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Colonial Cases

Innes and Co. v. Kiukiang, 1865

[bill of lading]

Innes and Co. v. Kiukiang

United States Consular Court, Hankow
18 April 1865
Source: The North-China Herald, 6 May 1865

 

U.S.A. CONSULAR COURT.

Hankow, 18th April, 1865.

Before - G. H. C. SALTER, U.S.A. Consul.

J. COOLIDGE, S. W. POMEROY, Associates.

INNES & Co. versus Str. KIUKIANG.

The plaintiffs in this case claimed Tls. 294.63 for 70.15 piculs of seaweed short delivered on a consignment of 935 piculs.  The Court decided in favor of the defendants on the following grounds.

It is true that the Bill of Lading represents that the net weight of the seaweed was 935 piculs.  A Bill of Lading is supposed to be a true representation of the article or articles shipped, as such the commercial community makes advances as they would on Bills of Exchange or any other negociable paper, and any decision which tends to invalidate such evidence of value should be carefully guarded against.  Circumstances, however, may occur, as in this case, which may neutralize or materially lessen the value of a Bill of Lading. Messrs. Innes & Co. base their claim solely upon the amount of weight as stated in the Bill of Lading and yet at the foot off this same Bill of Lading it is clearly printed, "weight, value and contents unknown."  All Bills of Lading are printed thus, and the reason is too obvious to require comment here.  In fact, when this particular Bill of Lading stated the weight, it was an informality, and an action should not be brought on such an irregular proceeding.  The weight seemed to have been stated for the convenience merely of estimating the freight.  Mr. Taylor, the 1st Officer of the steamer, on his examination stated that when the bales were brought on board he found them in very bad condition, not "in good order."  I notified Mr. Oppert, the shipper, to that effect and he wrote as follows (note produced in Court),

Dear Sir, - The difference of weight in the bales of seaweed is known to me.  I therefore request you to make no remark on the Bill of Lading on that account.

(Signed) Emil Oppert.

To Commanding Officer, str. Kiukiang.

Mr. Taylor further stated, "the cargo is always under lock and key and is never weighed."  Mr. Pomeroy, one of the associates, is frequently called upon to judge of the natural loss of weight on Japanese Seaweed on a voyage from Shanghai to Hankow.  He stated that it averaged 5 per cent.  Mr. Coolidge, in the Custom-house, has superior opportunities of observation, and has stated that the Kiukiang arrived here on the 20th February, and 13 days after, on the 8th March, 200 bales, weight piculs 273, were transported under transit pass into the interior.  He made the following memo.

Comparative weights.

B .................  P. 916 = 935B ........... 300 = P. 272

Average say P. 1.02 Average ....  P. 0.91

Difference on 916B at 11 Cat. Os piculs 100.76

  935.00

 100.76

 --------

834.23

 

The average weight of the 300 bales sent to the interior was positively ascertained at the Custom House.  Taking this as a basis, the Court feel assured that the entire amount of seaweed shipped at Shanghai by Emil Oppert in the steamer was delivered there. M As the freight was paid on P. 905, the Court decree that the overplus shall be refunded to Messrs. Innes & Co.  The Court severely censure the 1st officer of the steamer for giving a clean receipt which led to a clean Bill of Lading.  In view of Mr. Oppert's note and his own observation of the "bad condition" of the seaweed, it was his duty to decline to receive it unless both Messrs. Olyphant & Co. and the shipper fully understood the matter and gave a Bill of Lading in accordance.

(Signed)  G. H. COULTER SLATER, U.S. Consul, Acting judicially.

Associates (Sd.) S. W. POMEROY, Jr.  (Sd.) JAMES COOLIDGE.

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