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Colonial Cases

The Williamette v. The Plymouth Rock, 1866

[shipping, collision]

The Williamette v. The Plymouth Rock

United States Consular Court, China
25 October 1866
Source: The North-China Herald, 3 November 1866

 

 

THE UNITED STATES CONSULAR COURT.

October 25th.

Before GEORGE F. SEWARD, Esq., Consul General, and

W. Blanchard, Esq., M. Blethen, Esq., M. Clark, Esq., Associates.

The Master and Owners of the Williamette v. the Plymouth Rock.

   Mr.  Rennie appeared for the libellants.

   Mr. Eames and Mr. Myburgh for the defendants.

   Mr. RENNIE said.  The Williamette, on the night of the 1st August, was anchored head up the stream and about a mile off Beaver Island and thirty miles below Chinkiang in the river Yangtze; she had dropped anchor at about ten o'clock at night; her watch was duly set; she had a white light at her mast head; and as soon as possible after she had let go her anchor the paddle-box lights were taken in.  About 2 a.m., the Williamette saw a large steamer about half a mile off drifting down the stream, head across it, at the rate of about five miles an hour.  When within hailing distance this steamer hailed the Williamette and ordered her helm to be starboarded.  This was done; but shortly after the Plymouth Rock, the steamer in questyion, struck the Williamette with great force on the starboard side some twenty feet forward of the paddle-box.   The Caotain of the Williamette before the collision hailed the Plymiouth Rock to drop astern; had she done this, the collision would have been avoided.  There was ample room for the Plymouth Rock to have passed on either port or starboard side, and the collision was owing solely to the culpable neglect of her watch.

   With regard to the damages - it will take Tls. 9,000 to put the Williamette in the state of repair in which she was before the collision; moreover the owners have sustained losses in consequence of their vessel lying idle, and from a quantity of coal having been thrown overboard to lighten the ship; finally, by the collision, the lives and goods of hundreds of Chinese soldiers have been sacrificed, and according to custom here, the owners of trhe Williamette have to make a pecuniary compensation to their families.  The learned Counsel then called -

   ALEXANDER MACLEOD.  I am master of the Williamette.  She was anchored a mile and a half above Beaver Island on the night of trhe 1st August.  I had been at anchor since a quarter to eleven of the night before.  My saddle-box lights had been taken in directly I let go anchor, by the two quartermasters Soirito and Corpez.  I was called shortly after two o'clock in the morning by Corpez, and told that a steamer was drifting down towards us.  I went on deck and saw her a point and a-half on the port bow.  I saw her port light and her mast-head light.  I could not see her starboard light.  I was hailed to starboard my helm.  I did so.  The helm of the Plymouth Rock must have been starboarded.  When I first saw the Plymiouth Rock, her wheels were stopped.  I saw the walking beam working shortly afterwards.  I do not know whether ahead or astern.  The Plymouth Rock was on the starboard side heading for the port side when I first saw her.  The Williamette was not leaky before the collision.  I hailed the Plymouth Rock to drop astern.  The channel was three quarters of a mile wide.

   The first crash carried away the starboard side of the upper deck, which was full of men asleep.  My ship's engines are damaged.  The ship dragged three quarters of a mile after the collision.  The Plymouth Rock backed off.  I think I saw heads of Chinamen in the water.  I heard screams. The tide was running at the rate of five or six miles an hour.  There was room for the Plymouth Rock to pass on either side of us.  She would have passed clear had she kept the course she was on when I first saw her.

   To Mr. EAMES. - The Plymouth Rock was drifting down when I first saw her.  There was no danger of a collision as she then headed.  She was not going ahead when I first saw her.  She turned her head before I could rouse the Chinamen.  There was no time for them to escape after the collision.  There was no attempt made to save the wreck carried away from the ship.  The Chinese on board were soldiers under the charge of a military mandarin.  Their lights are put out at eight o'clock.  I do not allow them after.  In some cases they may light them again.  The discipline is not very strict.  There were several stacks of arms on the upper deck.  There were no lights on deck at the time of the collision.  The plan of the vessel and the scene of the accident put in is correct.  I went on board the Plymouth Rock in a boat after she had backed away.  I did not return in that boat.  It had drifted away, or, somehow, got loose.  I stepped on board the Williamette from the Plymiouth Rock.  Coals were being thrown overboard when I returned to the ship.  In such a case as this, twenty-four tons weight would make a difference to the ship.  I did not try to list the ship.  I tried to raise her.  When I first saw the Plymouth Rock she was on my port-bow.

   Mr. Eames here remarked that in the plan the Plymouth Rock was marked on the starboard bow.  The explanation, in evidence of course, of trhe Captain to this remark, did not appear to us quite satisfactory.

   The Williamette made three feet of water the first day, afterwards not so much.  I do not know whether her timber was sound or not.  The part carried away was not rotten.  There is indifferent timber in her.  I used to pump her fortnightly.  I heard of the loss of sycee and dollars; at Shanghai first.  They were in the mandarin's cabin I suppose.  When I returned there were three feet of water in the after part.

   To Mr. RENNIE. - The soldiers are under controul of the mandarin.  I have the side lights on board now.  They are not damaged.  They must have been so, if out.

   TO COURT. - The Plymouth Rock being fast to the Williamette, she had to use her engines to back off.  I did not notice our head after we anchored. Her engines were at work.  She was trying to get outside of the Williamette.  I first saw the port light, and afterwards she swung round so that I saw her starboard light.

   JOHN PETERSSEN. - I am mate of the Williamette, I was on board at the time of the collision.  I was not on deck.  At one o'clock I saw the Chinamen sleeping about the deck.  (In other points this witness corroborated the Captain's evidence.)

   To Mr. EAMES. - I found three feet of water in the hold measuring from the engine room.  There was water forward also.  In fifteen minutes after the collision, there was three feet of water in the Williamette.

   LEON DE LA CRUZ. - I am a quarter-master on the Williamette.  I was on board her on the night of 31st July last.  She came to anchor at 10.30.  I took in the light.  Always did so.

   To Mr. EAMES. - We had two side lights on board.

   CORPEZ. - I am a quarter-master in the Williamette.  (It was found impossible to continue the examination of this witness from want of interpreters.)

   CRUZ re-called. - I had a son who I suppose was lost in consequence of the collision.  He was none years old and received a dollar a month.

   ROBERT CHESTERTON. - I was third mate of the Plymouth Rock at the time of the collision. (As to the time of the collision this witness corroborated Captain Macleod's evidence.)  When the captain came on deck he asked what that (Williamette) was.  He asked [what] the devil she was doing there.  The Plymouth Rock was first going to pass inside.  I can't say whether she would have got inside had she held on her first course.

   To Mr. MYBURGH. - I heard no reply when the Captain asked what that was or what they were doing with the side lights out.  When we closed on the Williamette there was a light on the forward part of the ship.  I was not discharged from the Plymouth Rock.  I applied for my discharge.

   JOHN WELLS. - I am a quarter-master on board the Plymouth Rock.  I saw two or three lights on the Williamette.  One was a red light.  This witness gave his evidence in such an uncertain way that the Court decided to reject it.

   Mr. FALLS. - I surveyed the Williamette with Capt. Roberts.  There is no vessel like her.  To her owners she might be worth Tls. 100,000.  \She is actually not worth an eighth of that sum.  They use her to carry troops for which she is well suited.

   To Mr. MYBURGH. P-I am a surveyor in the employ of the Chinese Government.  No one here would buy the Williamette.  She is of use only to convey troops.  I am superintendent of the arsenal.

   LEE-SING-MUY. - I remember the collision.  I was in the after part of the middle deck.  I had charge of exactly four hundred men.  All had arms and clothing.  I did not see men in the water.  I heard a scream from the water.  When a great ship ran into another great ship and carried away a biog piece of it, I was so scared as not to know what I was about.  I got into a sampan.  Others did.  This list of the soldiers was made on board.  I suppose it is right.  It can't be false.  I was not in charge of the soldiers.  They get from Tls. 4.50 to Tls. 6 a month.  The government makes a compensation to the families of the soldiers that are killed.

   To Mr. MYBURGH. - This is an obligation.  It is Tls. [50].  Anything beyond is a free gift.  (There was some discussion at this point here between the learned Counsel.  The defence seemed to be of opinion that there had been no Chinamen actually drowned.  Mr. Rennie tendered a document from the Futai to the Taotai referring to some enquiries made about these Chinese.  Mr. Eames and Mr. Myburgh insisted that the document before the Court was not in the form of evidence.  This point will be argued to-morrow, in the meantime the Court would get the document translated.)

   The Court now adjourned.

October 26th.

 

   Mr. RENNIE stated that he begged to withdraw all claims excepting for the sip, demurrage and coals.

   Mr. MYBURGH. - The document spoken of yesterday related entirely to loss of life, and therefore will not be put in.

   Mr. RENNIE. - It will not.

   Capt. MACLEOD re-called. - I receive $150 monthly, the mate $ [50]], the quarter-masters, sailors and others are engaged by the Chinese.  We are found rations.

   To Mr. EAMES. - The crew are on board, and have been, since we got to Shanghai.

   LOK-AMAU. - I am head fireman of the Williamette.  I am not in charge of the engines.  There was an engineer on board.  I did not measure the coals thrown overboard.  There might have been ten or twelve tons thrown overboard.  They were thrown overboard on the port side.  Ten men were doing this.  I suppose a hundred tons or so were thrown overboard, but I don't know.

   To Mr. MYBURGH. - I took upon myself to have the coals thrown overboard.  The lumps were thrown overboard by the men with their hands, the rest with shovels.  The coal was under cover on the deck.

   GULIELMO CORTEZ examined by an interpreter.  I was quarter-master on board the Williamette at the time of the collision and keeping watch.  When I saw the Plymouth Rock coming down on us, I called the Captain.  She was about a mile off when I first saw her.  The Williamette had at this time her white masthead light only out.

   To Mr. EAMES. - When the collision took place the Captain called out to get clear of the Plymouth Rock.  It took half an hour to do this, I think.  The side of the Williamette that was crushed fell into the water before the Plymouth Rock got clear.  On board the Williamette there were no side lights out during the night.  The soldiers had no lights on deck.

   To Mr. RENNIE. - It was my duty to look after the paddle-box lights while on watch.  (The examination of this witness took up so much time that it was determined to abandon it.)  A Chinese witness whose name we could not catch was now sworn and stated that the quarter-masters got $25 monthly each.

   This closed the case for the libellants.

 

   Mr. EAMES, for the defence, said. - The first count raised against us in the libel is practically, the value of the Williamette.  Now we shall be able to shew you that her worth has been greatly over-estimated.  We shall put into the box a competent and disinterested shipwright, who will bind himself for a comparatively small sum to put the steamer into working order and make good all the damages resulting from the collision.  Secondly, we meet the claim for wages during the time the vessel has not been employed, by the fact of no steps having been taken towards repairing her.  The owners of the Williamette might have refitted her and made the cost of so doing dependent on the result of this action.  They did not, however, see fit to do so. Even about the brining of this action there has been delay.  As for the coals, we shall prove that none were thrown overboard, and we assert the whole claim, in short, to be unfounded.

   Look at the evidence of some of the witnesses.  Captain Macleod says that he saw the Plymiouth Rock drifting towards his port side with her engines stopped, and that shortly afterwards they were in motion, but which way he cannot tell.  Why should the Plymouth Rock have stropped her engines if the Williamette was managed as she ought to have been?  Robert Chesterton, who applied for his discharge from the Plymouth Roc k, deposes to the Captain of his ship having asked what the Williamette was doing with her side lights out.  Could trhe captain have put this question unless he had actually seen these lights?  It is impossible he could.  The Captain of the Williamette says Spirito and Corpez took the side lights in.  Cruz says he took them in with his own hands.  One of these witnesses, at least must be in error.  Is it too much to think that both are mistaken? Wells declares trhe red light disappeared from the side of the Williamette when the Plymouth Rock closed upon her.  [The Court decided to re-examine Wells on this point.]

   The authorities lay down that a libellant must not only be free from blame but must show care on his own part and negligence on the part of the respondents.  In other words, the Williamette should have had her side lights in and have been anchored in a proper position.  Now we shall prove that she was anchored right in the fair way, and that besides the masthead light, there were other lights about her.  The learned Counsel the called,

   CHARLES SIMMONS. - I am Captain of the Plymouth Rock and was so at the time of the collision.  At two o'clock in the morning of the 1st August I was below.  I heard the bell ring to slow and stop, and at once went on deck.  I saw s steamer ahead about a mile and a half off.  I saw three lights on board the steamer - two side lights and a head light, and smoke coming out of her funnel.  I was then heading right forward.  I asked the pilot what was the matter.  He could not tell which way the steamer was going or what she was doing.  He h\ad stopped the engines.  I told him to port the helm and go ahead.  We went ahead two or three turns with the helm aport.  The port light of the Williamette had disappeared.  This led me to suppose that she had starboarded her helm.  I stopped again.  I, immediately after, saw her port light again.  I headed again with helm aport for a few turns.  The port light disappeared again.  I saw the starboard light and knew it was impossible to clear the vessel with helm aport, so I starboarded the helm hard and ordered the pilot to go astern.  The engines were reversed before we struck, but the tide was carrying us on.  We had lost our weigh about two minutes before we struck.

   At the time of the collision I saw the starboard light.  I hailed the Captain of the Williamette when close, and told him to hard a-starboard his helm.  He said, "Aye, aye, we are at anchor."  I asked him how it was then his side lights were out.  He did not answer trhe question.  The tide was running at about six miles an hour.  The Williamette was lying in six fathoms of water on the port side of the mid channel coming up the stream.  She was just about where we generally go. We find our way by soundings.  If we keep in mid channel we get into deep water just after this part (where the Williamette was lying).

   To Mr. RENNIE. - The pilot drew this chart.  It represents the relative position of the shop when the pilot first sighted the Williamette.  I had a proper watch set.  A quarter-master at the helm, a quarter-master in the chains heaving the lead and the third mate forward.  When I saw the Williamette with her masthead light, he side lights and smoke coming out of her funnel, I supposed the was underweigh.  I was alseep when the Williamette was first sighted.  I was awoke by the bell and came on deck at once.  I was wide awake when I got on deck.  I went below about eleven.  I was on deck about four minutes before the collision took place.

   ASA FLAGG. - I have been pilot of the Plymouth Rock since June last.  I was on board of her at the time of the collision.  I first saw the Williamette when she was three or four miles off, and about two points on our starboard bow.  This chart represents the relative positions of the vessels when I first stopped.

   [A few questions were now put that could not be followed without a copy of the chart.]

   The Williamette appeared to be swinging round when I first saw her.  I thought so because I saw first a red light and then a green light.  I saw her masthead light also.  A minute or two after I stopped the ship, then Captain came on deck.  He asked what was the matter.  I said there was a steamer ahead putting her helm first one way and then another.  He told me to turn our vessels head.  I did so.  After three or four revolutions he told me to stop her, because the Williamette seemed to be starboarding her helm.  He then ordered me to go ahead.  We saw all the Willamette's lights, and he ordered me to stop again.  Then the red light disappeared. The Captain told me to starboard the helm.  I kept it so until the collision.  Our engines were stropped at this time.  At the time of the collision our engines were reversed.  The Captain hailed the Williamette two or three times before getting any answer.  When he asked why their side lights were out, they said they were at anchor.  I have been on the river four years.  I supposed the Williamette from her appearance was coming up the river.

   [Some questions were now put that render a chart of the scene of the collision necessary for their proper understanding.  Their object was to show to the Court that what was done on board the Plymouth Rock was, under the circumstances, correct.]

   I never saw a vessel anchored where the Williamette lay.  It was right in the fair way.

   To Mr. RENNIE. - When I first saw the Williamette three or four miles off, I saw her masthead light and her red light.  I saw all her lights when the Captain came on deck.  It was a bright night.  A man might see then red light of a steamer six miles off.  Just before we struck, I saw the masthead light and the green light.  I should say the green light was on at the time of the collision.  It might have been taken in though, then.  When I remember seeing the green light last we were about five hundred feet off.  Our whistle was blown when we were about three hundred yards off.  I did not see any lights moving about when the whistle was blown or at any other time, excepting the masthead light ands the side lights. We were not closer to the bank than is usual.  They could have seen our starboard light at this time.  They would have seen our port light first.  A quartermaster sounded and found six fathoms.  The helm was steady when the Captain first ordered it to be starboarded.

   To the Court. -  I saw smoke coming from the funnel of the Williamette.  I did not hear the Willamette's whistle.  I do not know whether she had one or not.  When the Plymouth Rock was stopped the second time her headway was very slight.  Vessels at anchor would blow the whistle if another vessel was coming down upon them.

   JAMES PROVOST. - I am first assistant engineer on board the Plymouth Rock, and was there on the night of 31st July and the morning of the 1st August.  I was on duty from midnight till four in the morning.  I remember the collision.  I saw what I took from the number of its lights to be a steamer.  There were more than two lights.  I could not distinguish any coloured lights as far as I recollect.  As soon as I saw the lights I returned to the engine room to be in readiness for any event.  I would not like to say how far off we were from the Williamette.  I was on deck only a few seconds.  I remember being ordered to slow and stop the engines after going into the engine room.  I then went ahead slowly.  I then s topped again.  I then went ahead again.  I then stopped again.  I then tacked.  These orders were given to me by the bells.  I was in the engine room at the time of the collision.  I do not recollect hearing the Plymouth Rock's whistle.  The whistle might be blown and I not hear it.  I am certain that when I went on deck I saw more than one light.  I cannot swear to the colour of the lights.

   To Mr. RENNIE. - I was on deck a moment or two.  I did not walk a dozen feet on the deck.  I walked towards the star-board side.  I saw no smoke coming from the Williamette.  I did not see her funnels.  There is one engineer above me.  He was in the engine room at the time of the collision.  He went on deck two or three times.

   TO THE COURT. - The engine was backing when the Plymouth Rock struck the Williamette.  I saw the Willamette's lights before I was ordered to slow.

   The Court now adjoiurned.

October 27th.

   WILLIAM DUNCAN. - I am first engineer on board the Plymouth Rock.  I was in bed when the first bell rang to slow.  It woke me up.  I rose and went into the engine room.  When the engine was in motion I had to work her.  When she stopped, I went on to the gang-way to see what was going on ahead.  When I first went on deck I saw what I supposed to be a steamer.  I supposed so because I saw smoke coming out of her funnel, and because I saw her lights and a mast.  One of these lights was red.  I then went into the engine room.  The first bell then rang to slow.  Nothing of importance, to my knowledge, took place between the time of my seeing the Williamette and the time of the collision.  At the time of the collision I was working the engine back.  The [?????] was very slight.  I went on board the Williamette about two hours and a half after the collision, and I went into her engine room to see what damage we had done.  I saw no water in the engine room.

   To Mr. RENNIE. - I do not know whether the coals had been thrown overboard before I went on board the Williamette or not.  She was three or four lengths off when I first saw her.  I saw a good many lights on board her, one was red.  I did not hear a whistle blow.  I cannot tell how a night is when I have just come out of the engine room.

   TO THE COURT. - The Williamette was listed to port a few inches.  Had there been three feet of water in her I must have seen it.  Her guard on the starboard side was three feet out of the water.  It was not possible for the Williamette to have had three feet of water in her.  She would have sunk if she had.  I did not see her being pumped.  I do not know whether she was pumped or not.  I cannot see why she should take in more water in the first two hours and a half after the accident than in the next two hours and a half after.  I consider she might have got to Shanghai after the accident with one wheel and one engine.

   S. FARNHAM. - I was asked by Messrs. Russell & Co. to see the amount of damage done to the Williamette.  I went at once and examined the damage as far as it was visible.  As a shipwright, I would repair the machinery and hull and put the vessel in working order for Tls. 3,500.

   To Mr. RENNIE. - I do not know the whole extent of the damages. (A report of the damages was now read, the witness remarking every now and then that some of the injuries mentioned, were in existence prior to the collision.)  Her deck was like a Virginia fence.  I would not set that right for the Tls. 3,500.  It was so before the collision.  I would make her river-worthy; as good as she was before.  She might then d rift on a few more years. She would then do to carry Chinese troops, as she has been doing.  I have known her for some years.  There is nothing true about her.  I would put her in the condition she was before the accident for Tls. 3,500.  I did not say the estimate was entirely mine.  Part of that, that belonging to the machinery, was an engineer's.  I am the responsible man for the estimate.

   TO THE COURT. - I would not like to put a value on her.  I would not have her as a gift if I had to keep her.  She may drift on as before for a few years after Tls. 3,500 have been spent on her.  Her hull is iron.  She has always been leaky, so her commanding officer told me.  It might take Tls. 1000 more to caulk her iron seams and all that in dock.  When iron has been displaced it must be hammered back.

   BLANCPIED. - I am a quarter master on board the Plymouth Rock.  I was at the wheel at about midnight before the collision took place.  I saw something ahead, with three lights on it and some smoke proceeding from it.  I supposed it to be a steamer from the appearance of the lights.  The pilot first saw the lights.  The steamer was about three points on our starboard bow.  I did not see three lights right ahead until we were only about a mile off.  I was then ordered to port the helm.  The Plymouth Rock had stopped before I got the order to port.  She went ahead again after the order.  I cannot exactly recollect whether we stopped again or not.  There was one light on each side of the steamer we saw, and one at the mast head, one side light was red.  I cannot swear to the colour of the other.  A green light shews brightly on a moonlight night.  My duty was to attend to the helm.  It was only by way of a passing glimpse I saw the light.  I recollect the Captain saying "what the hell is he doing with his side lights out."  This was after we stopped.  I do not remember hearing any whistle blown.

   To Mr. RENNIE. - I saw no other lights but these three I have spoken of.  I did not hear any orders given to stop our ship.  The Plymouth Rock had steering way on until we got close to the Williamette.  I can't remember whether I was ordered to port the helm a second time.  I was ordered to starboard the helm when we got close to the Willamette.  This brought our head to port.  I could only distinguish the red light.  I can't say where the other light was exactly.

   Mr. EAMES . - I shall add but little to what I have previously said.  About the actual damage done to the steamer I need not, I think, say anything after the evidence the Court has heard on trhe state of the vessel.  The Europeans in whose charge the coal was have not been produced, but a Chinaman states he took upon himself the responsibility of ordering it to be thrown overboard.  As to the quantity of coal he knows nothing.  It might have been ten tons that were thrown overboard, it might have been a hundred, he says.  It might perhaps have been none at all, I would suggest.  As for the leakage of the ship, I leave it in the hands of the Court who are not inexperienced in nautical matters to say whether the Williamette could possibly have remained afloat, if she had taken in three feet of water in fifteen minutes, as stated by the libellants' witnesses.  All our witnesses saw a red light - and the green light, as would be the case on a moonlight night, was described by them as shining brightly, but as showing no particular colour.  In conclusion, I would again remind the Court that the libellants must not only shew negligence, which they have failed to do on the part of the respondents; but they must also shew a thing they have equally failed in doing, that every precaution was taken by themselves.

   Mr. RENNIE. - There are two questions for the Court to consider - whether the side lights of the Williamette were out and whether the collision was caused by the negligence of the precaution on the part of the respondents.  As is usual in collisions, the testimony is somewhat at variance, and this is particularly so with regard to the evidence about the side lights.  While it is distinctly stated by the respondents that these lights were out just before the collision, we have on the other hand the best testimony to shew that they had been taken in.  It is true there is some little discrepancy about whom they were taken in by, but you will have no difficulty in allowing that Cruz should know more about them than any one else, since he took then in with his own hands.  As to the precaution and judgment exercised on board the Plymouth Rock, I leave the Court to say what sort of care or judgment it is that, within five minutes, stops a vessel three times, ports the helm, starboards it, ports it and starboards it again, besides reversing the engines.  Lastly, as to the coals, the chief engineer of the Plymouth Rock says there was no necessity for them to be thrown overboard.  He did not go on board the Williamette till two hours and a half after the collision.  Doubtless there was no need to lighten the ship then.  This had been already done.  I leave the case with the most perfect confidence in your hands.

   The wirness WELLS recalled. - I saw two or three bright lights, one higher than the others which seemed to be about the deck.  I can't say exactly where.  I did not see them when we got close to the Willamette.  I did not see any one remove them.  I saw the lights just before the collision, about a ship's length off.  I was heaving the lead and found just over four fathoms.  When I first cast the lead, I heard the Captain sing out to blow the whistle.  I don't know whether it was blown or not.  I heard the bell once.  We might have been a mile or so off then.

   Judgment deferred.   [NOT FOUND.]

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