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Colonial Cases

The Mistletoe, 1870

[shipping, bottomry bond]

The Mistletoe

Supreme Court of China and Japan
22 January 1870
Source: The North-China Herald, 25 January 1870

 

LAW REPORTS

H.M.'s SUPREME COURT.

January 22nd.

In Admiralty.

Before Sir EDMUND HORNBY.

Claim of Tls. 2925 on Bottomry Bond, dated Shanghai, 24th Aug. 1869,

On British Barque "Mistletoe."

No appearance was put in.

Mr. EAMES for Bond-holders opened the case by informing His Lordship how it had occurred that his clients had a bond on the Vessel. That she had put in to Shanghai some two years since, after encountering a severe typhoon in which she was considerably damaged.  That Russell & Co., acting on behalf of the Captain and Owners, has advertised Loan wanted on Bottomry, but that no tenders had been submitted and that in consequence his clients had supplied the necessary funds for the repairs of the Vessel which Capt. Lewes of the Water Witch, after holding a survey, had urged as requisite. 

That the bond was drawn up in due form and signed by the Captain before witnesses, after which the amount required was advanced, Messrs. Farnham & Co., undertaking to do the repairs.  Mr. Eames would call on Mr. Hitch, who probably would throw light on the matter, he having acted in this transaction, at the time, for his employers.

F. D. HITCH. - I am employed by Messrs. Russell & Co., of Shanghai.  This is the bond on thje ship and this is my signature witnessing the Captain's signature which I see is here affixed.  I had charge of this affair.  The vessel came here in distress and could not proceed to sea without repairs.  The firm of Russell & Co., acted for the Captain in trying to get money on bottomry.  Same was advertised in the "North China Daily News," but no tenders came in answer.  We had the ship surveyed by Capt. Lewes who pronounced her as requiring a good deal of repair.  We could not get tenders on bottomry, so we took the matter in our own hands and advanced the money.  The Bond was made out before the money was paid.  We wrote to the owner telling him what steps had been taken.  Capt. Slabbe has offered $6,000 for the vessel.  Mr. Cox answered our letter to him, but did not seem to be satisfied.  I think he answered the latter in the latter part of 1868.  The ship has been in our hands ever since that time.  We had no other offer than the $6,000 for the vessel.  I think this is her fair value.  Her tonnage is correct as per "North China Daily News" shipping list, 268 tons, she is barque rigged and is of class 1857.

Mr. EAMES. - The bond does not stipulate a higher amount; it is for a less amount, so that we shall claim the difference.

His Lordship was of opinion that this could not be done, and all the Court could do, would be, in case it was proved, to give an order for the amount covering the bond only.

Witness continued. - Messrs. Russell & Co. would prefer getting into funds at once.  If the vessel was sold now, she would probably fetch a higher price that at a future time.

Capt. LEWES. - I surveyed the Mistletoe in July 1868.  She was very badly strained, and I recommended those who employed me to send her to dock.  I surveyed her again in the dock, and found her worse than I had anticipated.  She was generally strained.  The total cost of the repairs amounted to Tls. 2,200.  The offer of $6,000 alleged to be made for her, is all that I think she is worth.  She would find a better price now, than later in the season.  She would not fetch this price at Shanghai.

G. C. ROBERTSON. - I am master of the "Mistletoe," she is a British barque.  I took command of her on the 10th July, 1868.  This is the Bond and this is my signature.  The ship was in distress from the effects of a typhoon she encountered.  The rudder was carried away, the bulwarks were completely destroyed and she was heavily strained. We lost all of the spars from the deck.  I had no credit in Shanghai.  I am not aware of any tenders were presented to Russell & Co.  I did not tender myself.  The tonnage of the vessel is correct and as before stated (268 tons).  She was repaired by Messrs. Farnham, & Co.  The vessel is now under arrest.  Since the first repairs she has had new backstays fore and aft, and two new topsail yards.  The amount offered for the ship I consider to be her full value.  I would give no more for her.

S.  C. FARNHAM. - We repaired "Mistletoe" in June 1868.  The repairs were general, such as copper, rudder, bulwarks, jib-boom and a lot of gear washed overboard during the typhoon.  As far as I recollect I made out an estimate for $3,266.  I remember this document; it is my agreement to repair the vessel.  The work cost Russell & Co. more.  I think $6000 for the "Mistletoe" a very good price.  I don't think she would sell for that price here.

Judgment.  The Court pronounced for the Bond.  The question of private sale to be referred to the Registrar on the evidence offered, and if he thought the price offered advantageous, it might be accepted without incurring the expense and risk of a sale by auction - costs to be paid out of proceeds of vessel.

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