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Colonial Cases

Porter v. Duus, 1865

[libel - Consular Court, jurisdiction]

 

Porter v. Duus

Consular Court, Hakodadi
26 October 1865
Source: The North-China Herald, 9 December 1865

 

HAKODADI.

H.B.M. CONSULAR COURT.

Before F. H. VYSE, Esq., H.B.M. Consul.

HAKODADI, October 26th, 1865.

 

ALEX. P. PORTER versus JOHN H. DUUS.

The following was the plaint:-

That Mr. John H. Duus has libelled me through Messrs. Alfred Howell and C. Gartner, in that he has stated that my survey, in conjunction with that of Captain F. Mappelder, Dutch barque Jacobus Martinus, of the French barque Omer et Julie, was a false one and that I am not a master mariner and therefore not competent to give a survey report.

The defendant denied the truth of the plaint in part.

The plaintiff further added as follows:-

In addition to the plaint I can simply say as regards Mr. Duus that I have nothing more than what is stated in the plaint to bring against him, except that I have been scandalisee by some one among the community for some time past and that this is the first time I have been able to bring it home.  I have known Mr. Duus for some time past to have acted in an underhand manner, and bring mischief about, and also as a tale-bearer and tittle-tattle.

The following evidence was then elicited:-

C. GARTNER, of the firm of Wilkie and Gartner, said: - Mr. Duus told me that he did not care about Mr.  Porter's survey report, he not being a master mariner and therefore incompetent to survey.  Mr. Duus did not remark that Mr. Porter had given a false survey to do him an injury.

... A. HOWELL said: - Mr. Duus never said to me that Mr. Porter's survey of the Omer et Julie was a false one.  Mr. Duus never said anything to me about Mr. Porter not being a master mariner.  I only remember the occasion of Mr. Porter asking him if he did not know he (Mr. P.) was a master mariner, and on the occasion of the assault.  Mr. Duus never asked me to write to Messrs. Dent & Co. or others, to condemn the survey report of the Omer et Julie.  I never saw the survey repot until yesterday (25th.)  He asked me, if the survey of the barque by the officers of the Princess Royal was not satisfactory, to write and have th4 vessel surveyed at Shanghai.

TO THE DEFENDANT: - During our conversation of the 17th or 18th October, I cannot say that you spoke ill of Porter, regarding the survey.  You said something about the survey report being done to injure you.  You did not mention anything about Porter's survey report when you applied for Insurance for the barque, handing me the survey report of the man-of-war and asking for insurance; I telling you that I could not give it but would write down to Shanghai about it.  You never stated that the survey report was false.  You never stated to me that Porter was not a master mariner and was not competent to survey.

TO THE PLAINTIFF, THROUGH THE COURT: - On no other occasion did Mr. Duus question your being a master mariner.  In refusing to take a risk on the vessel I might have been influenced by the reports I heard; not from the survey report, not having seen it before yesterday.  Those reports came from Mr. Duus.  He said he believed the report was done in such a manner as to injure him.  He did not assign any reason that you should give a survey report to injure him, neither did I make any inquiries of him about the matter.  Mr. Duus did not offer to shew me your survey report of the vessel, neither do I remember asking him for it.

TO THE DEFENDANT, THROUGH THE COURT:-  I do not remember, on the afternoon previous to the departure of the Fusiyama, your asking me if I would insure the Omer et Julie and my saying that I had heard she had not  got a clean survey report and this influenced me in my shipping by her.  I cannot remember the circumstance.  Mr. Allinson, who was with me at the time, does not remember it.

J. J. ENSLIE   said: - I have been told by Mr. Duus things which have been told me as a friend.  If I had not been a friend of Mr. Duus he would probably not have told me.  When there has been scandal about I have not only heard Mr. Duus's name but others made use of in such a way as, "Oh, it is only old Duus."  I cannot exactly remember Mr. Duus carrying tales concerning Wilkie and Porter to the Abbe Mermet, likely to cause irritation.  With regard to his having come personally to the Abbe Mermet with tales, and generally with a view to causing irritation, I cannot say.  With regard to myself I can only repeat my former answer - anything told to me was told as a friend.  Most decidedly I never knew Mr. Duus shew a disposition for mischief-making between parties.

J. H. DUUS said (to the plaintiff):- I decline to answer why I should suppose that you would give a survey of a vessel to injure me.  I decline to answer why I should question your professional ability as a master mariner, and also the right of your signing yourself as such.  I have to do with your report upon the Omer et Julie which you were called upon to make by Mr. [Wenve] (French Consul), because I was shipping a full cargo in that vessel.  I decline to answer whether I refuse the report because your name is attached to it.  As I told you before I have only known you as mate of a steamer between Hongkong and Canton.  I cannot say for certain how long I was in Hongkong after the end of 1852.  I can't say for certain whether I was there in 1853 or 1854.  I remember a steamer called the Queen, building at East Point in 1853.  I was not aware that you superintended the finishing of her and took command of her.  I remember very well a clipper schooner called the Island Queen, on the China coast.  I do not remember who commanded and took her to Sydney in 1854.  I do not remember a Peruvian brig called the Clereta.  I do not remember an English barque, the Wellington, in 1856.

TO THE COURT: - I have no reason for declining to answer plaintiff's first question.  I decline to answer his second because I do not believe that he is a passed master before the Board of Trade.  I decline to answer his fourth and fifth questions because I do not think he has any right to ask them.  I think I began to put cargo into the Omer et Julie a day or two before the Fusiyama left.  What with my own and Mr. Howell's cargo I fill the Omer et Julie.  When I commenced to ship in the Omer et Julie I did not know whether the vessel had been surveyed or not.

... A. P. PORTER said (to the Court):- There was no cargo in the Omer et Julie either on the 8th or 10th of October; simply some stores apparently, and ballast.  I cannot tell the date of the French barque's arrival or to whom she was consigned.  I did not arrive in Hakodadi until September 15th, and the French barque was then here.  In your question to Mr. Duus you refer to certain dates and certain matters.  I cannot call to mind any particular circumstance during the years mentioned.  I would add that all the vessels named, viz: the Queen, Island Queen, Clereta and Wellington, were successively commanded by me.  I do not tbhink the defendant could possibly have been in two places at the same time.  I am a master mariner.  I received my appointment as a master mariner in Peru.  I received my government paper in Peru.  A passed master is a passed master mariner in any port I have visited.  Neither on the coat of China nor anywhere else did I ever know of a vessel being commanded by a man not a master mariner.  In the event of a captain dying the mate might be put in charge but then only with the approval of his Consul.

This closed the case for the prosecution.

The defendant having been called upon hjis defence, stated as follows: With regard to the survey I deny that I said Mr. Porter's report was "false," but I do affirm that it is my belief he is not a passed master before the Board of Trade, and I, as a merchant, maintain that any survey report he may give is not valid in my insurance office.  As a proof of his incapacity I am prepared to produce the second survey report which was held on board thje Omer et Julie by officers of H.B.M.'s Princess Royal, which contradicts completely the previous survey report of Mr. A. P.  Porter.  Regarding my statement that Mr. Porter was not a master mariner, I would say that although a report reached me that he has or had a Peruvian certificate, I am convinced that, even supposing this to be the case, he cannot according to English law be considered a passed master; such title requiring the recipient to pass before the Board of Trade, and moreover I wish to ask the Court to ask the Captain of the Omer et Julie to give his opinion about what certificates a master mariner ought to have.

The Court having duly considered the depositions taken on oath before it, was of opinion that in accordance with the recent Order in Council of March 9th, 1865, clause 39, in the chapter headed "Jurisdiction and Authorities of Her Majesty's Consuls," that the cause in question was fit only to be determined by the Supreme Court at Shanghai.

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