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Colonial Cases

Baldwin and Gibson v. The Exonian, 1865

[shipping, collision]

Baldwin and Gibson v. The Exonian

Consular Court, Shanghai
2 June 1865
Source: The North-China Herald, 3 June 1865

 

H.B.M. VICE-CONSULAR COURT.

Before - J. MARKHAM, Esq., H.B.M. Vice-Consul,

E. A. REYNOLDS. G. BENNETT, Assessors.

June 2nd, 1865.

BALDWIN & GIBSON v. S. J. MANN, Captain of the British barque Exonian.

The plaint was to the effect that on the 24th ult., when the Exonian was coming up the Whampoa, she, through the carelessness of her Captain, came into collision with the pilot schooner Dot, inflicting injuries on the latter which caused her to sink.  Damages were laid at Tls. 2,600.

Mr. Eames appeared for the Plaintiffs, and Mr. Myburgh for the Defendant.

The Court held that no blame whatever could be attached to the defendant, inasmuch awe the Dot brought the collision on herself by attempting to cross the bows of the Exonian, when by continuing on her own course the two vessels might have passed in safety.

Judgment was therefore given for the defendant with costs.

 

Source: The North-China Herald, 10 June 1865

H.B.M.'s VICE-CONSULAR COURT.

Before JOHN MARKHAM, Esq., H.B.M.'s Vice-Consul,

Captain BENNETT, E. A. REYNOLDS, Esq., Assessors.

June 2nd, 1865.

Messrs. BALDWIN & GIBSON

versus

Mr. T. J. MANN, Master of the British barque Exonian.

Mr. EAMES for the Plaintiffs.

Mr. MYBURGH for the Defendant.

This was a claim for taels 2,600, the value of the Pilot Steamer Dot, sunk in the Wong-poo River on May 24th, through collision with the barque Exonian.

The Defendant answered, first, that he was not guilty, and second that the collision and damage was caused entirely by the negligence and unskilfulness of the Plaintiffs or their servants.

CORNELIUS BOLT said: - I remember the collision between the bark Exonian and the schooner Dot.  It happened on May 24th.  I was on board the schooner at the time.  We had come up a few hours before the collision.  We anchored opposite the Old Dock and took a pilot on board.  We saw the Exonian some miles off, coming up the river.  We were then beating down.  I did not become aware of danger at the time of the collision.  When I came on deck the collision was unavoidable.  The schooner was then on the starboard tack.  She was struck just abaft the foremast.  She filled and sank in about three or four minutes.  I think that she was going about five knots over the ground.  I did not perceive that she slackened speed.  I left the schooner in one of her boats.  The people in the ship rendered us all the help they could.  There were about eighteen feet a little before low water.  The whole of the starboard side of the schooner was stove in.

Mr. MYBURGH: - We were about three ships lengths from the ship when I came on deck.  I first shouted to the barque.  I remained on the house forward, and then went to the helm.  The helm was half way between hard a starboard and midships.  She was heading W. or E.S.E.  The collision happened about threequarters of a mile below Messrs. Collyer and Lambert's.  The wind was blowing across the channel.  We had been beating down the whole way.  I had been down below and do not know how often we tacked.  The collision took place near the Pootung side.  I knocked down the Chinaman who was at the helm.  I was angry with the Chinaman. I do not remember whether I told him that he had been putting the helm the wrong way.  He ran away from the helm, and it was after this that I knocked him down.  We were not close-hauled on the starboard tack at the time of the collision.

TO THE COURT: - I was not in charge of the schooner.  A Chinaman was.

Re-examined by Mr. EAMES: - I think that the helm was put up to keep her off.  I think she had fallen off about two or three points.  It was half-ebb tide at the time.

SUNG-DA-SING said: - I was louda of the pilot schooner Dot.  I remember the collision with the ship on the 13th day of the 4th moon.  I was not managing the boat at the time.  I was taking my supper below just before the collision.  I came on deck a minute or two before the collision took place; we were beating down the river at the time.  We were near the Shanghai side of the river and heading towards it.  We were on the starboard tack at the time the collision took place.  Two or three minutes after we had gone on that tack, the ship was coming up the river heading towards the Shanghai side.  She was steering direct for our schooner.  I think the steamer did not slacken speed.  I think we were going close by the wind.  The schooner sunk about two minutes after she was struck.  It was about opposite the Joss Houses on the Shanghai side.  She sank in three fathoms of water on the Langso shoal.

TO THE COURT: - We should have had to male another tack in the reach.  We made a tack about five minutes after I went down to supper.  There were six men on deck at the time of the collision.  There was no whistle blown nor any sign made by the tug before the collision.  The ship was about half a li distant when I first saw her.  There appeared no danger when I first saw her and the Dot gave way to her by working nearer to the bank.

WIN LA-KING said: - I remember the collision.  It occurred at about six o'clock at night; I had the helm at the time and had charge of the deck.  We were sailing towards the Shanghai side of the river.  We had been standing on that tack for about three minutes before the collision.  We were going slowly.  I did not notice the steamer slacken her speed.  The schooner sank very soon after the collision.  The ship was about half a li off when we made the tack.  The ship was going toward the Shanghai side of the river.

Mr. MYBURGH: - When we made the tack we were nearer to the Shanghai side.  It takes less than a minute for the schooner to go round.  I first saw the ship about two minutes before the collision, which was then unavoidable.  We had not time to tack within these two minutes.  When I saw the ship I put the helm hard a starboard.  I wanted to cross her bows'; we were crossing the tide at the time. I expected to pass about two hundred feet a-head of the ship by putting the helm a-starboard.  I did not observe that the ship was going towards the Shanghai side of the river.  I saw Europeans on the Exonian's forecastle, but I did not see them make any signs.  The European who was on board the schooner struck me on the head when he came on deck.  I was struck after the collision.  Nothing was said to me when I was struck.

TO THE COURT: - If the helm had been put to port the collision would not have been avoided.  All the crew were on deck at the time of the collision, seven Chinamen and one European.

ALEX. GRANT said: - I have been piloting for about three years.  I went down yesterday to see the place where the Dot sank.  Thos is the chart which I made of the place.  The soundings on the admiralty chart are not correct.  There are two fathoms and a half at the place at dead low water and not thirty as by the charts.  We usually follow the Pooting shore when bringing a ship up.  I would never bring up a ship with steam over the place where the schooner sank.

WIN LA-KING, re-examined, said: - I have been two months second louda of the Dot.  I have been ten years working in vessels.

Mr. MYBURGH had to submit that no blame whatever was to be attached to the bark Exonian. On the contrary the accident had happened solely through the negligence of the Plaintiffs who had ample time and opportunity to have prevented it.  The steamer was under the charge of Captain Parkes who had for several years been in command of steam vessels on the river, and the ship was being piloted by Mr. Bain, who was one of the best known and most skilful pilots on the river.  The schooner ought to have ported her helm being 2 ½ or 3 points on the steamer's port bow. The defendant had no occasion to go out of his course but he did more than the law required, he put his helm to port to allow the schooner plenty of room; they had also reversed their engines and were therefore getting out of the way according to rule.

WILLIAM BRUCE BAIN said: - I am a pilot on this river.  I have been piloting for six years on this river.  I brought up the ship Exonian.  At the time of the collision I was walking on the poop of the ship with Captain Parker of the steamer.  I noticed the schooner before she made the last tack; I saw her change her course.  At this time she was fully two and a half points on the steamer's port bow.  When I saw her keep off I put the helm to port and also the helm of the steamer.  If I had starboarded the helm I could not have avoided the collision.  I then ordered the engines to be stopped and reversed.  This was about one or two minutes before the collision.

There elapsed about two or three minutes from the time that the steamer changed her course till the collision. M The schooner had the wind E.S.E. from the time of her tack, and could have kept her course.  It is deep water from bank to bank at the place where the collision took place.  The soundings given on the latest chart are nearly correct.  It was a minute and a half or two minutes after the collision before we got stern-way enough to clear the wreck.  But we had sternway on half a minute after the collision.

To Mr. EAMES: - Had the Dot kept straight on her course, she would have gone clear and under our stern.  We might have been going about five knots an hour. We changed our course about two points.  The Dot was going ahead at the time; had she kept her course we would have passed parallel two ships' lengths clear.  There is a bank on the Shanghai side at the place of the collision.  There is from four to five fathoms at the place.  We could have cleared the wreck in a minute or in three quarters but we waited to see if the men required assistance.

TO THE COURT: - There was no other vessel in the reach at the time I ported my helm; we were coming up mid-channel.  We did not blow the whistle, as I did not anticipate the collision.  I heard the Chief Officer shouting and saw him waving to the schooner.  I thought that the schooner wanted to speak to the barque but that was not the reason of my changing our course.

JEPTHA B. PARKES said: - I am master of the steamer Hercules.  I have been several years on this river.  My steamer brought the barque Exonian up the river.  I had been down at dinner and had come on deck about two minutes before the collision.  I saw the schooner Dot standing across out bows; she appeared to have just made a tack.  We had stopped at the time of the collision and had rung the bell to go astern.  The collision was caused by the Dot standing across our bows, together with the shear of the ship.  No one would have supposed that the schooner would have kept off in the way she did; I thought she would have crossed under our stern.  The Exonian was coming up min about mid-channel, tasking the same course which vessels generally do.  I think the schooner wass about two points on the steamer's port bow when I first saw her.  I was in my pilot-house.  The Dot was going with the wind free.

To Mr. EAMES: - There is a bank where the schooner now is, but not where the collision took place.  I had nothing to do with the piloting of the ship.  I do not think that thr barque would have gone clear of the Dot by keeping her course, but she would have done so had she not put her helm to starboard.

THOS. JAS. MANN: - I am master of the Exonian.  I came on deck about two minutes before the collision.  The Dot was about three points on our port bow.  When I first saw her she was going down the river almost parallel with us.  She changed her course by putting her helm starboard to cross our bow.  The order to stop the engines was given by the pilot about two minutes before the collision took place.  I think if the Exonian had starboarded, the collision would have taken place sooner.  When I first saw the Dot she was by the wind.  I heard the chief officer sing out ton those in the schooner from the forecastle but I did not hear what he said.

Mr. EAMES: - There was about a five knot breeze.  I think we were going about five or six knots through the water.  We struck the schooner at about right angles.  If we had put out helm to starboard we should have struck her sooner.

TO THE COURT:- I heard the European who was on board the schooner make use of an oath to the Chinaman who was at the helm, and tell him that it was his fault.

Mr. EAMES thought the evidence was not of much service and that the Court must take the probabilities of the case.  Mr. Bain was subject to great forgetfulness; he had stated that Captain Parkes was walking with him on the poop at the time of the collision while the fact was that he was on board his own streamer.  The rest of his evidence might be affected in the same way.  He (Mr. E.) thought the defendants had made their story a little too strong in some things.  It was difficult for those on board a vessel which was being taken up by steam to tell how the wind was.  It was the duty of schooner to keep out of the way and go under the stern of sailing vessels, which the Defendants did not do; he fancied that if it had been one of Her Majesty's vessels instead of a boat with Chinamen on board, the defendants would have acted very differently.  He begged the Court to remember that the pilot had lost his boat and consequently his means of livelihood.

After a short interval, judgment was given for the Defendants with costs, on the grounds that the schooner had time to get out of the way.  The Court considered that no blame attached to the Exonian.

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