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Colonial Cases

Chung Chin Lien v. Jardine, Matheson and Co., 1871


Chung Chin Lien v. Jardine, Matheson and Co.

The Lismore

Supreme Court of China and Japan
9 February 1871
Source: The North-China Herald, 15 February 1871




Shanghai, February 9th, 1871.

Before C. W. GOODWIN, Esq., Acting Chief Judge.

CHUNG-CHIN-LIEN and others, trading at Shanghai & Foochow in the style of Foo-kee,


W. KESWICK and others, trading as Jardine, Matheson & Co., agents for R. Jardine, owner of the steamer Lismore.

Claim of Tls. 1,320, value of 100 bundles of paper and 50 joss-paper in conveyance from Foochow to Shanghai on board the Lismore, lost through defendants' negligence and mis-management.

   Mr. HARWOOD for plaintiffs.

   Mr. RENNIE for defendants.

   Mr. HARWOOD proceeded to open the case for the plaintiffs, but

   Mr. RENNIE said the real defendants here, being the agents of the owner of the "Lismore," chose to take up the defence of this action, and abide by the consequences; and he asked that his Lordship should therefore make a note that they made themselves personally liable, and did not bind Mr. Robert Jardine by their action.

   His Lordship having done so,

   Mr. Rennie said he must also mention that as there was a charge of negligence in the petition, it had been agreed, between himself and the Counsel for the plaintiffs, that the evidence and verdict in the Enquiry held into the circumstances of the loss of the "Lismore" should be handed in as bearing on that question.

   Mr. HARWOOD said the action was brought by several Chinese subjects, trading together, at Shanghai and Foochow, under the style of Fookee, for the recovery of Tls. 1,320 damages for the non-delivery of certain goods, viz., 100 packages of paper and 50 packages joss-paper. 

   About 24th October last, the plaintiffs shipped on board the "Lismore," at Foochow, these goods for carriage to Shanghai.  Freight was paid and a receipt in the ordinary way given, to this effect: - "Received on board the "Lismore," the following goods, marked and numbered as below, &c."  On the 2nd November the "Lismore" ran into a sunken junk, when entering the channel of the Yangtze, and steamer and cargo were lost.  For more than a year the "Lismore" had plied between Foochow and Shanghai, carrying goods for all who brought them, and her owners were therefore common carriers.  As to the obligations and position of common carriers he referred the Court to various autjorities - to 148 Chitty on the law relating to that class of of public servants; to page 16 section 21 of Redfield, an American work founded upon English authorities; to page 174 of Parson's Maritime Law, and a note at foot of that page to show that the owner was liable for goods as a common carrier whether shipped by bill of lading or not; to a note on page 75 of the same authority that substantiated the same authority that steamboats which ply regularly from place to place are thus liable as common carriers. By the Common Law of England a carrier was liable for all loss and damage occurring to goads entrusted to him, except what was caused by the act of God or the Queen's enemies, in fact was insurer to that extent.  The act of God, he might observe, was a phrase narrowly restricted by the decision of the Courts, and he thought the question here did not fall under that condition. Damage from a natural accident might be called an act of God, but where negligence by any party appeared in connection with the circumstances attending the loss, it could not be considered an act of God.

   On this point he referred to Chitty on the law affecting Carriers, page 38, and to the case quoted by that authority, of the Trent Navigation Company v.  Wood, 3 Espinatte 127, and to the remarks of the judges in that cause.  Another case very much in point was recorded at the bottom of page 21 of Redfield, which with other cases he would cite showed that the carrier might limit his liability by giving notice - the usual way being by notice on the contract, bills of lading, advertisements, printed notices or placards, which, however, must have been brought under the knowledge of the consignor, so as to be accepted by him.  He quoted, to show how much was expected of the carrier in order to limit his obligation, the cases of Kerr v. Willar 2 Starkie page 55, and at 279 Davis v. Willar, Rowley v. Horn in 3 Bingham page 2, Clanlin v. Hunt 3 Campbell 46, Rook v.  Pickwick 4 Bingham page 218.

   In the case before the Court no bill of lading was given, nor did they show that any notice was made limiting the responsibility of the carriers who, by the common law of the real were, as shown by the numerous authorities he had cited, held to be insurers of the goods entrusted to them. If he could prove in evidence that they had not done her as he asserted, it was not necessary for him, in the absence of a special contract, to prove negligence.  The law presumed it; but he thought he should be able to show that even if a special contract were made in this case, the negligence of the defendants was such as to still render them responsible for the loss.  Their excuse for running upon the junk would no doubt be the displacement of the light which usually marked it, but had the defendants taken a pilot not only would the position of the light have guided the latter, but his local knowledge might have enabled him to detect the alteration in its situation.  Negligence to engage a pilot might therefore be taken as the proximate cause of the loss.  To support his case he would now further refer his Lordship to the 22nd page of Redfield's Common Carrier, 28th section, the opinion therein stated being founded on the case of Davidson v.  Garret 6 Bingham, and to page 487 of Parsons on Maritime Law, 1st volume, where it would be found that the omission of the engagement of a pilot rendered the owner liable in damages, should any occur, to the shipper; which was borne out by the case of the "William" 6 Robinson's Admiralty Reports, the judgment given by Sir William Scott and the opinion of the Trinity masters in the same case.  Another authority was to be found in vol. 2 Parson's Maritime Law, page 142.  In the case of the "Lismore" be believed a pilot had offered himself, but his services were not accepted by the Captain, which amounted to negligence.  He should now proceed to call evidence for his case, and would endeavour to prove that the ship was a common carrier, that the goods claimed for were received on board by an officer of that ship, and finally their loss.

   WAN-LAN-TSING, cautioned, said - I am a clerk in the employ of the Paouyue hong, Foochow, an d in charge of shipping goods - in fact shipping clerk.  The hong is agent on Foochow for the Fookee hong, plaintiffs in this action.  I remember on the 25th of October last taking some goods on board the "Lismore." There were 100 bdls. of paper and 50 bdls. of joss paper.  They were to be carried to Shanghai.  I am shown a paper which I received from a Chinese on board the vessel.  I know it to be the same receipt by the Chinese mark on the back.

   This document was handed in by Counsel for plaintiffs.

   Examination continued - I delivered the goods and received that receipt; there was nothing else given as acknowledgment for them.  I don't know what freight was paid.  I don't know any paper called by the name written ands shown to me meaning to take delivery of goods and to take them to that man at Shanghai.

   It was found impossible to make the witness comprehend what a bill of lading was.

   Cross-examined by Mr. Rennie - I intended to be understood to say that I had charge of goods to be shipped on board vessels generally at Foochow.  Sometimes I receive a different form of receipt from the one in this case; which I cannot tell in English - (showed it to be in the writing filled in).  I have shipped goods on board the "Appin."  I have never shipped goods on board the "Fee-sing" (or "Prince Kung") but I have on the "Fenella."  The form of the receipt I could not describe, not knowing English.  I have shipped goods on board junks and have also received receipts then - acknowledgements of the quantity.  I have heard of claims for goods shipped by a junk and lost in her, the receipt always contains the stipulation that the goods will be paid for.  Sometimes we insure a cargo going by steamer, but that I have not to do with. I have sometimes transacted this business also.

   Mr. HARWOOD asked witness whether a Chinaman could effect insurance simply on the receipts.  Witness replied that he could not tell as he had not to look after insurance.

   MOHOW-YUE-TSUNG, cautioned, said - I am a partner in the Fookee hong.  I recollect receiving the receipt shown me sent by my partner from Foochow, for goods shipped by the Paouyue hong as agents there.  These goods were never received.  Their value was Tls. 1,320.  I have only received this form of receipt for goods by the "Lismore."  Jardine's vessels differ from others in taking goods.  They insure them.  I have sometimes known a different paper granted by other shipowners and agents, with more writing in it, but not from E-ho.  With that receipt I could not insure, nor would I get an advance from a foreign Bank upon it, though I would on a bill of lading.

   Cross-examined by Mr. Rennie - I have been the distinction between a bill of lading and told a receipt by a friend.  We sometimes give a paper accompanying the goods and receive a bill of lading.  I have got different documents from this one, but the transactions were done by the Paouyue hong and I do not know by whom they were granted.  I don't know anything at all about the shipping, it is done by the other hong.  I am quite sure I have had different documents from this from the River steamers.  For goods going to Foochow, I have had bills of lading sent me, but not in receiving from that port.  I have had them for the "Yuen-tsefei," last year.  I don't know how these bills of lading were obtained.  I have never had goods up by the "Prince Kung" but have had by the "Fenella," and Chinese receipts stating in Chinese they had received so many packages of goods deliverable in Shanghai and  saying whether freight was paid or not.  It is not the custom to insure by the "Fenella" because she belongs to a Chinese owner.  I complained regarding the non-delivery of my goods on the 21st 10th moon (30th November) to the Paouyue hong here.  They told me that the "Lismore" was wrecked outside Woosung and I asked why they had not applied for the goods, when they said lighters had been sent (the "Dragon") to take them up.

   On the same day I went to E-ho, when they said I could not get the goods. That was the only application I made for them.  Some friends introduced me to Mr. Harwood; when, I don't remember.  I first went to Jardine's hong and asked that the goods should be given to me.  I went with the manager of the Paou-yue hong, Hok-chun.  I didn't understand what Hok-chun said to the compradore there. Don't remember that the compradore said it was a very unreasonable thing for us to make any claim at all, but as we were poor men Mr. Keswick ought to do something for us.  We claimed for our goods which were entrusted to them and not delivered.  Don't know that Hok-chun went to Eho a fortnight after.  Remember a meeting of merchants on 10th Dec. called on account of Hongkong goods, to apply for the goods or if they could not get them for their value.  I say it is true they did so. I was one of the men who signed a circulator sent out calling the meeting, stating the "Lismore" had been wrecked and the goods taken and sold, and calling upon the merchants to meet and settle about the matter.  There was a phrase in the circulator that the E-ho hong had lightly treated people and had not had regard to the interests of shippers.   We gave the receipts to Mr. Harwood, asking him to write to Jardine Matheson and Co., a fortnight before that meeting, and instructed him to sue them if they did not pay.  I cannot tell if my goods would be destroyed by being under water for three or four days - any goods almost would be spoiled.

  LU-TI-YU, cautioned, stated - I am shipping clerk in the Paou-yue hong, Shanghai, and got the receipt shown me from Fookee to take goods from Jardine Matheson and Co.'s.  I went to them to have the receipt signed, so that I could take  delivery of the goods, and Tony-ting-sing, the compradore, told me that the "Lismore" was wrecked, but to wait till the "Dragon" came in with the goods and he would then sign it.  When the "Dragon" came, I went again to Tong-ting-sing, who said there were no goods brought up.  The value of the goods here was Tls. 1,320, and freight paid at 40, 50 and 60 cents a package.  The total amount I do not know.

   Jardine Matheson & Co. always give this style of receipt for goods coming up by their steamers, but differ from other people in that they will insure goods carried by them.  It would not be possible for a Chinese man to insure his goods from this receipt in a foreign office.  The "Lismore" had been running about a year.

   His Lordship said he could not see why insurance should not be effected by the receipt as well as by bill of lading.

   Mr. HARWOOD understood it was because the bill of lading only could become a negotiable instrument by endorsement and pass property to the endorsee.

   Mr. RENNIE did not think it was always invariable to refuse to insure on the receipts.  As a matter of fact he could state that a quantity of treasure shipped in the "Lismore" on the same trip was insured on a similar form of receipt.

   Mr. HARWOOD presumed, though he was without full information on the point, that it was necessary to insure on a bill of lading for goods liable to deterioration, in which case the clause regarding good order and condition guarded against the interests of the insurer.

   Cross-examined - I am a shipping clerk in Shanghai and have frequently shipped goods on board steamers, when I have received a receipt from the vessel with which I go to the foreign hong and get a bill of lading.  I have never got a bill of lading without going to the foreign hong with the receipt.  It bears that if the goods spoil on the way the ship owners will not be answerable for the damage, therefore I wanted to get bills of lading so as to secure the goods and if necessary get them insured.  I have always to go with the receipt and get that; it is not voluntarily tendered.  This is the ordinary form of receipt, which sometimes has the addition of a note declining responsibility for deterioration.  I have always got a bill of lading for the receipt when I applied.

   Re-examined by Mr. Harwood. - Jardine, Matheson and Co. do not grant bills of lading at Foochow, but always receipts, on which the goods are guaranteed delivery in Shanghai.

   WILLIAM JOHN PAYNTOR, sworn, s aid - I was chief officer on the "Lismore": on her last trip.  That is my signature on the receipt.  I would not have signed it unless the goods it refers to were on board.  I don't know if it is usual to give bills of lading to Chinese shippers.

   We had no pilot on our last trip, and none tendered his services.  Before that pilots had, and we refused to take them, because the Captain knew the river as well as any of them.  I did not know that the light was liable to shift.  I believed it was moored to two anchors.  I think Mr. Robert Jardine was owner of the "Lismore."

   Cross-examined - I have been some time on the coast and this receipt is the ordinary form.  I have never signed any other form during my experience as mate.  I know no other.  I said the "Lismore" had no pilot, and we were not in the habit of taking one.  Capt. Morrison knows the river well, as he has been on it ten years.  I was present at the Court of Enquiry into the loss of the steamer, and the judgment read to me is what was given on that occasion.  I know nothing of granting bills of lading.  I should have given this receipt to the Compradore on board, and he would have given it to the shipper.

   Re-examined by Mr. Harwood - I have been on the river 18 months, and don't know that pilots are carried on any of the lines.  We have not done so either north or south.

   YANG-TSING-CHONG, cautioned, said - I am a member of the Fookee hong at Foochow.  The E-ho hong there said this receipt paper was enough, and that goods would be obtainbed on it at Shanghai.  Chinese would not formerly ship goods in their vessels, and so Jardine Matheson and Company sent out to say that they would guarantee goods shipped by them.  This receipt they said is proof that the goods were taken on such terms.  They refused to give a bill of lading.

   Cross-examined - I asked for a bill of lading in shipping goods.  I went with the man who shipped the goods in question.  I know this receipt, which I took to Jardine, Matheson and Co.'s and asked them to exchange for a bill of lading, but they said it was unnecessary, that the receipt was the usual form.  I know the first witness, who went with me to do the shipping and who gave the paper to me.

   Mr. HARDWOOD said, putting in the evidence printed as taken at the Naval Court, that was his case.

   On his Lordship proposing to adjourn the sitting of the Court, before taking evidence for the defendants,'

   Mr. RENNIE asked to be permitted to submit a few observations bewaring on the law affecting the action.  He would not trouble the Court with any remarks upon the character of the witnesses or the testimony they had given for plaintiffs, nor upon the way in which the case was got up.  The case was one of some importance; and although he had not yet brought forward evidence for his clients, he thought he would be able to make it apparent to the Court that it was hardly necessary that he should do so, as he submitted the plaintiffs had failed to make out any case in law, and therefore must and ought to be non-suited.

   The Counsel on the other side had failed in the first place to show that the owner of the streamer "Lismore," though his agents, had ever received these goods on the terms that they were to be carried and conveyed by them to Shanghai as common carriers; and secondly, assuming that he had produced evidence to show that, and to induce his Lordship to believe that the "Lismore" received the goods as a common carrier, he had still failed to show that the Custom of the Realm of Great Britain here applied, and that the "Lismore," her agents or owner, was liable as insurer of the goods shipped by here.

   He (Counsel for the defendants) would now proceed to state the points on which he founded his application for a non-suit.  First, that of liability by custom of the realm, of the common carrier, as insurer of goods entrusted to him for conveyance from one place to another; and would cite the case of Bennet v. the P. & O. S. N. Co., IS Law Journal Common Pleas 86 & 87; where the effect was that the Custom did not apply to passengers and to contracts made within the Realm when for places beyond it.  The next case in support of that doctrine was that of Crouch v.  the London and North-western Railway, 23 Law Journal Common Pleas 78-81, where goods were to be carried from England into Scotland, in which it was decided that as the contract commenced at a place within the Realm the applicability of the Custom was good, and he cited those two cases to show that conversely, where a contract was not so made within the realm, the Custom of the Realm could not affect its fulfillment.  The contract should have been made within the Realm, and his Lordship must have observed that the numerous cases cited by Mr. Harwood were all in that position.

   He would further cite the case of Martin v.  G. I. P. Rly., 37 Law Journal, Exchequer 29, an Indian case and under British Law, where it was assumed that the Custom of the Realm could not be advanced.  No one had yet had the audacity of the plaintiffs, to endeavour to apply the Custom of the Realm to ships going from one foreign port to another; the case Crouch and Bennett was the nearest that could be quoted to this, and there the engagements were made within the jurisdiction of British Common Law  and Custom.  That Common Law liability of a carrier was, as Sir William Atherton observed, all very well where the carrier had his remedy at and the protection of British Law, but could not be applied with the justness which was its essential characteristic where the other party to the contract was outside the Realm of Great Britain.  The only inference to be drawn from such an opinion was, that where the point was hardly contested when one person was within the Realm it must be in a much stronger case where, as here, both parties were outside it.

    The three points on which he wished to urge his case were that the plaintiffs had proved the receipt granted by the defendants as shipowners trading under the shipping laws of England, not according to the custom of common carriers, but according to the local laws affecting shipping.  The receipt thus taken was the usual acknowledgment given by the mate for goods put on board, but it was only a precedent to a bill of lading for which the plaintiffs had not applied and which they had not been refused.  They had chosen to retain the receipt, which had simply therefore equivalent conditions to the bill of lading.  He might, however, ask his Lordship to consider the case of any foreigner or Chinese here shipping say 100 tons of tea.  Upon putting the goods on board her would get, as a matter of course and right, a mate's receipt, which he might neglect to exchange for a bill of lading.  The ship proceeds on her voyage, is lost, and after that the shipper turns up and says "I have shipped with you and you have given me this receipt, you have given me no bill of lading, done nothing to protect yourselves, you must therefore may me as insurers of my goods."

   He would now refer to the ordinary form if the bill of lading, to show that it would contain certain exceptions, as the act of God or the Queen's enemies, shipwreck and every other danger of the sea, &c.  This conditional contract would be issued in pursuance of the engagement entered upon by the mate's receipt, and upon the latter acknowledgement of being given up.  If by any chance bills of lading as well as a ship's receipt were out for the same goods, the holder might claim on both.  He cited Shuster v. Mackellar, 26 Law Journal, Queen's Bench, 28, where it was held that no bill of lading should have been issued so long as the mate's receipt was out, and the shipowner's responsibility for both was sustained against a contrary plea.  The duty of the shipowner was perfectly clear therefore, and he maintained that of the shippers did not apply for it, they shipped as recognizing the mate's receipt to be of the same effect and intention as the ordinary bill of lading.

   The last witness heard stated that Jardine Matheson & Co. were different from other owners, that they were prepared to insure the goods they carried; while they gave bills of lading when applied to; showing that the Chinese shippers perfectly understood their goods to be liable top shipwreck or damage, unless insured; and could not advance liability for anything not clearly the consequences of negligence.  His friend had asserted that the loss of the "Lismore" was not properly the result of the perils of navigation, but caused by the negligence of a third party - by the shifting of the junk light in the river.  He, however, quoted Ionides v. U.M.I. Co., 52 L.J.C.P. 70, showing that in such cases insurers were still liable for loss.  He must therefore put it to the Court that the plaintiffs had no case as to the mate's receipt, that they were bound and should have taken out a regular bill of lading; and that as the loss fell under one of the exceptions ordinarily inserted in such a document, they could have no claim to receiver against the ship.

   There was still one thing he had to meet, the argument by his friend that negligence had been shown in the omission to engage a pilot.  Here he would quite from Parson's Maritime Law as to pilotage, to prove that it was not necessary to have done so if the master or any one else on board had sufficient local knowledge and skill in navigation to pilot the vessel; and there was nothing to show that the master was not able to do so here, while the mate had spoken of his acquaintance with the River.  The judgment of the Naval Court had affirmed that the loss was not due to want of skill or knowledge, but solely to the negligence of a third person, which, as he had shown, was here recognised by the law in the liability of insurers as a peril of navigation.

   As his Lordship proposed to adjourn, he would at once draw his attention to authorities he had as yet omitted to being forward - Thomson v. Trail, 2 Carrington 326, and White v. Western Railway Co., 26 Law Journal, Common Pleas, 458. 

   He finally submitted that the case was in the position that, if his Lordship were putting it to a Jury, he would feel obliged to tell them, first, that there was no evidence of the plaintiffs having shipped the goods by the defendants' steamer upon the common law liability of carriers, and next that as here the contract was made and the liability had taken place without the Realm, the liability which custom at Common Law imposed did not apply.

   The Court refused the application for a non-suit, and adjourned.

Feb. 10th.

   When the Court reassembled this morning, some time was passed in the discussion of the above points on which Mr. Rennie founded as above, chiefly that the Custom of the Realm erected into the Common Law of England, a law essentially of common sense, did not apply here, Mr. Rennie combating the view of the Court that whether a sensible provision or not it must be applied under the directions given by the 4th and 5th sections of the Order in Council.

   The following evidence was called for defendants.

   BRODIE A.  CLARKE, sworn, said - I am an assistant in Jardine Matheson and Co's; I am aware what goods were received from the wreck of the "Lismore."  I produce a list of them; but there are no goods with the marks of the Paouyue hong except a box of lychees.  Two other boxes of unclaimed goods being all that remain of the cargo saved.  I would have been aware if any other packages were saved.

   Cross-examined - There was some paper saved, and it was advertised for sale.  Some joss-paper was saved and advertised, but none of it the packages referred to in this suit.  The marks of the paper subject matter of this action were not entered in the manifest of saved goods.  What paper was saved the Chinamen brought up themselves, sorted, brought their receipts, and took delivery of.  I cannot say what has become of the proceeds of the sale of the paper saved.  I have nothing to do with the accounts of the sale.  I looked over the cargo and made up a manifest, with the lots that were saved marked in it.  I can vouch for the correctness of the list of saved cargo, because I made it up myself while the goods were being sorted.  I cannot say of two packages in the advertisement belonged to Fookee.  If the applicant saw any of the cargo he should have produced his receipt and he would have got it.  I have never known bills of lading given to Chinese shippers at Foochow.  They don't take bills of lading, but we deliver upon the mate's receipt.  Chinese shippers to the North principally apply for bills of lading.  A great many of them don't know what they are.

   To the Court - When a receipt is brought for delivery of goods, I countersign it, purring "please deliver" to so and so, when it is then taken to the steamer or wharf and the holders gets delivery upon that.  I would do just the same with a bill of lading - tick it off on the manifest and countersign it.  To all intents, so far as we are concerned, we recognize the receipt as a bill of lading, and as if we felt bound to deliver goods on it, and we deliver them without any further enquiry.

   Re-examined - I said the Chinese frequently apply for bills of lading.  They generally bring them themselves, or if they can't write have them made out in the office.  We exchange the bills of lading for the mate's receipt, which they bring with then.  Bills of lading are granted only on the application of the shipper, and would not be granted unless he produced the mate's receipt.  The form shown me is the one we give when they apply to have them made out in the office, but sometimes they bring their own forms, though there is really no difference.  We would not, as a matter of course, accept the form brought us by a shipper.  We examine them to see if they are in accordance with our rules, and at certain seasons certain clauses are inserted in them.

   W. PATERSON, sworn, said - I represent Messrs. Jardine Matheson & Co. at Foochow.  I have been there between three and four years, and have acted for two years specially as an agent for the steamers of the firm running to that port.  If the receipt granted by the mate had been sent in to me, with a request for a bill of lading, I would have granted it at once.  Chinese shippers do not, as a rule, apply for bills of lading; and I would not have granted one unless a mate's receipt were produced.  Applications were received in three instances that I know of and given at once in two, for this steamer.  In the third the Chinaman was asked to return in an hour and he would have it, but instead of waiting he had it made out at the Customs and we signed it.  It is the duty of shippers to make out their own bills of lading and send them in with the receipt.  In issuing or not issuing bills of lading, just as they were asked for, I was pursuing no special instructions, but following the ordinary course at the port.  In case of foreign shippers at Foochow they would get them if they applied for them, or they might hold the mate's receipt.  To find out the shipper and offer or force bills of lading upon him would be nearly impossible, that is to say impracticable within a reasonable time.  I cannot say if advances have ever been obtainbed by Chinese on a mate's receipt.  If applied to for an advance on that security I would have granted it.

   Cross-examined - The three instances I spoke of were in shipping by the "Lismore."  We always see the agents of the Chinese shipper, though as a rule they engage freight through the compradore.  They are obliged to come and give us particulars for the manifest.  I am not aware that we have notices either in Chinese or English put up in the office, limiting our liability.  I am not aware that my compradore has ever refused to give bills of lading.

   To the Court - I would advance on receipts, but not unless I felt assured of their goodness when the cargo did not go by our own steamer.  I would not do so on a receipt from a Chinese owned ship.

   His Lordship expressed an opinion that as bills of lading were for the protection of the shipowner, it was his duty to insist on their being used or he must take the consequences, if he did not instead protect himself by inserting clauses similar to those contained in bills of lading in the ship's receipt.

   Mr. RENNIE pointed out how impracticable and inconvenient it would be for the shipowner to pursue and find the shipper to exchange the one document for the other.

   Mr. HARWOOD handed in the following memorandum, to show that defendants had since acted in the way his Lordship had suggested, of protecting themselves by putting a limitative clause on the ship's receipt:-

It is hereby declared, agreed and understood, between the shippers of the goods herein named and the master of the steamer above-named, that this receipt is issued and accepted (in the event of its not being exchanged for a bill of lading) as if it were in all respects a bill of lading, granted as customary by the Master or Agent of the said steamer, and subject to all the conditions inserted in such bill of lading.

   Mr. RENNIE quoted Abbott to show that the shipper is the one to make out the bill of lading or to see it done.

   His Lordship thought it was at least as much the duty of the shipowner.

   Witness continued - Foreigners who are shippers always keep forms or apply for them at the office if those used by the line contain stipulations not in the ordinary bill of lading.

   In pursuance of a point suggested by his Lordship as to what would be the effect if a mate's receipt were taken in England in a case like the present, Mr. Rennie said he believed both parties would be in the same position as with a bill of lading - the goods would he held to the order of the shipper, and on the other hand it would be understood that the exceptions of an ordinary bill of lading would apply.  His Lordship however seemed to be of the opinion that if there was no bill of lading the shipowner would be bound to deliver up the goods in the same condition in which he got them, or make good the loss, from whatever cause.

   THOMAS DUNN, sworn, said -0 I have lived at Foochow since 1856, and have been engaged in shipping as a proprietor of cargo-boats transshipping cargo for and from steamers.  I have shipped and landed for Chinese.  The practice with I think all the cargo I have shipped has been to hold the mate's receipt.  I used to ask them whether they w anted bills of lading, but it is the general custom now not to take them.  Steamers now come up to Foochow, but some years ago they used to lie at the Pagoda Anchorage.  The goods were then sent down in boats, taking 3 to 4 hours on an ebb tide, and coming up perhaps in two with favorable wind and tide.  When the steamer loaded at the Anchorage she started at once, dependent on the state of the tide; and the agents always resided at Foochow itself.  From my experience I should say it was undoubtedly the duty of the shipper to apply for bills of lading.  It would be very difficult for owners or agents to pursue shippers and get them to give up their mate's receipts for bills of lading.  Chinamen there ship in small lots, and it is generally done through native brokers.  Both among foreigners and Chinamen it would be the case that they should apply with the mate's receipt for bills of lading. 

   I never knew of a Chinaman applying for one for goods leaving Foochow, however, nor any particular instance of his doing so for goods going south.  The receipts might be signed by either the master or mate.  I don't know if it would be open to the shipper to have a receipt changed for a bill of lading after the ship went.  Under any circumstances bills of lading would not be got without the mate's receipt.  I have known of insurance being effected on the receipt.  I insured goods about 3 weeks ago in that way.

   To the Court - So far as getting the goods is concerned, the receipt is operative as a bill of lading.  I ought to explain that I merely applied for insurance, and was not asked whether it was on a mate's receipt or a bill of lading, but I know it is done.  This was in a case of Chinese goods.  An insurance office I believe would not make any difference.

   To Mr. Harwood - A respectable Chinaman would get insurance upon a mate's receipt.  At least I am quite confident the Yangtze Insurance Association would take it.

   To the Court - Foreigners at Foochow send cargo without taking out bills of lading, and the receipt is sent up to the consignee of the goods, whose name is not upon it, but who by presenting it here would get delivery.

   A-WAY, cautioned, stated - I am compradore of Jardine Matheson and Co. at Foochow, and have been in their employ 17 years.  Know that steamers latterly came up to Foochow, but before that they stayed at the Pagoda.  No Chinese ask for bills of lading, and none have asked me for them, because of the "olo custom" of sending the goods down to the Pagoda Anchorage and getting the mate's receipt, when the steamer went off immediately.  If I shipped goods in junks and they went down I would not expect to be paid damages.  Chinese would give a receipt which merely said that so much cargo was received on board to be delivered at the destination of the junk, that of course depending on her making a sage voyage.  Remember the loss of the "Prince Kung," which had Chinese cargo on board, the owners of which did not ask to be and were not paid compensation.

   Cross-examined - The "Prince Kung" was owned by a Chinaman.  The "Lismore" would charge much more than a Chinese vessel.

   Re-examined - I don't know what kind of receipt was given by the "Prince Kung."  The rate by the "Lismore" was about the same as with other foreign steamers.

   Mr. RENNIE said that, having the previous day ventured to allude solely to the grounds of law on which the plaintiffs should be non-suited, it now became his duty to investigate the facts of the case and the bearings which they presented.  His Lordship would see that the plaintiffs, acting under advice, were here seeking to take every advantage which the jurisdiction of the Court over the defendants enabled it to give them at law.  But in so doing, he would beg his Lordship to bear in mind the maxim that no man can be allowed to take advantage of his own wrong.  Applying that maxim, he thought his Lordship would see that the Chinese here, knowing the terms of carrying the goods, and that as a rule shipowners were not insurers, but that Messrs. Jardine Matheson, as one of the witnesses had said, were different - they were insurers (of which they did not bring forward one tittle of proof); and the ordinary terms on which foreign vessels shipped goods, and that they shipped their goods and obtained the receipt in accordance with the custom of the Foochow trade; - knowing all that, they had the audacity to bring  forward here and to press a claim of a character as unconscionable and unjust as could well be imagined.  It was in accordance for the defendant's counsel, when he had a weak case, to vent accusations against the plaintiff's counsel; but though he (the learned counsel) felt that he had a strong case, he thought his Lordship would not say he spoke too strongly when he said the claim was monstrous ands unjust, and indeed in his practice he had never known the law called in to aid the enforcement of such an iniquitous proposition.  In not forcing a bill of lading upon the plaintiffs, (which he did not know how they could have done it if they did not wish for it) the defendants had been acting solely in accordance with the custom at this and all the other ports of shipmen, and for the convenience of the shippers.

   A question put by his Lordship in course of the day seemed to show that in his Lordship's opinion the shipper got all the advantages from the receipt he could get from the bill of lading, while at the same time he would be absolved from all liability.  That question succeeded in eliciting an answer to the effect that the shippers could get every advantage usual with the other, except that of being able to transfer their property by endorsement upon the receipt.  But to say that they got every advantage and, besides, held the shipowner liable in every risk, was to advance a proposition unsustainable in law or reason; in law because not one single case had been adduced to show that the shipowner was liable for goods received on the mate's receipt, unless he refused to exchange that security for a bill of lading.  The authorities pointed in directly the opposite way; and if the Court should go to the length of holding in this case that because the shipowner did not seek out these Chinese shippers at Foochow, and say "there is the bill of lading, you must sign it," they must bear the loss, it appeared to him would be opening the door to a mass of fraud, and establishing a principle to which the law was never intended to give countenance.  His Lordship had suggested that the owner should have put in the mate's receipt some clause saving himself, and he had since done so, but for hundreds of years the document had been used without that being presumed to be at all necessary.  It appeared also that the bill of lading could only be given upon the surrender of the mate's receipt, and upon the shipper giving particulars by which it could be filled up.  It would be impossible for the shipowner or agent, however anxious, to prepare the document without the information being given by the shipper.

   His Lordship said the shipowner might have refused delivery, and then the shipper would have taken care to avoid the irregularity afterwards.

   Mr. RENNIE argued that supposing they did so, however, the shipper might have sent up power of attorney and recovered the goods; the ship could not retain them, freight being paid; they were the shipper's goods.  His Lordship would observe, too, that in the case being tried, the partner of the shipper was in Shanghai and went and asked for the goods, and had a right, under the condition  of their having arrived without accident, to obtain them.  This was the position in the majority of cases with Chinese, from the arrangement of guilds and partners in different places.  If the course his Lordship suggested were to be worked out, it would create general inconvenience and entail on the shipowner a monstrous responsibility.

   His Lordship said it might be considered whether the shipowner might not evade responsibility being thrown on him by refusing to carry goods under the mate's receipt.

   Mr. RENNIE said that would be very difficult to put into practice.  He submitted that his Lordship would in this case either find that these goods were shipped on board the "Lismore" by the plaintiffs with the knowledge, on their part, that they should have taken out bills of lading or that, if they did not, they sent them under the same conditions as if they had.

   If they knew, as it would appear from a statement made by one of them that they did, that ships ordinarily were not insurers, and that the receipt was a document they ought to exchange for bills of lading, then the finding must be against them  He referred the Court to the testimony of the witness who said "Jardine Matheson and Co. are different from others, inasmuch as they will insure goods taken by their steamers;"  and that of the clerk in the Fookee hong, who said Jardine's had sent out and intimated to shippers that they would insure.  This witness had also said that he applied for a bill of lading in this case and was refused, yet the first witness brought said he had taken his goods on board, deceived the receipt, and sent it up here without referring to any part taken in the matter by the last witness for plaintiffs. He thought his Lordship would dismiss, and would feel called upon to dismiss from the minds of a jury, the evidence of that last witness altogether.  The testimony of Chinese was usually not very reliable, but he thought that of the witnesses called for plaintiffs yesterday was as little so as any ever given to the Court.  Such as it was, however, it demonstrated that the Chinese never took the trouble to obtain a bill of lading, though they knew what it was.

   His Lordship remarked that it was not in their interest to take one out.

   Mr. RENNIE repeated that such a principle would be against the maxim that a man should not take advantage of his own wrong.  It was the duty of the shipper to take out a bill of lading, the mate's receipt was merely a preliminary step towards it.

   His Lordship still thought it was not the duty of the shipper, whose duty could only consist in the preservation of his own interests, to render up the mate's receipt and call for a bill of lading.

   Mr. RENNIE asked if his Lordship would go to the extreme of saying that the ship was liable as an insurer, if a man had been told when he got his receipt, to take out a bill of lading, and would not go and do it?  Would the agents then require to follow the shipper about the highways and byeways, to tender him the bill of lading?  It was contrary to all shipping trade, but he believed it was sometimes the case that bills of lading were made out on board, by the master, on the guarantee of respectable shippers that the goods were there.  In the other mode the receipt must be given to enable the ship's agent to know that the goods had gone on board, and to secure himself in giving the bill of lading, and it existed for the convenience of all parties.

   His Lordship said of course the shipowner could not enter into an agreement with his eyes shut, and the mate's receipt was simply a document by which he was guided in filling up the contract which he should have made.

   Mr. RENNIE thought, taking it that way, his case would be still stronger, and the inference must be that the only terms upon which the shipowner meant to carry the goods were those of a bill of lading.  He had already proved that shipowners were not insurers ordinarily; that the shippers knew that, and what the terms of shipping usually were; he now quoted the case of Malhas v.  South-western Railway 1 Law Reports, Common Pleas, 338, to show that where the contract for carriage was incomplete parol evidence might be called to show what was the intention of both parties when entering upon it. 

   He put the case to the Court as it now stood by the evidence - that it was not the intentions of the defendants to be liable to the shippers as insurers, while that of the latter intending to hold them liable there was no evidence.  He did not think his Lordship, looking at the case as a juryman, could find it to be otherwise.  If the mate's receipt was an incomplete contract and valueless in itself as an agreement to carry the goods, he thought his lordship would find, on the parol evidence, that these were to be taken on the ordinary terms.  The mate's receipt implied that it was to be exchanged for a bill of lading or else it implied nothing at all.  If the receipt is not considered of any value, they were driven back upon the parol evidence, and on that evidence the plaintiffs were out of Court.  Their own statement was that they knew Jardine's to be insurers, and the intention of a bill of lading; and the last witness for them said they had gone to obtain one.

   In conclusion , the learned Counsel submitted that the plaintiffs'' demand was unjust, extortionate and unconscientious, that it was fortified by unreliable and contradictory evidence; and that a judgment in their favour would open the door for innumerable frauds, as well as greatly inconvenience the trade here.  Chinese shipping was generally done in very small quantities, steamers would be delayed till the receipts were exchanged, extra expense would be added, and by a decision for the plaintiffs the class of people now suing for would ultimately be the losers.  He not only hoped therefore that his Lordship would decide for the defendants, but that he would make such remarks in doing so as would check the bringing of actions of this description in future.

   Mr. HARWOOD rose to address the Court in conclusion, for the plaintiffs.  His Lordship had the previous day expressed some doubt as to the power of an officer of a ship to bind the owner, by receipt of goods, which he would now meet by citing Cobbin v.  Down, 5 Espinatte 41, where it was decided that delivery must be to an officer or agent of the owner, and that delivery to the mate was sufficient.  His friend's first objection was that the owners of the "Lismore" did not receive the goods as common carriers; but he (Mr. H.) thought it had been sufficiently shown that this steamer constantly plied on the line, received goods from all who chose to bring them, and was therefore a common carrier.  The next objection was that the custom of the Realm, by which common carriers were liable as insurers of goods, did not apply here.  His friend seemed to rely more upon the arguments of the defendant's counsel in Martin v. Great Indian Peninsular railway, than upon any actual decisions of law.  Perhaps such a custom of the realm not apply to India, for India has a code of law of its own.  The custom of the realm is part of the common law of England.  Common Law is simply universal custom, and by the 4th and 5th sections of the Order in Council it is expressly provided that the Common Law shall be administered in the Supreme Court for China and Japan, in cases between British subjects themselves, and between foreigners and British subjects.  Whatever cause occasioned such a law, it existed now, and he thought it was binding in this case.  If his Lordship was of opinion that the Common Law prevailed here, and that the "Lismore" was a common carrier, he then submitted that the defendants had not shown that they were relieved of their responsibility as regards the goods in question.  He might recall the cases he had quoted on the previous day, and repeat the decision of Chief Justice Best, that if carriers wished to limit their responsibility they had to intimate their terms to every person who came to their office, and to place in his hands a printed paper to the same effect. That was not done in this case, nor would it have been necessary perhaps had the terms been even made known by advertisement.

   His friend had quoted the maxim that no man can take advantage of his own wrong, but this he thought applied equally to the owners of the "Lismore," who omitted to give notice of the limitation of their liability, and were now taking advantage of that.  Mr. Rennie had also said the shipper should have taken the mate's receipt and got a bill of lading, but the law was that if a carrier wished to limit his liability he must take the burden of doing so himself.  Mr. Rennie had also contended that it is the custom at Foochow to take mate's receipts, and that bills of lading were not there regarded as necessary; but to make a custom binding at law it must be shown to be of long standing, certain, continued, reasonable, and compulsory.  The hardship of the case could not alter the liability of the ship-owner.

   Defendant's Counsel must have felt that he had a very weak case indeed, or he would not have thought it necessary to make the remarks he had.  He would now leave his case to the Court, contending, upon its merits at law, that he was entitled to a verdict.

   The Court reserved its judgment.


27 February 1871

Source: The North-China Herald, 1 March 1871




Feb, 27th, 1871.

Before C. W. GOODWIN, Esq.


   Mr. HARWOOD for plaintiffs.

   Mr. RENNIE for defendants.

   The evidence in this case, was reported in our issue of the 15th February.

   His Lordship to-day delivered judgment as follows:

   The plaintiffs seek to recover the value of certain packages of paper, shipped on board the defendants'' vessel, the "Lismore," and which they have failed to deliver, not having been hindered from doing so by the Act of God or the Queen's enemies.  The second paragraph of the petition alleges that the vessel was lost by the carelessness of the defendants or their servants; and as, if this point were supported by the evidence, the case must at once be decided in favour of the plaintiffs, it is proper to allude to it first.  The evidence produced was the finding of the Naval Court which sat upon the occasion of the wreck of the "Lismore, "and some stress was also laid upon the fact that the captain had omitted to engage a pilot.  The finding of the Court, however, entirely exonerated the captain and his crew from all blame; and it being in evidence also that he was well acquainted with the navigation of the waters where the ship was list, the mere fact of his not having had a pilot is not sufficient to negative the judgment given, and I must take it that no negligence has been made out, but that the accident was one which comes under the head or the perils of navigation.

   The main point relied upon by the plaintiffs was that the defendants, being common carriers, and having undertaken to convey the goods from Foochow to Shanghai, without any contract or notice limiting their Common Law liability, must be considered to have insured against all contingencies, except the Act of God and the Queen's enemies.  There can be no doubt at all that the defendants were, prima facie, and in the ordinary sense, common carriers.  Their ship wass a general ship; nor would the mere fact of their contract for carriage having been made out of the realm of England exempt them from the liability which the law of England imposes upon them, supposing the case had to be decided in that country.

   In the case ort Laveroni v.  Drury (22 Law Journal, (N.S.) Ex. 2) which was not cited at the hearing, and in which a question arose upon a contract made in Genoa, Pollock C.B. remarked,

"the principle laid down in Dale v. Hall affords the only true rule of ascertaining with certainty the liability of the master and owner of a general ship, namely, that prima facie he is a common carrier, but that his responsibility may either be charged or qualified by the terms of the bill of lading, if there be one, and the question is whether the defendant is liable or not is to be ascertained by the terms of that document, when such a document exists."

This disposes of so much of the argument as turned upon the so-called custom of the realm of England with regard to common carriers.  Whether called a common carrier or not, the owner of a general ship, contracting in a country other than England, for the carriage of goods, incurs prima facie the liability to insure against all contingencies, except the Act of God or the Queen's enemies.

   But it is added that he may limit this liability by the terms of the bill of lading, and this is the well-known and universal custom, amongst the nations of the Western world. The one form of the bill of lading used in England continued the single exception of "the danger of the seas," no mention being made of the Act of God or the King's enemies, these exceptions being implied by law.  Of late years a more extensive clause of exceptions had been introduced into bills of lading, viz: "the Act of God, the King's enemies, fire and all and every danger and accident of the seas, rivers and navigation, of what nature or kind soeveer, excepted." Still wordier forms exist, and that which was produced at the hearing as the common printed form used by the defendants, and adapted particularly to steam navigation and to China seas, is as follows:-

The Act of God, Pirates, Restraint of Princes and Rulers, Fire at Sea or on Shore, accidents from machinery, boilers, steam or any other accident of the Seas, Rivers and steam navigation, of whatsoever nature or kind, excepted.

   Now, the peculiarity of the present case is that no such bill of lading, nor any bills of lading at all, was given by the captain of the "Lismore" to the plaintiffs, and the only document they have to show is the mate's receipt, given at the time when the goods were put on board; and the real question upon which the case turns is whether, in compliance with the Rules of Law, the contract for carriage made between the plaintiffs and defendants can be considered to embody the exceptions which the bill of lading would have container had there been one  delivered.

   The point then to be determiner is, what was the real contract between the defendants and the plaintiffs, with regard to the carriage of these goods, or, in other words, can the plaintiff be held to have had distinct notice of the terms upon which the defendants profess to have carrier the goods, namely, that they were not liable for the perils of navigation?  The English Courts of Law have always held that the onus of proving notice of limitation of liability lies upon the carrier, and they have required that it shall be brought home to the owner of the goods who has entrusted them for carriage in the most distinct way.  It is necessary therefore to look into the evidence to see what is the case here.  It is shown, on the part of the defendants, that some years ago, in consequence of the distance at which vessels lay down the river, a custom arose of dispensing with bills of lading.  The goods were sent t down to the Pagoda Anchorage some 12 miles from Foochow, in cargo boats, the mate's receipt was obtained, and there was rarely time to get this receipt exchanged for a bill of lading at Foochow, where the agents reside, before the ship left.  In later years, the steamers have gone up to Foochow itself, and this was so with the "Lismore" in the present instance, but the old custom of dispensing with the bill of lading has continued when the cause of it has ceased to exist.  The practice has been recognized by the defendants, by their habitually delivering goods at Shanghai, upon the production of the mate's receipt alone.  But can it be inferred, from this explanation, that the Chinese in general, or the Fock-kee hong in particular, are acquainted with the stipulations in Messrs. Jardine, Matheson and Co.'s ordinary bills of lading?  Originally, indeed, the mate's receipt was given only as a provisional bill of lading, intended to be given up upon receiving one more complete, but by mutual consent the practice has been dropped, and the mate's receipt acted upon as far as delivery of the goods were concerned, which was all that the Chinamen cared for.  But how doers it appear that the Chinamen were cognizant of the clauses contained in the discarded bill of lading, by which the shipowner previously guarded himself against responsibility for perils of the sea and other risks?  The defendants say that they were always ready to give bills of lading to those who chose to apply and produced the mate's receipt, and three such cases are stated to have occurred with goods shipped by the "Lismore."  But it does not appear that the defendants notified in any way that they carried only upon the terms contained in their ordinary bills of lading and they do not allege that they notified the plaintiffs in this case.  The only ground then upon which they could pout their case would be that a custom had grown up of accepting the mate's receipt as equivalent to a bill of lading in all its parts - as well as those which are directed to the limitation of the shipowner's liability as those which are for the benefit of the shipper; that this was so perfectly understood that every shipper in Foochow, whether foreign or Chinese, must be considered to have had notice of it and to be bound by it.  But I doubt whether this would be alone sufficient to fix upon a perfectly ignorant and innocent shipper a knowledge of the terms upon which the defendants claim to carry goods for the public, those terms being in contravention of the assumption of law.

   But although the defendants have failed to produce evidence clearly fixing the plaintiff's knowledge of the conditions under which they professed to carry, the evidence of the plaintiffs themselves throws some light upon the matter.  Mow-yue-tsung, a partner on the Fock-kee hong and one of the plaintiffs, ventured to assert "Jardine's vessels have a different rule from others in taking goods; they insure them."  This admits knowledge of a general rule that shipowners do not insure the goods they carry, and unless we accept this statement as a veracious one, unless we believe that the plaintiff is stating what he really believed, and that he really had a good reason for thinking that Messrs. Jardine, Matheson & Co. carried on business differently from other people in this respect, the inference to be drawn from his words would be precisely the opposite of what he intended.  Another member of the Fock-kee hong residing at Foochow, made the statement that the Chinese would not formerly ship goods in Jardine's vessels, and so the firm sent out to say that they would guarantee goods shipped by them, and that they said that the receipt given was a proof that the goods were taken on those terms, and that they refused to give bills of lading.  This witness further went on to say that notwithstanding this he went to Messrs. Jardine Matheson & Co., when the goods now in question were shipped, and asked for a bill of lading, but was told it was unnecessary.

   The defendants' witnesses do not specifically contradict this assertion of their having sent out a notice that they were ready to guarantee goods, but their evidence explained the fact of the Chinese not usually accepting bills of lading in quite another way.  They also contradict the fact that the witness applied in this case for a bill of lading, as Mr. Paterson stated that only three instances of such application had occurred, in all of which the applicants got what they asked for.  Moreover the latter statement of the witness is transparently inconsistent with the former.  If long ago Jardine, Matheson b& Co. had sent out such a notice as he describes, it it not likely that on this occasion he would have asked for a bill of lading.  I consider therefore, this witness as wholly unworthy of belief, and that the whole of the statement is a fiction, and if so he must have known very well that Jardine, Matheson Co. did not profess to do business differently from other people; and in other words, he shipped the goods with the understanding that they did not insure them.

   I think, then, that these witnesses spoiled their case by trying to make too good a one; I think they have brought home to themselves the knowledge of the conditions upon which Messrs. Jardine, Matheson & Co. undertook to carry, and, dealing with their evidence as I doubt not a jury would have dealt with it, I consider that they have made out the defendants'' case, and the verdict will be accordingly.

   His Lordship said he has just one word to add to his judgment, with regard to costs.  A rule had been made by the Chief Judge, on a former occasion, that the Chinese would not be obliged to give security for costs.

   Mr. RENNIE observed that in this case security had been given.

   Mr. HARWOOD said it had been given only in so far as that he had, when filing the petition, become answerable for such Court costs as his Lordship might adjudge.

   His Lordship said the Court costs must of course be paid.  It was the other costs in the action to which he referred, and from which, under the treaty, the Chinese might be relieved.

   Mr. RENNIE believed that certain points had been raised since the Chief Judge had so ruled, which altered the case very much.  The question was an elaborate one, and he did not feel prepared to argue upon it, but if his Lordship would reserve the point he would be very glad to address a few remarks to the court on the subject.  Since the decision of the Chief Judge, the question had been raised in a way in which it had not appeared before him.

   His Lordship said he would hear the point if raised upon a future occasion, but in the present instance felt disposed to use his discretion in not giving costs. In answer to a further remark by Mr. Rennie, His Lordship said he did not intend in doing so to establish a precedent. [See also 15 March 1871.]

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