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Colonial Cases

The General Meslin v. The Promise, 1865

[shipping, collision]

The General Meslin v. The Promise

Consular Court, Shanghai
1865
Source: The North-China Herald, 14 January 1865

 

H.B.M. CONSULAR COURT.

Before Sir HARRY S. PARKES, K.C.B., H.B.M. Consul.

Lieut. PRINGLE, Lieut. [STODDARD], E. A. REYNOLDS, Esq., Capt. PARTRIDGE, Assessors.

E. PARNET and OTHERS versus "Promise."

January 9th.

   The decision of the Court having been given in favour of the General Meslin in the question of collision, the following evidence was adduced on either side in reference to the estimate of losses alleged by the plaintiffs.

   Mr. EAMES, in opening the case for the plaintiffs, remarked that there would doubtless be a good deal of discussion as to what the measure of damages should be.  The burden of proof was on the defendants to shew that loss was owing to misconduct on the part of the plaintiffs.

   (Mr. Eames quoted Parsons on Maritime Law, vol. 1, page 210, to prove that if a vessel be damaged through another vessel running into her, it is her duty to endeavour to get into port, but if the vessel be sunk it is not incumbent upon the owners to put themselves to any expense.)

   He contended that the owners were not bound to go to immense expense with the vessel when there was very little chance of succeeding.  It was usual in the case of a passenger losing his personal luggage, for the loss to be supported by his own unsupported personal testimony.  Captain Parnet would prove the loss of certain packages of goods which he had purchased in Hongkong and which the mate had seen brought on board.  He (Mr. Eames) would also ask the Court to allow compensation for the captain and other passengers, for the time spent here on account of the collision.

   (Pritchard's Digest was quoted to prove that a person damaged by the fault of another is entitled to full compensation; and Chitty on Contracts, to shew that the plaintiffs in the present case might sue for damage incurred subsequent to the commencement of the action.}

   As to the Insurance: - In Admiralty the insurer was entitled to appear himself to claim damages.  It was not so in Common Law, but he (Mr. Eames) considered the difference was only in form, and that the right of the insurer is the same in Common Law as in Admiralty.  The Captain was the agent of the underwriters in recovering the damage, they having paid the total loss.  Captain Parnet had been detained here for a lengthened period and this was a natural consequence of the loss of the ship, for under such circumstances it was his duty to remain.  He (Mr. E.) would therefore ask the Court for compensation, it being only common justice to do so and what an Admiralty Court would undoubtedly allow.

   However, in settling damages the rules of Admiralty Courts could not, of course, be taken in Common Law.  It remained for the defendants to prove that ordinary diligence had not been used by the plaintiffs, and if the Court should decide that there had not, damages should be deducted only for what could have been saved by the exercise of ordinary skill and diligence.

   E. PARNET, through the medium of an interpreter, said: - This is the list of my personal effects lost.  All my linen and clothes were lost.  Twenty-four pairs of shoes, linen and the clothes I wear at sea were lost.  I also lost books and instruments.  I can hardly make out what I lost.  This is a list of the goods I bought in Hongkong.  The prices are correct.  I have been living with Mr. Vaucher since the loss of the vessel.  I don't know exactly what will be the expense.  I wait here until the accounts are settled.  I get fcs. 200 per month and 5 per cent on the freight.  Altogether I have from nine to ten thousand francs per annum.

   To Mr. MYBURGH: - I have stated before that there was a half-poop on the General Meslin.  My cabin was on the starboard side below.  My cabin was about six feet square.  I kept all my books, clothes, charts, &c. in my cabin.  Some of the latter were hanging in the saloon.  I had my clothes packed in two trunks.  My linen was in lockers.  I bought all my clothes for fcs. 4,000 and did not save anything.  I bought them since I left home.  I will swear that they were worth Fcs. 500.  I saved nothing and lost several books, which I did not count.  On the day after, the water was up to my neck in the cabin, and I could not attempt to save anything.  I went on board and ordered the chief officer to save all that he could on the 3rd.  It was impossible to enter the cabin; things which were floating about only, were saved.  The water at Woosung is fresh.

   [Some discussion ensued as to the list of articles saved from the General Meslin, which the witness asserted to be in existence.  The Court said it was to be regretted in the interests of the plaintiffs that he should have omitted to bring that list, and requested that he would immediately write to the French Consulate for it.

   Mr. Myburgh explained that it was essential that it should be produced, as it was possible, by contrasting this list with evidence as to what had been found in the cabin when the General Meslin was raised, to ascertain the correctness of the list of property handed in.  Mr. Eames had not before known of the existence of the list; he had been trying to get one for some time.  A notice was dispatched for the list.]

   I had more tan sixty volumes of books on board.  I had several books worth 60 fcs.  I had eight volumes on navigation, of which I do not know the value - some 124 fcs or 16 fcs a volume.  I had no other instruments besides the barometer, chronometer, sextant and compass.  These things do not belong to the ship.  I had the general charts.  I had more than a hundred and fifty.  The gold watch has been found, but it is useless.  The chief officer has it.  The silver watch has not been found, nor has the pistol.  I cannot tell whether the missing things were stolen.  All necessary precautions were taken to prevent people going on board.  Many things which were saved at the time of the wreck and thrown into the lighter, disappeared.  The sextant and quadrant were saved and I do not claim for them.  I have saved my chronometer.  All that I lost was a small box of mathematical instruments, and the thermometer.  I value the first at 46 fcs, the second at 70 fcs, but I do not know the price of the thermometer - less than that of the barometer.  I had more than 250 different charts and plans.  Some cost L. 3.  Most of these things have been damaged and broken.  I saved forty of the cases.  I have never insured my personal effects.  Some do, others do not.

   To Mr. EAMES: - The chronometer was saved by the chief officer when the vessel was sinking.

   TO THE COURT: - The small compass I speak of was over my bed.  Somebody had been using the gun a few days before and it was lying in my cabin.  The gun was double-barrelled.  The pistol was a long double-barrelled one.  Some of the ship's guns have been saved when the water was slack.  The barometer and thermometer belonged to me.

   Mr. MYBURGH submitted that the plaintiffs were not entitled to the amount claimed by them.  It was true that judgment had been given to the effect that defendants had been guilty of negligence, and therefore the plaintiffs were entitled to a certain amount of damages, but the question of how much was as yet undecided.  There was no case known in which a Captain of a vessel received compensation for detention, if indeed it was ever claimed.  The detention in this case was not a consequence of the collision, and although considerable time did elapse between the time of the accident and the trial of the case, this injury was not caused by defendants, but by the necessary delay in the calling on of the suit.  It could not therefore be considered a natural or direct consequence of the collision, and accordingly this claim was not maintainable.  The plaintiffs did not assert that the barque was run down wilfully, deliberately or intentionally, or that efforts were not made to prevent it when found to be inevitable.

   [Mr. Myburgh quoted authorities to shew that damages depend on the manner in which an injury is produced; whether it be almost an accident, or done wilfully.]

   The Captain of the General Meslin sued for loss in respect of goods, his property.  The claim is too remote and could not be taken cognizance of.  The doctrine affecting insurance and abandonment should apply in this case.  In cases of insurance, the Captain of a vessel is obliged to do for his insurers what a prudent man would do for himself.  His learned friend had asserted that the submersion had made the vessel a total loss.

   (Cases from Arnold on Marine Insurance were quoted to shew that a Captain is not to leave a stone unturned in order to save his ship, and of he does not do so, he is not entitled to claim for total loss.  if the expenses of raising the vessel be less than her value, he must raise her; if not, she is to be sold.)

   The submersion of a ship does not authorise her abandonment or sale.  According to American law, if repainting and raising a vessel amount to more then 50 per cent of the value, she may be abandoned as a constructive total loss.  If the vessel had been submerged on the ocean or on the coast, the Captain might perhaps claim from the underwriter for total loss, but this case was entirely different.  The fact appeared to be that the plaintiffs were so confident of the judgment of the Court that they allowed the loss to increase to a considerable extent, but for this they were not entitled to receive damages.

   He (Mr. Myburgh) considered that the amount claimed by Captain Parnet for clothes was exorbitant.  Unless every item, were fully proved the damages should be merely nominal.  The idea of his having charts, plans, &c., to the value of fcs. 2,100 was simply absurd, and the watch might be struck out of the list, as there was no actual proof of its submersion.  Of the gun and pistol, there had been no account given.  On the whole, he (Mr. Myburgh) felt perfectly safe in leaving his case to the opinion of the Court.

   MR. VAGUER witness for the plaintiffs, said: - I made this list (the one brought from the French Consulate) myself. It was made by order of the French Consul, of all the things saved from the General Meslin.  I went down to Woosung for the purpose on the 20th Nov.  This was long before the sale of the ship.  The information as to what belonged to the ship and what to the cargo was given me by the chief officer.  I do not know what belonged to the Captain.

   [B. HEUSTISS] said: - I am an engineer.  I purchased the wreck of the General Meslin for Tls. 1,600, for the purpose of raising her.  This was, I think, on the 5th December.  I had been to Woosung to examine her before I bought her.  I succeeded in raising her on the 16th or 17th.  I first dropped a sail over her side and then, having got a steamer alongside, attached a pipe to her condenser and let it into the forehold of the ship.  I should judge there were about three feet of water above the coal.  I commenced to pump her.  After the ship was cleared of the upper surface of the coal she came up.  At 8 ½ a.m. I commenced and at 11 o'clock she was afloat.  It cost me $250 for the tug Hercules.

   If the vessel had been saved I was to have paid $600 more, but when drawn off the bank she was caught by the tide and water-logged, through the fault of the captain of the tug.  We could not see the hole on the side of the ceiling.  It must have been below the coal.  We could see where the steamer had struck her on the outside.  I don't think at the time I raised her more than fifteen tons of coal had been taken out, because it was level all along.  The coal was about 3 feet above the lower deck beams.  The cargo was much heavier when I raised her than at the time of the collision, because a layer of sediment from the water of about 6 inches depth had settled on the coal and sunk into it. On even keel she settled about eighteen inches in the mud.  She was lying on even keel.  The ground there is hard.

   The vessel could have been raised with all her cargo more easily on the day after the collision than at the time I raised her.  None of the cargo need have been moved.  It would have cost me about Tls. 2,000 to have raised, docked and put her in repair.  This, with the price I paid for her, would have made it in all Tls. 3,000.  I mean by this making her all right in every respect. When I purchased her, everything was complete.  Had the owners of the General Meslin asked me to raise her for them, I would have done it for about Tls. 1,000.

   To Mr. EAMES: - I have had considerable experience in raising vessels.  I think I can do it as well as any one else.  I bought the barque on the 5th and raised her on the 16th.  In the meantime I made preparations but did nothing to the ship.  I prepared a sail for the hole by weighting and putting guys to it.  I don't know whether my man in charge wadded it.  Up to the 15th the vessel was in their hands, therefore I did nothing to it.  I succeeded in getting her up but got her down again in a worse place.  The tug was not put alongside in the way I wished.  I could see no hole from the inside.  I was down there from time to time.  I think a person named Butler bought the cargo; he had a schooner alongside and a gang of 25 or 30 men to work.  They began on the 6th and left on the 14th.  I have not had much experience in repairing ships.  This estimate was formed by Mr. Bird, a practical builder who assisted me in raising the ship.  We had an idea that we could repair the vessel without docking.  I have not raised any vessel in this port before; I have raised vessel in pieces.

   JOSHUA BIRD said: - I am a ship-carpenter.  I have been once since I was 21 years of age.  That was fourteen years ago.  I was employed by Mr. Heustiss to assist him in raising the General Meslin.  It took between two and three hours.  It was done by attaching a large pump to the condenser of the stream tug Hercules.  It was then carried on board the ship, into the fore peak and the engine set going.  A sail was weighted and sunk over the hole.  It took me about half an hour to prepare the sail and draw it fore and aft to keep it close.  The mistake made was in attempting to cross the tide, which took the sail off the side, whereas where she was lying the tide set on the sail.  We could see very little splinter from the inside.  I could have repaired her for Tls. 500, had she been beached.  I am of that opinion now.

   To Mr. EAMES: - I have been in the habit of contracting for jobs of this work.  I never had one of this kind.  I was formerly in Nicolson & Boyd's.  I don't think it probable that the beams were strained.  I examined her carefully on thje port side.  I noticed no strain there.  I should think there were one or two timbers broken.  Had I been working at her I should have had to take off a good deal of the timbers.  I would have put in new fastenings and timbers for the above-mentioned sum.  Everything was to be furnished for Tls. 500.

   TO THE COURT: - I think she might have required caulking.  This would not have been included in the Tls. 500.  The Tls. 500 were for putting to rights the hole.  There was nothing said about the metal.  I did not contract to do this.  The vessel to be sea-worthy should have been completely overhauled.  I would not have contracted to repair the hole before beaching, but as far as I then saw, I thought it could be done for Tls. 500.

January 10th.

   G. ROBERTSON said: - I have advertised my profession as fiver in the Shanghai papers for nearly two years.  I know that the General Meslin was sunk.  No application has been made to examine or raise her.  I undertake to raise anything, ships included.  The second day after she sunk, I sent my professional card by my brother to the French Consul, and received word from him in return that my services were not required.  I was referred to him by Lindsay & Co.  The morning after (the 6th) I went down of my own accord, to Woosung, to learn something about her.  I passed the ship with a French interpreter, but there was no one on board.  I sent my card in to the head godown man at Woosung, and he said that a steamer had sunk the General Meslin and would have to pay, and that no one was allowed to go on board.  I wanted to see what position she was in, in order to see what I'd charge to lift her.  The godown-keeper refused to allow me to go on board the ship.  I said I only wanted to see the hole.  He said no one was allowed to go on board.  I then examined her outside, feeling the hole with a boat-hook, and returned to Shanghai.  I did not then think much damage was done her.  There were two jibs set on her, I suppose to keep her in shore.  From what I saw, I think that, had the hole been battened up at low water, the ship would have risen as the tide rose without even being pumped up.  The water would have been below the coal at low water as she lay there.

   I came away on the same day, and went down again the day that Mr. Butler bought the cargo, in which I also had a share.  I engaged a schooner and put my apparatus on board.  She was then in a worse condition.  Everything was stripped off her, and she listed out as much as she had listed in before.  It would have taken a little longer to raise her then than on the previous occasion.  I do not consider that she was strained.  I found mud sediment on the coal, and there were three feet of mud on the cases under the cabin.  I dived down, and when I removed these cases found the mud underneath.  The cases were stored aft and the coal was stowed against them.  This mud was simply the sediment of the water.

   I have not got a list of the things I removed.  I know it was a great deal short of what was sold to me.  I got a list from Mr. Butler of the things that were sold me, and I did not find them all.  Liquor, medicine and clothing were sold to me.  There were 100 cases of old tom, and 30 cases old brandy, 6 quarter casks brandy and 17 coils of rope sold me.  I recovered the 100 cases of old tom, the cases of brandy, one of the quarter casks of brandy, and thirteen coils of rope.  I got one case of pickles out of six, and also got some sweetmeats.  I did not get any barrels of butter of which I believe there were fourteen.  I got one case of vermicelli.  I got no champagne.  I succeeded in getting out about thirty or forty tons of coal.  The cargo taken out of the ship did not materially lighten her.  I got out some heavy bales of goods.  There were some iron bedsteads on board.

   The things previously saved by the owners and what remained in the ship were sold together at Wainwright's.  I have no knowledge of repainting the ship.  On the first day I went down, it would have taken about two hours of the ebb and two hours of the flood to raise her with all her cargo in her.  The liquor in bottle was not damaged in any way.

   To Mr. EAMES: - I have been a diver for about two years.  I raised the General Ward, and was engaged at the Hellespont, but it was taken from me.  The General Ward was sunk at the French side, she was a small steamer.  I paid three hundred and fifty taels for my share of the cargo.  I did not bid at all for the ship.  I got everything out, but the coal and some bedsteads.  I examined forward and everywhere.  Tasking the cargo out won't pay my expenses.  I got about 30 or 40 tons of coal.  I took out the goods aft by diving.  At the lowest, the water was about two inches below the cabin floor.  Everything was under water.  I am satisfied that everything in the list was taken, but that I did not get it all.  I have not tried any other ship here except the General Ward and Hellespont.  I compared the list of what I got out with that got out by others, and found everything had been procured.  On the 8th day I gave up the job.  I found it did not pay.

   Re-examined by Mr. MYBURGH: - I have got my brother to assist me.  I never saw an easier job than the General Meslin.

   TO THE COURT: - I was engaged in saving things from the Illawarra. I saved two nine, two six, two four, and one thirty-two pounder guns.  I saved all the small part of the engines and some cases.

   Some discussion ensued as to whether the verification of the claim should be proceeded with, or whether the account of the sale of salvaged goods should be waited for.  Mr. Eames advocated the former course, remarking that those who had the misfortune to be mixed up in auction sales would know the difficulty and delay experienced in getting account sales.  He had been promised by Mr. Rondeau a list of articles saved; but had been disappointed.  It now appeared that the list lay at the office of the French Consul, who had thrown cold water on this case from the beginning.  Mr. Eames further remarked that he thought it perfectly just and reasonable that the case should go on to-morrow, and that, if the necessary documents were not then forthcoming, through the fault of the plaintiffs, there would be no injustice in giving the verdict against them on this account.  It was eventually decided that the case should come on again the next day at 12.30 p.m.

January 11th.

   The list from Wainwright & Co. not having been procured, Mr. Pinaud's case was brought on.  The claim was for $839.

   E. PARNET said: - My chief officer gave me a receipt for the goods mentioned in this list, which came on board.  The receipt was lost with the list.

    (A form stating the shipment of certain goods by Mr. Pinaud was handed in. It was addressed by Mr. Pinaud to the chief officer, and the Court considered its remaining in possession of Mr. Pinaud and the chief officer not having received it, was prima facie evidence that the goods had not been shipped although it was intended to do so.  It appeared that there had been no Custom House permit procured and the freight had not as yet been collected.  The manner of the shipment of the goods was then enquired into at some length as there appeared to have been some irregularity.)

Vaucher Frères are consignees for the barque.  I am not certain whether Mr. Pinaud returned to Shanghai after his goods went on board.

   J. PINAUD said: - I made out a list (in Court) of the goods I sent on board and the captain signed it.  It was made out in Shanghai and signed by the Captain on board the vessel.  All the goods were on board when he signed it.  This form (before alluded to) was filled up at the Custom House and I signed it.

   (Bills for the goods from different store-keepers in Shanghai were handed in and the witness was further questioned as to the goods stated to have been shipped.)

   TO THE COURT: - I did not save my things, because the vessel was under water, and I went up to Shanghai.  I know that some of the things have been saved.  I saved one trunk and my bedding and blankets at the time of collision.  The other trunk was in the hatch under the cabin-table and I had no time to get it out.  I left Shanghai on the 27th or 28th and remained alongside the barque for three or four days before I could ship the goods.

   Mr. EAMES then proposed to bring on the cases of Duburqouis and Lecuyer and handed in powers of attorney from them to certain persons here to act for them.

   Mr. MYBURGH objected that the powers of attorney were not authenticated and that the suits could not be proceeded with.  They had not been put under seal.  The authority should be expressed in so many words that the agents here were entitled to bring an action in a Court of Law for the plaintiffs.

   THE COURT were disposed to admit the letters as sufficient authority, under the circumstances, but would not do so in the case of a mercantile firm.  At the same time, every precaution would be taken to prevent the defendant being sued a second time.

   AUGUSTIN PIERRE FRANCOIS [RONDHAU], acting commissary in the French Navy: - I recognise this letter as having been handed to me by Mr. De Bourquois. I know his signature intimately.  When he went away by the Kienchung, he had intended to take his things, but he told me that he was unable to take them then, and he would send them by the General Meslin.  One of my men saw the things to Woosung. 

   (Mr. Eames here explained that this man had been relieved by another directly he arrived at Woosung, and that the latter man was away from Shanghai.  My. Myburgh said this amounted to an admission of inability to prove the taking of the effects on board.)

   I cannot say what was done with them.

   JAMES E. WAINWRIGHT: - The goods represented on this list (made out in his office) come from Woosung.  They are represented to me to have come from the General Meslin, they were received by my servants at Woosung, brought to Shanghai and sold by me.  They had all been wetted, and damaged.  The goods I sold for Mr. Butler and Mr. Robinson brought from Tls. 800 to Tls. 1,000.  The three lists in the possession of the Court represent all the goods sold except those sold on account of the latter parties.

   To Mr. MYBURGH: - the things in bottle were worth intrinsically as much as before immersion.  At the time of the sale, some of the tins were injured, some were good.  The things in casks were not intrinsically damaged.  The medicines and surgical instruments were much damaged.

   PAUL E. GALLE, a Surgeon in the French navy said: - I have known Dr. De Bourquois long.  He lived with me up to the time of leaving Shanghai.  I saw his effects packed up.  I bought some of his liquors at the sale, and recognize the cases.  I heard his coolies ordered to take some of the things to the Kienchung and some to the General Meslin.  I bought a number of his books afterwards at Wainwrights's for ten cents.  I swear the list (handed to me) is a correct one of the cost price of the books.  I looked over a published list of the prices about seven years ago.

   E. PARNET said: - I agreed with Mr. De Bourquois to take some things to Japan for him.  Besides cases of wine there were many other things.

   Mr. MYBURGH called C. ROBERTSON: - This is Messrs. Wainwright & Co.'s list.  Messrs. Wainwright & Co. have not furnished me with an account sale.  I don't know what the goods will bring.

   To Mr. EAMES: I believe all these goods were sold by auction.  I thought that the best way to dispose of them.

   Mr. Lecuyer's case was then commenced.

   P. MASSILON said: - I am an aide-commissaire in the French service.  I am familiar with Mr. Lecuyer's hand writing, and I know that this letter was written by him.  M. Lecuyer is also an aide-commissaire.  I have known him for about one year.

   Mr. MYBURGH did not propose to contest these two claims as they seemed to be characterized by singular good faith.  He only wished to have it proven that the goods went on board, and this seemed to have been the case.

   Mr. DESVASCHEZ case then came on.  Mr. Myburgh said he would allow the claim made by the plaintiff for $120.  Mr. Eames said that in this case as in the others, he would have to claim also compensation for detention.

   Mr. DESVASCHEZ said: - This is the receipt for the amount I paid for my board here.  I have had no employment and stayed here only on account of trhe collision.

   TO THE COURT: - The $2 ½ per day, is the usual price I pay.  I was here for some time before the accident.  I am a musician and followed my profession before the collision.  I had been twice assisted by the Amateurs in giving soirees and not liking to ask them again, I had to remain idle.

   MR. EAMES said he had not authority to appear for the other two claimants.

   MR. BERTILLON, acting as attorney for Mr. Lachaud, being called by the Court, said: - I have known Mr. Lachaud for a year and a half, I have seen a receipt from Captain Parnet for three trunks belonging to Mr. Lachaud.  Mr. Lachaud told me he lost three trunks and the bedding.  The bedding was not mentioned in the receipt.

   MR. DESVASCHEZ said that he still claimed $1,000.

   I know nothing of the things which were put on board.  I don't know what was in the trunks.  I was told clothing and linen.

   MR. CORTIEUX was absent on account of illness.

   Captain PARNET said: - Cortieux sent I think five trunks and two or three cases on board.  They were given in charge to me.  They came on board on the 28th or 29th.  Six trunks belonged to Cortieux and Lachaud.  I don't know how many belonged to Cortieux.  He took four trunks from the consulate.  He brought at least four trunks on board.  Cortieux took his trunks and Lachaud did not take his, being absent.  The two remaining trunks are at the French Consulate now, and seem in very good condition.  I put the trunks down in the small hatch forward of the fore-hatch.  Lachaud's things were put in the same place.  The passengers themselves took them up when the vessel was sinking.  I saw them at Woosung and they were not wet at all.  The trunks were under the deck of the forecastle.  The passengers lived down there.  The sailors lived in a house on deck.  I don't know why Mr. Lachaud did not take his trunks when they were in the godown at Woosung.

   Mr. MYBURGH, in summing up the case for the defendants, said that he would not prolong a case which had become very tedious to all parties, by making long observations.  There were three important points to be decided -

1st, - what amount of loss was sustained by the plaintiffs;

2nd, - how much was caused by the defendants; and

3rd, - how much was attributable to the negligence of the plaintiffs.

He considered that had, at the time of the collision, proper care been taken to save thr ship and cargo, the loss would not have been what it really was.  It was to be regretted that the case for the ship and the French Government were not before the court, because then it could fix approximately some proportion of loss for which the defendants were liable.  Had the General Meslin been beached, raised or kept afloat, the merchandise could have been saved.  As it was, a considerable portion of it, after a submersion of two or three weeks, was as valuable as ever.  As to the wearing apparel, for which one of the largest claims was made; the damage done it by fresh water would be immaterial.  If the subjects of H.I.M., the Emperor of France were under such constraint as they appeared to be, so much so that they had to obtain sanction for the sale of the vessel, the defendants should not suffer for the loss in consequence of such an unreasonable practice. 

   According to the doctrine of insurance, the captain must, if his vessel be sunk by collision, raise and put her in a state of repair, if the cost of doing so does not exceed the value of the vessel.  The witnesses for the plaintiff admitted that it was incumbent upon a Captain to spend two-thirds of the value, but in this case there was proof that nothing had been done.  Almost every thing might have been saved within twenty-four hours after the collision had proper exertions been made.  He (Mr. M.) would accordingly leave his case with thr greatest confidence in the hands of the Court.

   Mr. EAMES, in the course of a very long closing address, remarked that he would advert once more to the difficulty of procuring proof in a case of this nature.  In this case, the vessel having been sunk and the goods submerged, the Captain was not bound to go to any expense to save her.  The defendants' argument was that the defendants had been guilty of negligence.  It had not been proved that the vessel could have been raised for 500 or 600 taels, as his friend Mr. Myburgh had stated.  It was not reasonable to ask the plaintiffs to raise the vessel as, should any accident happen in doing so, they would not be able to recover from the defendants.  As to Mr. Bird's evidence.  He stated that the vessel could have been put in  sea-worthy condition for Tls. 500, but stated eventually that the wound caused by the collision alone was to have been repaired for that sum; his testimony, therefore amounted to nothing.  As to the amount of damages.  If the case should be considered one of total loss still the question remained, for how much were the plaintiffs entitled to claim.  In the first place, they claimed compensation for delay.  The plaintiffs merely asked for their actual expenses not for demurrrage. 

   (Mr. E.) quoted Chitty on Contracts to prove that the plaintiffs were entitled to recover damages up to the time of trial.)

He would remind the Court that after getting even everything that he had the assurance to ask for, the plaintiffs would still be great sufferers.

   The Court then adjourned, judgment being reserved sine die.

  •    

JUDGMENT was given in the several cases as follows:

E. PARNET.

   The Court pass over the first item in Captain Parnet's claim of $2,000 for damage and loss of interest, as untenable.  The second part of the claim, the Court reduces from 8,185 frcs. to 6, 225 frcs, being of opinion that the valuation placed by Captain Parnet on his wardrobe, library and charts is excessive, and it has appeared in evidence that the gold watch has been recovered.  The other items are passed.

   The third part of the claim is for stores valued by Captain Parnet at $924.  The Court accepts his statement of the quantities and value of these articles, and considers him entitled to recover for that portion as a total loss which was only partially occasioned by the defendants.  The value of the first is $157, of the latter $767.  The Court allows only half of the latter item, being of opinion that these stores might have been sooner saved, that if sooner saved the deterioration would have been slight, and that the portion eventually saved need not have been sold at so great a sacrifice.

   For his detention at Shanghai to obtain redress from the defendants, the Court allows Caotain Parnet as necessary expenses $150, being at the rate of $2 ½ a day for two months.  The Court therefore finds for Captain Parnet to the amount of $1,723.  Costs for plaintiffs.

J. PINAUD.

   The Court finds for the plaintiff to the amount of $1,427, which is thus made up.  Perishable stores, the loss of which the Court regards as total, $731; partial loss on other stores $296; value of contents of one trunk, estimated by Court at $250; expenses of detention at Shanghai, two months at $75 per month, $150.  Total $1,427.  Costs for plaintiff.

  1. DESVASCHEZ.

   The Court finds for the plaintiff to the amount of $270, being $120 for loss of effects and $150 for expenses of detention at Shanghai, costs for plaintiff.

  1. LECUYER.
  2.    The Court finds for the plaintiff to the full amount of this claim, $400 and cost.

    1. DUBOURQUOIS.

    The Court finds for the plaintiff to the full amount of this claim, $585, and costs.

  3. LACHAUD and J. CORTIEUX.

   The Court throws out both these claims, it having been proved by Captain Parnet that most of the effects of these plaintiffs, if not all, were actually saved, and that owing to their position in the ship, all of them might have been saved and probably were saved by the plaintiffs, who had sufficient time for the purpose.

 

Source: The North-China Herald, 11 February 1865

H.B.M. CONSULAR COURT.

February 6th, 1865.

E. PARNET, late master of the French ship General Meslin,

and

RONDEAU, Commissaire de division, French Navy,

versus

OWNERS of the steamer Promise.

The following is a copy of the judgment given in the above case.

In these two cases Captain Parnet seeks to recover from the owners of the Promise $27, 200 as the value of the ship General Meslin, and M. Rondeau $18, 497, as the value of stores belonging to the French Government which were laden on board the General Meslin when that vessel was run into by the steamer Primrose on the 4th November last.  By a previous decision, this Court held that the collision was attributable to the negligence of the defendants, and the question remaining to be determined is the amount of the damage which they thus occasioned.

It was proved by the plaintiffs in the earlier evidence in this case that the General Meslin at the rime of the collision occupied a berth so close into the bank that, as soon as she began to draw 14 feet she occasionally touched by the stern as she swung round.  About 25 minutes elapsed from the moment she was struck until she filled, during which time the crew of the General Meslin, assisted by a pilot and some men from the Primrose, endeavoured to put her on the bank, and it would appear that they partially succeeded in doing so, as the boatswain alleged that the ship forged in two breadths until she sank.  After she had filled, she lay with 12 feet alongside at low water, and at low tide her upper deck and the surface of the cargo were clear of water.  The weather was fine at the time of the accident and continued so until after the vessel had been abandoned.

Although these circumstances were favorable to the recovery of the vessel, the master of the General Meslin made no attempt to raise her.  Bering guided by the opinions of several surveyors who advised him that the cost of raising and repairs might amount to or even exceed there-fourths of her value; and acting, as he states, under the official direction of his Consul, he abandoned her fifteen days after the accident, and the vessel and cargo were then sold by order of the French Consul for the benefit of the concerned.  No offer was made by Captain Parnet to surrender the vessel to the defendants, nor did the latter object to the abandonment or suggest a different course. They elected to remain silent until their position as wring-doers was legally established, and they now contend that the injury sustained by the vessel was slight and could have been repaired at a comparatively trifling cost.

The Court have, therefore, to consider in the first place whether the abandonment was necessary, and if not at what cost the General Meslin might have been restored to the condition she was in at the time of the collision.  The Court and the assessors are quite agreed in their opinion that the ship, being in the position above described, could have been raised, and they also consider that the injury done by the collision was not too serious to admit of repair.  Forty-two days after the accident, when it may be assumed that her cargo had become heavier by saturation and a thick deposit of mud, she was pumped out and floated with appliances that from the first were within the reach of Captain Parnet; and although she again sunk as being towed up to Shanghai, a witness proved that this second disaster was the result of palpable mismanagement.  The Court, under these circumstances, cannot treat the case as one of total loss, and must hold the measure of damages to be the cost that would have been incurred in raising the ship, which the Court and assessors, upon a close calculation, estimate at 6, 268 dollars.  Proceeding with Captain Parnet's claim, the Court having come to the above conclusion as to the possibility of repairing the vessel, necessarily excludes the claim for freight, but allows thirty days demurrage at $41.24 per day for thirty days, as the time that would probably have been occupied with the repairs, and also $150 as the passage money of three passengers. 

The two succeeding items relative to the alleged cost of sending the crew home and particular losses, were withdrawn by the plaintiff at the hearing.  The money item is struck out by the Court, as it is clear from Captain Parnet's evidence that this might have been saved, and his claim for stores is reduced by $487, on the ground that some of the things might have been recovered or would not have been totally lost had the vessel been raised.  The total sum for which the Court enters judgment in favor of Captain Parnet is therefore $8, 386.95.

Had the ship been raised, the cargo could have been recovered at the same time, although in a condition more or less deteriorated according to the nature of the various articles.  Of the total lading of 420 tons, 370 tons consisted of coals, and fifty tons of provisions of a perishable character, - clothing, medical stores, &c., all which would be liable to extensive injury by contact with water; and although the intrinsic depreciation of the coals would be limited, the cost of removing such a sodden bulk, the expenses of dale and of re-shipment are serious charges in the account.  The defendants are bound to make good any deterioration that would have been sustained by submersion of the cargo during such time as might reasonably have been occupied in raising the vessel, but are not liable for any further loss entailed by her abandonment.  The Court apprehend that this deterioration could only have been satisfactorily ascertained by public sale of the damaged goods, and that the defendants are bound to make good the difference between the amount that would have been thus realised and the original value of the articles or the cost of replacing them.  The Court estimates the cost of Cardiff coal on board ship at eight taels per ton, but in all other respects M. Rondeau's valuations and statements of quantities have been accepted.  Taking in succession the five heads of his claim, and after a careful examination of the numerous items of which these are composed, the Court and assessors have come to the conclusion that the amount of damages under each head would be justly fixed as follows:

To the Coal  ...................$2, 855.50

To the Rope .................$ 429.25

To the Clothing ............$ 890.58

To the Provisions ....... $2, 131.50

  To the Medicines and

  Hospital Stores ............. $5, 574.77

 

  Total ..................... .$11, 885.60

And the Court accordingly enters judgment in M. Rondeau's favor to that amount.

The defendants will bear all costs of suit, with the exception of the deposit fee of one per cent, which will be divided between the parties, the defendants paying on the amount of the judgments and the plaintiffs on the difference between these and the original claims.

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