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Colonial Cases

The Brig Matilda, 1871

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The Brig Matilda

Consular Court, Chefoo
October 1871
Source: The North-China Herald, 25 October 1871

 

H.M. CONSULAR COURT.

Chefoo, Oct.

Re British Brig Matilda.

   In Her Britannic Majesty's Court at Chefoo, between James Wilson, plaintiff, as owner and acting for the underwriters on the hull of the British brig Matilda, and William Collins, late chief officer of  said vessel, defendant.

   The petition of the above named James Wilson, plaintiff, shows as follows:-

   That the defendant, through neglect of duty has caused the wreck of the brig Matilda, by which the plaintiff has suffered loss to the extent of $6,000, being the value of the said brig, less about $2,200, being the proceeds of sale of wreck - say $3,800.

   The plaintiff therefore prays that the defendant be adjudged to pay over to the plaintiff the sum of $467, belonging to defendant, and presently attached by a judgment odf this Court.

   The answer of William Collins, defendant, states:-

1st. - That the loss of the brig Matilda was in no case attributable to negligence in my part, as alleged by plaintiff.

2nd. - That for any losses occasioned to the plaintiff as owner of the Matilda by negligence, the Master of the said vessel, is the person to be held liable, and no action can be against myself on this ground.

3rd. - That the plaintiff is not empowered to take action on behalf of the underwriters of the said vessel, as stated in his petition.

4th. - That by the attachment of funds deposited by me in plaintiff's hands, and by plaintiff's refusal to pay to me the amount of wages to which I am entitled, I have been put to inconvenience and expense.  I have, moreover, been prevented by the bringing of this suit from resuming my lawful calling.

   For the expenses thus entailed upon me, I hold plaintiff responsible.

   I therefore pray that judgment may be recorded in my favour, with costs against plaintiff.

JUDGMENT.

The Court, after reviewing the evidence adduced before it, and giving full weight to the references to statute law and legal commentaries quoted by plaintiff, is of opinion that no grounds exist for action against defendant as mate of the late British brigMatilda on account of damages for the loss of the said vessel, the Master being the person who, in the eye of the law, is personally responsible for any injury or loss to the ship or cargo by reason of negligence or misconduct (see Abbott on the Law of Merchant Ships and Seamen, chap. iv, sec. I.)

   The Court finds in addition, that the evidence does not bear out the allegation that the loss of the Matilda was attributable to negligence on defendant's part.  That he was guilty of a dereliction of duty is proved by the minutes of the Naval Court, which have been produced in evidence, and for this offence he appears to have been received punishment, but from this circumstance to the assumption that the vessel was lost owing to negligence chargeable to defendant finds no foundation in the fact of the defendant's having gone on shore from his vessel at a time when he was left without a duly constituted authority to control his movements.  The Court  does not consider that the defendant, in the cross action raised in No. 4 of his answer, has made out his claim against plaintiff for reimbursement of the expenses entailed upon him by the institution of this action.

   Judgment is recorded in favour of defendant.

   Plaintiff will pay the costs of this suit.

(Sig.) W. F. MAYERS, Act. Consul.

H. S. HOBSON, W. S. WADMAN, Assessors.

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