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Colonial Cases

Smith, Kennedy and Co. v. Orchard, 1865

[bill of lading]

Smith, Kennedy and Co. v. Orchard

Supreme Court of China and Japan
13 November 1865
Source: The North-China Herald, 18 November 1865



Before C. W. GOODWIN, Esq., Assistant Judge.

November 13th, 1865.


Claim for Tls. 217.80, on account or short delivery of cargo ex ship Peterborough.

Mr. ROBINSON for the Plaintiffs.

Mr. EAMES for the Defendant. 

   Mr. ROBINSON said that this was an action of a very simple character.  The Bill of Lading was for sixteen cases of merchandise consigned to Smith, Kennedy & Co. Delivery took place on the 22nd and 25th of July, eight cases having been delivered on the first day but only seven on the 25th.  The plaint was therefore for the short delivery of one case only.

   W. BRAND said: - I manage the shipping business of the plaintiffs.  All their shipping business passes through my hands.  Messrs. Smith, Kennedy & Co. are the consignees of this Bill of Lading (handed in.)  We sent an order for all the goods which we had on board the Peterborough to Messrs. Jardine, Matheson & Co., the agents for the vessel.  This delivery-order was countersigned and stamped by them and handed to the Shanghai Cargo Boat Company.  On the first day, July 23rd, we received eight cases (Nos. 630, 31, 33, 34, 38, 39, 40, 410); on the 26th we received seven (Nos. 635, 36, 37, 41, 42, 43, 47.) Towards the latter end of August I wrote to Messrs. Jardine, Matheson & Co. stating that we were a case short and asking why it had not been delivered.  I received a reply on September 7th, in which they stated that the Captain would see after it and call and inform us of the result.  We then sent in a claim and had it returned. (Some further correspondence relative to the missing case wass read and handed in.)  We are still one case short.  This is the invoice of the goods.  The claim for Tls. 217.80 is not unreasonable.  It only includes the first cost, the shipping charges at home not being included.

   To Mr. EAMES: - I know this is the invoice of the goods short delivered.  I have received invoices from the same house before.  I have seen the letter which contained the invoice.  It did not state that there were only 15 cases sent.  I believe one or two cases of these goods have been sold, here or at the out-ports.  I do not recollect which cases were sold or the prices obtained for them.

   H. J. BILL said: - I am manager of the Shanghai Cargo Boat Company.  I received the stamped permit for Landing these goods. I took a copy of it and directed my people to get 16 cases marked as in the permit.  After copying the delivery-order I generally send a European to see whether any goods are at hand.  I sent my assistant on this occasion.  We received information that they were at hand.  I sent a boat for the goods, with a printed boat-note.  We duly received eight cases.  On July 25th I sent another boat with another boat-note for the remaining eight cases.  A different boat-note was returned which specified seven cases.  We received these seven cases and no more.  I have had considerable experience in receiving goods from ships.  The usual practice is for the chief officer to ask the boatman how many packages he has in his boat, before he signs the boat-note.  These boat-notes are intended for the protection of the ship and of the Cargo Boat Company.

   To Mr. EAMES: - I did not see the goods as they came out of the boat.  I left that to others.  I have never seen the cases.  It was a Chinaman who went for them.

   J. MAIR said: - I am assistant to the Shanghai Cargo Boat Company.  I received a permit to land these goods, which I delivered to the chief officer of the Peterborough. On the 25th July I made out a printed boat-note for the Chinese boatman to get signed by the chief officer.  On the afternoon of July 25th I went on board the vessel and saw the cargo-boat alongside.  I saw this boat-note in the lowdah's hand on board the vessel.  He said that there were five packages damaged, and that he had altogether in the boat thirty-three pieces.  The cargo-boat went away shortly after. That same afternoon I asked the chief officer whether there was anything more.  He said it would be as well to send down another boat next day in case any more goods should turn up.  He also asked me for a memorandum of the marks and numbers of the packages I wanted.   This I took to him on the following morning.  This note contained one case marled T.T.T. in a diamond.  On the morning of the 27th I went on board again, when the chief officer told me that I had received the whole shipment.  I told him that I had probably made a mistake and would see on my return to the office.  On looking over the Books in the office I found that I was correct.  That afternoon or the next morning I went and told him, and he said that when the cargo was turned out I would get it.  I never got the case.

   I afterwards went on board with our Compradore and the boat-notes.  This was on September 1st or 2nd.  I asked the chief officer to show me his book containing a memo of the cargo delivered. He did so, and I found that he had 16 numbers entered.  This is the book (handed in.)  I told him that it looked rather suspicious; that the ink of the last number looked darker than above, and he might have entered the last number after the signature had been given.  He said that he would swear that he did not do so.  He told me the boatman had signed a receipt in Chinese for sixteen cases in his (the mate's) book.  The Compradore said that the Chinese characters in the book meant five damaged pieces.  I shewed the chief officer the boat-notes for eight and seven cases.  He said that putting seven instead of eight must have been a mistake of his.

   To Mr. EAMES: - I saw the boatman go away.  When I went to the office I compared the boat-notes with the copy of the delivery-order and found that I had made no mistake.  There were two cases of one number.  No European superintended the landing of the cases.

   To Mr. ROBINSON: - When on board the Peterborough I did not see any of her people on board the cargo-boat.

   The Consular linguist was called to translate the note made by the Lowdah in Chinese in the mate's book.  The characters meant, "damage by water, five pieces."

   LOK-TA-FO said: - I was lowdah of cargo-boat No. 279 on July 25th.  On that day I went to the Peterborough to get goods.  I received a printed paper like this boat-note to take on board.  It had a red stamp on it.  I am in the habit of getting a paper of this kind when going to get cargo.  I gave it to the chief officer.  I was loaded after the other boats.  When I was loading, the second officer of the Peterborough came into the boat twice.  The first time he ordered the damaged packages to be taken up.  I objected to receiving these packages and the second officer came on board to look at them.  They were not taken up.  The cargo boat would hold over 400 piculs.  There were then 33 packages on board the boat.  The second officer went down again and counted them.  The chief officer then gave me the boat-note.  I wrote this Chinese in his book.  I was going to write more when the chief officer said, "can do, can do.": I would have written that there were altogether 33 pieces had I not been prevented from doing so.

   I left the ship after four o'clock and got to Shanghai at about five or half past five o'clock.  On arrival the second manager of the cargo=-boats came to count.  I shewed him the damaged goods.  Another person then came and put sealing paper over the boat.  They were found all right the next morning.  Before giving me the boat-note, the mate asked me how many pieces I had on board, and I said thirty-three pieces.

   To Mr. EAMES: - The second officer came into the boat before I had got the boat-note.  The secure papers printed in Chinese and English were pasted on that night.

   A-CHUNG said: - I am second manager for the Cargo Boat Company.  On the 25th of July I gave a printed boat-note to the last witness, to take to the Peterborough. On the return of the boat I was sent to inspect some damaged goods said to be on board.  I counted thirty-three pieces in all and this corresponded with the number on the mate's boat-note.  The boat being large it was easy to count the packages.

   A-HUNG said: - I am overseer for the Cargo Boat Company.  It is my business to lock the boats at night and to open them in the morning.  I recollect locking up cargo-boat No. 279 after counting the goods. I then put on seals.  I found them unbroken in the morning.

   To Mr. EAMES: - I don't know where the Peterborough was lying.  My business is to lock yup the boats, not to count the goods.

   Mr. EAMES said the question was merely one of fact.  It would be shewn that the identity of figures in the numbers of two of the bales was accidental.  He submitted that the instances of cargo being robbed by Chinese were very frequent in Shanghai, and there could be little or no doubt that in this case the bale was lost between the ship's side and the shore.

   R. YHAMON, chief officer of the Peterborough, said: - I have been attached to the Peterborough for upwards of three years.  I was in the ship on duty when she was loading in London.  I signed receipts for the goods.  The clerk entered these goods.  Every entry in this book wass put in by the clerk.  I stood by while the cargo was taken in.  It was noticed then that two cases were of the same number.  I delivered the cargo here.  The lighter-man wrote something in the cargo-book which I supposed was a receipt for 34 packages.  I usually make them do so.  Before making him sign the account, I told him there were 34 packages.  I am sure the account is correct.

   When they came out of the hold O called Captain Orchard's attention to the fact that there were two cases of the same number.  I put the case into lighter 279.  The second officer was in the hold when the cargo was being discharged.  I don't recollect any one having gone into the lighter.  There were three of the crew standing by when the bale in question came up.

   To Mr. ROBINSON: - They saw me slue the case round to the Captain to see.  Two of the men were at the side of the rail and one at the winch.  I saw these entries made on a harness-cask when we were loading.  I gave receipts in accordance with the entries.  I have delivered several packages without a boat-note, but have never sent sample packages with others entered in a boat-note without entering the former also I have never been in Shanghai before.  In some places it is the custom for consignees to send for the sample packages immediately.  I told Captain Orchard that this was the second case of the same number.  He did not see the first one, but I had got a receipt for it.  To my knowledge no one from our ship went non board the cargo-boat.  Nothing was said to me or any body else about the goods being damages.  No one kept tally with me.  There was no tide-waiter on board.  Four boats were loaded that day.  As soon as I put the cargo out I make an entry in the book.  I swear I did so in this instance.

   TO THE COURT: - I intentionally omitted to mention the sample case in the boat-note.

   B. ORCHARD said: - I am master of the ship Peterborough.   I was walking on the poop when the case in question came up.  The mate called my attention to it, stating that it was the second case that had gone out with the same number and mark.  I told the mate to make a memo of it in case of any dispute arising about it.  I saw that case placed in the lighter.  I did not notice the number of the lighter, but I remember the sample case going in a little before.

   To Mr. ROBINSON: - I consider the boat-note system to be no benefit to a ship.  My attention wass called to the sample case, because it was unusual for such cases to go amongst the large cases.  I saw the disputed case and its mark and number from the poop.

   R. MURRAY said: - I am a seaman on board the Peterborough.  I remember the mate calling the Captain's attention to the mark and number of a case of merchandise.  He said that one had already gone with the same mark and number.  The number was 633.  I was standing on the rail.

   To Mr. ROBINSON: - The mate called the Captain's attention to it.  It was delivered at about 10 o'clock and the sample case was delivered a few moments after.  I noticed a small case handed into the same boat.  As nearly as I can remember there were some other cases out into that boat but I did not see any damaged cases going in.  I can't say at about what time the boat finished loading.  I did not see any one leaving the ship to go on board the cargo-boat.  I did not hear the boatman say how many packages he had, but the mate always asked to have the receipts signed.

   MILNE said: - I am an apprentice on board the Peterborough.  I was on board and on duty while the cargo was being discharged.  I remember the mate calling the Captain's attention to one case.  It was on deck at the time, coming up the main-hatch.  I was standing at the gangway.  The Captain and I looked at it.  The mark was three T's in a diamond, M below, and the number 633.  The mate called the Captain's attention to it as it was the second case with the same mark and number.  There was a man at the winch.

   To Mr. ROBINSON: - This took place at about 10 o'clock.  I am sure I heard the mate call the Captain's attention.  The Captain told him to make a memo of it.  I saw other cases, but not a sample case.  I can't say whether on the same day some other cases of the same mark were delivered.  I could not see over the railing without leaning over it, so I don't know what cargo-boat it was put into.

            CHICHESTER said: - I am an apprentice on board the Peterborough.   I was on board and on duty while the cargo was being discharged.  I remember the mate calling the Captain's attention to a case coming up.  It was on the 25th July.  I know that, for when I heard the case was missing I referred back.  The case came out of the hatchway, and the mate asked the number.  He said there was a case of the same number before.  He spoke to the Captain who came to the end of the poop.  The Captain told him to make a memorandum of it.  I saw the mark and number.  It was 3 T's in a diamond and an M No. 633.  I saw the case go over the side.  I was heaving cargo out of the hold at the time.

   To Mr. ROBINSON: - I don't know at what time this occurred. I was heaving at the winch.  I didn't see the second mate, but I heard him.  I heard noting about damaged goods.  I saw some brought up.  I didn't know that there were any damaged goods put into the lighter.  I know of no one going on board.  It was early in the morning when this occurred.  I heard the mate say some days after, that there was a sample-case, but not on that day.  I don't know whether any more cases of the same mark went over the side that day.

   Mr. EAMES said he had but very few remarks to make.  It was impossible to believe that the boys whose evidence they had heard were guilty of perjury, or had been influenced in any improper way in their testimomny7.  As a question of fact there could be no doubt that the box or case in question was put bon board the lighter; the boys noticed it inasmuch as they found the Captain and mate's attention drawn to it, and the Captain and mate (unless they had been guilty of the most elaborate perjury, which there was no reason to imagine for a moment) had particularly remarked it.

   There was, it is true, much carelessness in the matter of sample cases. They are out in the cabin, and sent on shore as soon as there is opportunity.  It is not the duty of the mate to send cargo on shore, while it is the duty of owners or consignees to send responsible people to take delivery.  Under the present system both Captain and consignees are at the mercy of the Chinese, who may write a Chinese proverb or any other nonsense in the book instead of giving a receipt.  The blame lies not with the mate but with the consignees who send men who know no English and will sign anything. It might be said that the entry was in a suspicious place at the end of the page, but this is merely a coincidence, as some entry must necessarily be last. 

   Of course, it was possible that the entry was made after the signature, just as it was possible that the Captain and all the other witnesses perjured themselves.  The question at issue was of the utmost importance, although the sum involved was trifling, as the decision of the court would have a material effect on the practice of taking delivery of cargo which had been introduced for the sake of convenience, but by which consignees frequently lost heavily.

   Mr. ROBINSON thought his learned friend had scattered some unnecessarily harsh words through his speech.  He (Mr. R.) had no intention of charging any of the witnesses with perjury.  If the case did go over the ship's side, it must have gone into the wrong boat, and that was the explanation he was disposed to accept. The system now adopted is very convenient, and is also perfectly safe, for all the cargo-boat lowdahs know the Arabic numerals, and have received orders to sign for numbers and numbers only.  The lowdah had explained why he noted the seven damaged cases.  He was quite justified in doing so, and any prudent European would have done the same. The evidence of the mate is open to some suspicion, he is not a disinterested witness, inasmuch as he would have to pay for the missing case if the verdict was for the plaintiffs.

   The question resolved itself into - Yes or no, did the defendants deliver eight cases into the boat. The mate, with the book before him, stated that he had deliberately omitted one case.  He admitted having made at least a mistake, for while he now says he put eight cases in, he bold the Cargo Boat Company that he had put in only seven.  Therefore on the broad principle that people who are careless should suffer rather than those who are perfectly innocent, the ship should bear the penalty.

   THE JUDGE, in delivering judgment, said: - The evidence adduced by the defendants is so clear that I have no doubt that No. 633 (2) was put into the Cargo-boat. I think that, extraordinary as it may appear, there actually were two cases with the same number.  The delivery to the Cargo Boat Company was further a sufficient delivery to the plaintiffs, and [that seems] sufficiently established.  The signing of a boat-note seems to be done merely for convenience, and in this case led to loss. Finding seven cases put down by mistake on the boat note some party or parties must have abstracted the one case found over.  That is a sufficient explanation of the circumstances, the statement of the chief officer being entitled to credence.

   The verdict was therefore for the defendants, with costs.

   Mr. ROBINSON thought that as the case confessedly arose from the defendants' neglect, no costs should be given. 

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