. Wheelock & Co.'s boat, the defendant had furnished a complete defence to the plaintiff's action.  The contract for the carriage and delivery of the goods was the Bill of Ladling which the defendant had signed.  This Bill of Lading contained an express stipulation that the goods named therein should be taken from alongside the ship at consignee's expense and risk.  Indeed, had there been no express stipulation to this effect and in the absence of a custom to the contrary, the master's liability in respect of goods ceases the moment they are taken out of the ship's tackle and put into the consignee's boat. 

   There was no allegation on the part of the plaintiff that there was a custom in Shanghai extending the master's liability until the goods reached the shore.  Such a custom would be unreasonable and unjust, and would not be held valid in a court of law.  The most extraordinary feature in this case was the attempt made by trhe plaintiff to saddle the defendant with the loss he had suffered in consequence of the negligence or fraud of Messrs. Wheelock & Co.'s servants.  It was idle in the plaintiff to say that because Messrs. Wheelock & Co. insert a condition in their boat-note in which they warn masters of ships that they will not be liable for goods not mentioned in the boat-note although delivered to their servants, therefore the defendant in this case is liable, his chief officer not having given the number and mark of the particular bale of goods in the boat-note he signed and delivered. There is no legal obligation on the officer of a ship to sign a boat-note containing such conditions, and his doing so does not increase the mater's responsibility.

   This is an attempt to engraft a new contract for which there is no shadow of consideration on the original contract.  The conditions in the boat-note are clearly not binding upon the defendant, who had performed his part of the contract with the plaintiff by delivering the bale of goods into Messrs. Wheelock & Co.'s boat.  If the Court considered that the defendant had proved such delivery he was entitled to judgment.

   Mr. COOPER said:- There were two things to be decided: - whether there was any delivery of the goods in question, and, if there was, whether it was into Messrs. Wheelock & Co.'s boat.  He (Mr. Cooper) thought there was no evidence to prove that it has actually been received.  Besides, there was a discrepancy in the statements of the chief officer and the tide-waiter.  The mate in his evidence declared that he saw the bale going over the side of the vessel, while the tide-waiter said that the latter was down below at the rime.  From the fact, moreover, of the Master of the ship having agreed to have the advertisement out into the paper, it was evident that he thought it at least possible that it had been put into another boat.  Without wishing to reflect any discredit on the testimony of his friend's witnesses, he certainly thought there was something mysterious in the fact of the tide-waiter's total making eighty-eight while the total of thr goods entered was eighty-nine.  Then, it was not only necessary that the bale should have been put into one of Messrs. Wheelock & Co.'s boats, but into one particulars boat, and none of the witnesses seemed to know its number or anything about it.  The boat cannot be identified as the boat authorised to receive it, and the goods may have been delivered into any other boat.  If goods were to be put into any boat from a vessel and the responsibility of the vessel then cease, merchants would have no protection against fraud. 

   The question was who was to pay, and he certainly considered that Messrs. Wheelock & Co. could not be to blame.  The mate must have known the nature of the boat-note; that it was intended to prevent fraud, and therefore for his carelessness was responsible and, through him, the master and owners.

JUDGMENT.

   The Court considers that the defendant has not proved delivery of the missing bale marked three P's No. 17, and is therefore responsible for its value.  The Court does not hold that the chief officer of the Canadian  was bound to fill in the boat note sent by Messrs. Wheelock & Co., but having done so, and having made no mention of the bale in question, while he was careful to particularize the delivery of 88 other packages, the said mote is prima facie evidence that the missing bale was not delivered with the other 88 packages, and the Defendant has failed to convince the Court by other evidence that the said bale was put into Wheelock & Co.'s boats as is alleged.

   This decision does not carry in the mind of the Court any other imputation against the character of the Chief Officer than that of carelessness, caused possibly by the haste and difficulties attending the discharge of his duties.  The Court has to bear in mind, moreover, that this want of care on his part was calculated to mislead Messrs. Wheelock & Co., and to deprive them of the opportunity of otherwise tracing the missing property, as it amounted to an assurance from the person most qualified to give it, that no other goods than those named in the boat-note had been given into the charge of their servants.  The judgment of the Court is, therefore, for the plaintiff, with costs.

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