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Colonial Cases

The Kin Tun Mow v. The Aerolite, 1864

[shipping, collision - causation]

The Kin Tun Mow v. The Aeorolite

Consular Court, Shanghai
15 September 1864
Source: The North-China Herald, 17 September 1864

 

H.B.M. CONSULAR COURT.

SHANGHAI, September 15th, 1864.

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

--- THOMAS, Esq., R.N., T. VINCENT, Esq., Assessors.

OWNERS OF THE KIN-TUN-MOW

versus

MASTER AND OWNERS OF THE BRITISH SHIP Aerolite.

The PLAINT was to the effect that, on the 18th August, through the negligence and unskilfulness of the crew of the Aerolite and of steam-tug lashed alongside, in directing the vessel, the steam-tug ran foul of the junk Kin-Tin-Mow, carrying away the fore-part, besides anchors, foremast, rigging, rope, boats and a large portion  of the cargo which was lost over-board, and doing other injury, and this cast her adrift, when she ran foul of and damaged the Sebastopol lying at anchor in the river.  The plaintiff claimed Tls. 3538 for expenses incurred.

The defendants denied neglect or unskilfulness on the part of the master or crew of the Aerolite; they admitted the collision with a junk, name un known; and asserted that the junk qwas lying in an improper position, and had no light.  It was night when the collision took place.

Mr. MYBURGH said the Kin-tun-mow was a large Foochow junk, one of the most valuable descriptions of native boats.  It was with some others, anchored below thew shipping on the Songque side, and at low water it was only a junk or a junk and a half's length from the shore.  The position was outside the harbourmaster's limits, so it cannot be decided whether it was proper or improper.  The Aerolite was coming into the harbor, and suddenly changed her course, thus tunning foul of the junk.  If the junk was obliged to carry a light and did not it was still necessary to shew that there was not negligence on the part of the defendants.  He tho9ught it a most imprudent act to come up at full speed by night on the flood tide, with no proper look-out.  There should have been men in the look-out to guard against collisions with vessels in the fairway.  The Court was aware of the frequent complaints made at the different Consulates of the reckless navigation displayed on the river Wongpoo.  (Mr. Myburgh quoted an almost similar case tried in the High Court of Admiralty in Ireland, in conformation of his views.)  Under extraordinary circumstances, extraordinary precautions should be taken.  Finding that the loss sustained by the owners of the junk was so much more than he (Mr. M.) at first imagined, he wished to amend the plaint and claim a higher amount.

The COURT considered it better to make the alteration then, than to bring a separate action for damages afterwards.  Accordingly, Tls. 750 was added to the former claim; thus making the amount claimed Tls. 4,288.

Mr. MYBURGH continued:- He was then only suing for an amount sufficient to make the junk seaworthy, but he considered the owners entitled to compensation also, as the junk was very much shaken by going ashore and drifting about the river.  Everything was done on board the junk which the owner of the vessel could do to prevent loss while drifting about, damaging other vessels and doing more damage to herself.

H.  S. BROWELL said:- I am a clerk at Angel & Co.'s, the agents for the owners of the junk.  I recollect an application having been made to me by the Captain of the Sebastopol for damage done by the junk.  A bank order for 320 Tls. Was given to him for the damage.  The Captain of the General Ward laid claim for 500 Tls.  It was settled at Tls. 245.  This I believe is the receipt (handed in) from the Little Orphan for payment for services rendered to the junk (receipts handed in to Court).

TO THE COURT:- The receipt in pencil from the Little Orphan was handed to me by the people of the junk.  I know nothing about it.

TO MR. EAMES:- I think the owner of the Kin-tun-mow owns other junks.  I am not certain that the towage services rendered by the General Ward were really rendered to the Kin-tun-mow.)

I don't know what the damages to the Sebsatopol were, only what the master and crew swore to.  On board the junk they  acknowledged that she had damaged her.  I had the management of this affair in a great measure to myself. I am sure of the extent of the towage service rendered by the General Ward and the Little Orphan.

TO THE COURT:- The Captain of the General Ward claimed Tls. 500, but agreed for Tls. [????}.  I think Tls. 20 per hour is the usual charge for tug-boats.  (Mr. Myburgh here remarked that the service done in this case was simply towing, and consequently the rate would be higher.) I do not know [hope][ the junk was beached, except from what I have heard.

[I??] SAKAO-SHAN, lou-da of the junk, said:- [????] 7th and from Ninbgpo on the 10th day of the [paper creased] [????} and arrived at Woosing on the 13th [????] the 16th day (August 17th), anchored [????] over near dent's gowdowns.  Where were room [????} where I anchored.  [............................................................................................]  if the collision. The rope attached to the rudder was fastened forward and carried away by the collision, so that the junk would not steer.  She then floated up against a vessel.  We made fast to this vessel.  I then went and called as steamer.

TO THE COURT:- The foreign vessel was seven or eight junks length up the river from where the junk was anchored.  She was a three masted vessel.

TO MR. MYBURGH:- I went for a steamer immediately after we made fast.  She belonged to Augustine Heard & Co.  I  went to Hoing-que for the steamer, she was anchored there.  I wanted the tug to tow the junk up opposite the city.  The junk could not be made fast to the steamer; several ways were tried.  That was the reason why the Captain of the tug would not take the junk up to the city.  The junk drifted on to the bank nearly abreast of her old position.  The steamer assisted her to get to the shore and left her there. I then went with six of my men to the city to get an anchor, and the rest remained to make the junk fast.  They could not make the junk fast because they could not d rive piles strong enough to hold her into the bank.  The tide turned and there was thunder and rain.  We came in contact with another foreign vessel at Lo-ka-szu. We carried away a boat belonging to the foreign vessel.  Claim was made for damages by the Captain.  Two foreigners from on board the foreign ship came on board the junk, and we were rather afraid.  After this we fouled a steamer; then several junks.  We hired a small steamer belonging to Anghel & Co. to tow the junk up to the little East gate.  Compensation  was made to the vessel whose boat was lost.  The junk was towed in by Angel & Co.'s steamer.

TO MR. EAMES:- When we anchored, there were eleven or twelve feet of water. We sounded when we anchored.  The whole forepart of the junk was cut away by the collision.  The wood lashed outside the steamer extended forward of the main-mast.  The steamer struck against the bow of the junk, not against the wood; then the fore-mast came away and there was great confusion.  We had altogether ten oars; five were carried away.  There is another lowda to the junk.  The Little Orphan did not make fast, for the junk turned; afterwards, she helped her on to the bank.

TO THE COURT:- The steamer got behind the junk and pushed her on shore.  The junk's head was down the river.  A little water leaked in at first where the head was knocked away, and afterwards she filled with water to the deck.  When the steamer tried to make fast, before going on the bank, the junk was half full.  She got full when off the East gate.  Rice, ropes, charcoal and firewood was the cargo in the hold.  I went to get an anchor to keep the junk on the bank; ropes and stakes would not hold.  It would have been better of the junk could have gone up the river, but in our position we had to go on to the bank.  The mizen mast was forty feet in height from the deck.  The lamp was hoisted to the top of it. (Witness produced a lantern similar to that used on board the junk.  I was an ordinary, cylindrical paper lamp.) The junk has not been mended yet.

WANG-TSUNG-YU, sailor on board the Kin-tun-mow, stated as follows:- I was on  watch at about midnight, on the night of the 17th August.  The junk was anchored at such a distance from the shore that she could turn round without grounding.  We were at anchor below the shipping.  I was awake during my watch.  The tide was slack at the time.  When in the river we always burn a light.  There was a light burning at the time of the collision.  I saw a steamer coming with a foreign vessel.  She had her head towards the junk.  I shouted, but notwithstanding, the steamer came into collision with the junk, and the five anchors were lost; s ails, mast., rudder and a small  sampan were carried away.  Some piculs of charcoal and other cargo were also lost.  Two oats were lost.  The stern windlass was carried away.  The night of the collision was moonlight, a little cloudy.  I could see across the river.  I could see the steamer and vessel about a mile off.  The steamer was coming down very fast, as if she were flying, having the advantage of the floor tide.  The junk then floated up against a foreign vessel.  The louda went for and brought a steamer.  The steamer could not tow the junk in the condition in which she then was.  The steamer pushed the junk on to the bank when the ebb made.  Half the men went for an anchor.  When the flood made again, the ropes and stakes would not hold the junk, and she floated.  She then fouled a foreign vessel, and two foreigners from the vessel came on board the junk.  I was on board at the time.  The men belonging to the junk jumped into a sampan and left her with the foreigners.  We were afraid of the foreigners, because we fouled the vessel.  The junk came in among the Chinese shipping and a steamer came and towed her to the little East gate.  We were watching the junk.

TO MR. MYBURGH:- The junk was strong and well furnished with everything necessary.  There were about four thousand poles on board.  About forty coils of rope were lost from the head of the junk.

TO MR. EAMES:- We used always to carry the lamp on the mizen mast.  It was on the port side the steamer struck.  The vessel as she came up passed the junk, but the steamer could not pass, so struck.  The vessel and steamer went right on without stopping.  The coils of rope lost were for use on board the junk. It was all for use. Some had been used and some were new.  The steamer struck the poles on the outside of the junk.  The distance from the forward part of the poles to the bow was 20 or 30 feet.  When I first saw the steamer she was about a mile off.  She came straight on.  The junk draws eleven or twelve feet of water.

TO THE COURT:- I don't know whether the steamer remained in sight, as I was very busy.  We drifted against the foreign vessel and waited until the steamer came.  The people on board the ship did not tell us to stay or not to stay.  There were about ten feet of water in the junk at that time.  The foreign vessel was three-masted.

LU-CHIA-LING, sailor on board the Kin-tun-mow, said:- I recollect the 16th day of the 7th month.  I was on board the junk that day.  There was a collision on that day.  I was asleep at the time.  The junk was anchored on the north side of the river.  A steamer  ran into us.  There was a sailing vessel outside the steamer.  We asked them on board the steamer to tow the junk but we received no answer.  We wanted to be towed because the cables were broken and our anchor gone.  Both cables were snapped.  The head of the junk was cut away; the rudder also.  The junk drifted up.  The lou-da went on shore to procure a steamer.  The junk got athwart hawse of a foreign vessel in the 5th watch.  When the steamer came to the junk it was not yet daybreak.  I don't know the  depth of water where we anchored; I was not on watch.  The junk had a lantern on the main-mast.  I saw the light myself.  I went to sleep after supper.  We always carry a light in the junk at night.  I went on board the junk on the 10th day of the 7th moon, at Ningpo.  I did not understand what the people in the foreign vessel s aid, when we were across their cable.  The louda went for the steamer as soon as the junk fouled the vessel.  The night was moonlight; a little cloudy; it was high water; the steamer was coming between our ship and the shore, but finding the water shallow turned back.  We were lying about 10 chang distant from the shore, at low water.  It was the steamer which struck the junk.  There were two vessels.  One was short and the other long; the steamer was the shorter.  I am certain it was the steamer which struck the junk.  She struck the junk in the bow, opposite the ioremast. There were three bundles of spars oin each side of the vessel, several hundred in each bundle.  The spars from the upper part of one bundle? were thrown overboard; the other five remained intact.  There were some more lost on the next day.  The supercargo would be best able to say how many spars were lost; he was on board.  His name was Nin-lien-sung.  He landed at Woosin from Ningpo in another junk, and then came on board our junk, on the 14th.

S. FULLER, captain of the General Ward, said:- I was asked by the captain of a ship who was in charge of the junk, to tow her up.  She was among the junks.  I found the junk with her bows stove in, and she had a heavy list; one side of her deck load was nearly in the water.  I think she had only one mast standing.  I am not sure whether it was her mainmast or her foremast.  The deck-load was generally disarranged, as though a part od it might have gone overboard.  I took her away from where she was, and made her fast to one of the D.S.N. Co.'s buoys.  I should call her a wreck.  She could not sail, she had no rudder.  She was afterwards taken over to the Pooting side and put ashore.  I got Taels 215 for my services.  I was satisfied with it and agreed to take it.

TO MR. EAMES:- I did not hear any one mention the matter of the junk.  I have no means of knowing her name.

TO THE COURT:- I did the first day's work in four hours, and the second in two hours; but I was about her for two days, so that the compensation was small.  I should think at a rough estimate that the mast which was standing was about 25 feet from her bows.  I think it was her port side which was stove in.  My attention was not called to these matters and I did not notice.  All the forward gear appeared to have gone.  Her cargo was adrift, her bows were stoved in, and she had only one mast; she was deeper forward than aft; she had no rudder, and I should call her a wreck.  She was  beached, I believe, for the purpose of discharging her cargo.  She might have been discharged at the buoy.  The mast which was standing had the sail standing, but I could say nothing as to the gear.

NIU-LIEN-SENG, supercargo of the Kin-tun-mow, said: The Kin-tun-mow touched at Ningpoi on her voyage up; she had 3098 pieces of timber on board, besides charcoal and basins.  The charcoal and chinaware was stored in the bows.  The value of the charcoal was about Tls. 50 per picul and the chinaware Tls. 70 per bundle.  I was on board at the time of the collision.  I left the junk at Chin-hai and went on board again on the 14th say (16th August).  After leaving Woosung, we anchored about one li below the shipping, near Hoi-too, a small village.  We anchored at about 10 or 20 chang from the shore so that we could turn round.  Other junks were anchored outside, in deeper water, but none inside.  I have been in the junk two years.  We have been always in the habit of showing lights at night even at sea, because we generally sail in company.  I was below at the time of the collision. I always see to the lights myself.  The light was biurning at the mizen mast head when I came on deck after the collision.  The junk was cut asunder, three or four feet abaft the forecastle.  Provisions stores and timber were thrown overboard by the collision; all the charcoal and the chinaware was lost.  We lost 425 pieces. (Mr. Myburgh would  not? withdraw the additional amount which he claimed.  He had understood that 1,000 pieces had been lost.)

The foremast went overboard.  A new one costs Tls. 100.  The foresail and stun-sails were lost; the anchors were carried away.  There were two large and one small iron anchors worth Tls. 140, and two wooden anchors worth Tls. 120.  They were good.  We also lost the rudder.  A new one would cost about Tls. 140.  It would take about 4,000 catties of hemp to make up the loss of the rope; we lost nearly all.  It would cost about Tls. 5 a picul.  The total value would be about Tls. 200.  One small sampan was lost, worth about Tls. 30.  The small stern windlass was injured.  The windlass was injured through the carrying away of the rudder.  The rudder was carried away.  It was a cloudy night.

The junk was seven years old and was a good sea-going boat.  She was of Foochow wood.  She was about 18 feet wide and about 12 feet deep inside.

TO MR. EAMES:- When I first went on deck, the steamer was not clear.  The watchmen called up all who were below, as soon as he saw the steamer attempting to pass inside.  The junk was heading  down river.  I did not notice which way the steamer was going.  Both sides of the junk were broken almost alike.  The rope was at each side of the junk; chiefly about the cabin door.  The lashing of the timber on one side gave way.  There were four hundred poles in one bundle.  Four hundred and twenty five poles were lost.  The bundle of wood was tired to the cable and when the cable went the wood went also.

TO THE COURT:- Five anchors were lost.  Two were down at the time.  I don't know the position of these two anchors so cannot get them up.  The junk is on the Pooting side now with the head partly off.

AN TENG-YANG said:- I am a Fohkien junk-builder.  I came here last year and established myself in business.  The average value of a Foochow pole is from Tls. 1 to 10.  The bundles depend on the size of the junk.  I did not see the Kin-tun-mow except after the head was off and she had no timber alongside.  I have examined the junk.  She is a timber junk.  She is of medium size.  I examined the timbers and they were in very good condition.  Over 1,000 Tls. would be the expense of making her hull sea-worthy.  I estimated the expense at Fok-kien prices and in Shanghai it would be more.

NIU-LIEN-SUNG recalled  said:- The value of the timber varies from 4 mace to 5 TYls. Each spar.  It is hard to tell the value of a bundle, the sizes of the spars vary so much.

Mr. MYBURGH said the only way to find out the value was to get the account made out in Foochow.  The Supercargo was instructed to procure it.

This closed the case for the Plaintiffs, and the Court was adjourned.

Source: The North-China Herald, 24 September 1864.

H.B.M. CONSULAR COURT.

SHANGHAI, September 16th, 1864.

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

--- THOMAS, Esq., R.N., T. VINCENT, Esq., Assessors.

OWNERS OF THE KIN-TUN-MOW

versus

MASTER AND OWNERS OF THE BRITISH SHIP Aerolite.

The following is the evidence for the defendants on the above case.

NIU-LIEN-SUNG, the supercargo, said:- I [????] on board the steamer and the sailing vessel [????] day after the collision.  They were at anchor at Lo-ka-tzu.  [Not yet transcribed]

 

Source: The North-China Herald, 24 September 1864

The decision arrived at by the Consular Court in the case of the Aerolite and Kin-tun-mow, will be generally hailed with satisfaction, as a warning to steamers that native as well as foreign vessels can recover damages in the Consular court for injury  done them through carelessness.  Hitherto, it is to be feared, junks have frequently been sufferers from collisions without daring, or at least knowing how to claim compensation.  And the knowledge that this dread or ignorance existed, has frequently encourages masters of steamers to "hustle" native junks which lay in their way, much as foreign pedestrians are apt to hustle natives who, with habitual apathy, do not get fast enough out of their road.  But this practice in the case of ships has more grave results than in the latter; and frequently serious injury is caused to native junk and boat owners, through that "incontrollable fierceness" which has become an attribute of the foreign character.  Fortunately, the Kin-0tun-mow was consigned to foreign agents, and they were able to assure the representatives of the native owners, who were on board, that the same principles of equity on which disputes between foreigners are decided by their authorities, would be brought into play when the question became one between a foreigner and a Chinese.  The junk Kinj-tun-mow, having on board a cargo of poles and chinaware, arrived in the river from Foochow on the 17th August; anchored about half a mile below the foreign shipping, and was, the same evening, run into by a foreign steamer, and so seriously injured that one of the witnesses, when asked his reason for considering her a total wreck, said "all her forward gear appeared to have gone; her cargo was adrift; her bows were stove in; she had only one mast; she was deeper forward than aft, and she had no rudder."  It further transpired that four hundred and twenty five poles had been lost overboard, that all her anchors were lost and various other damages occurred.  Thus cut adrift, the junk careered about the river at the whim of wind and tide, now crashing against one vessel and now another, and causing damage for which she was condemned to pay by summary execution.  She was pushed by a tug on a mud bank, but was again washed off before her new anchors could reach her, and recommenced her previous erratic excursions? amongst the foreign shipping.  Eventually, another tug towed her, half full of water, on to the Pootung shore nearly opposite the East gate of the city. 

The defence set up by vessel and steamer which had caused all this damage, was ingenious in some points, but could not be strong, because the evidence afforded by the results was  too palpable.  The defendants confessed that they had run into a junk, but alleged that there was no evidence to connect it with the Kin-tun-mow; that they had done so because they saw a steamer shewing two white lights which they thought was under weigh and coming towards them; and that the junk was anchored in mid-channel.  But unfortunately for their case, the connection between the junk run into and the one in question was so palpable that the court did not think it necessary to put any question tending to establish it; the fact that steamers are not in the habit of getting under weigh with two white lights is so well-known that no credit was attached to the assertion of the plaintiffs, that they believed the one they saw so situated was moving; and one of their own witnesses, while asserting that the junk was anchored in mid-channel, asserted that it was so close to a steamer which he acknowledged was anchored in a proper position, that it could not be seen until they were almost upon it.

There were no doubt contradictions and incongruities, but three main points in the case were so clear that it seems strange the Court first assembled to try it, should have been unable to arrive at a decision.  Two additional assessors were therefore summoned, before whom some additional evidence was given; and eventually, the judgment we to-day publish was agreed on.

It has evidently been carefully considered and finely argued.  The Aerolite was at fault and the junk was entitled to damages; but was it entitled to recover the whole amount of the expense it incurred, or only a portion; was that loss caused wholly by the Aerolite, or was any portion of it incurred through the fault of the junk itself?  The Court determined that the latter was the case; that, had the junk after availing itself of the tug to get in a temporary safe position on the mud, retained her services to being a new anchor, the anchor might have arrived in time to enable it to moor there securely.  Instead of this being done, the anchor was sent down in a sampan, but before it could reach its destination, the junk had floated adrift the second rime, and the court held that the loss it incurred through having to make good injuries sustained by itself and inflicted by it on other vessels during this second excursion, should be borne by itself. How far a vessel in the position of this junk may be bound to employ a tug to perform such a service as bringing an anchor, must be an open question.  The junk certainly would not have been adrift had not the Aerolite cut her from her anchorage; the latter vessel therefore was primarily responsible; and as the junk was put ashore, at not later than half ebb, it may be considered that the captain was justified in thinking he could carry an anchor to her from the city in a sampan, before the return flood should again float her.  If blame attached to the junk, it was not for abandoning the services of the tug, but for delaying in procuring the anchor during the ample time which elapsed before she was again afloat.

But it is shewn by the evidence that a portion of this time was taken up in going with the commander of the tug to Tong-ka-doo, to persuade the native agents of the junk to pay him for his services.  Thus there is much to be said on both sides, and we incline to think that the Aerolite, as the prime cause of the misfortune, should have been held responsible for at least a portion of the loss incurred during the second act of the drama as well as the first.  However that may be, it is satisfactory that a case of this nature has at length been brought into court and decided in favor of the Chinese.  We venture to predict that it will prove the fore-runner of many similar ones.

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