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Colonial Cases

Murray v. Snowden, 1875

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Murray v. Snowden

Civil Summary Court, Shanghai
2 April 1875
Source: The North China Herald, 8 April 1875

 

LAW REPORTS

CIVIL SUMMARY COURT

Shanghai, April 2nd.

Before R.A. Mowat, Esq.

GEORGE MURRAY v. JOHN SNOWDEN.

   Plaintiff is captain of the steam tug Rocket, and he sued the defendant, a pilot, to recover $99, for services rendered to the steamer Glenfinlas, at his request, in August, 1874.

   Plaintiff said - I am Captain of the steam tug Rocket. I claim $99, for services rendered to the steamer Glenfinlas about the 25th of August.  The services were towing her off the mud at the Woosung Bar.  The Rocket was under my charge then.  I was engaged by the pilot on board the steamer, with, as I supposed, the sanction of the captain.  The Captain was not on board then.  I refused to take hold of her until the very last of the floor tide, in order that the Captain might be on board.  He came while the vessel was coming off.  I had made fast to her before he came.  He got on board while she was coming off.  I at first refused to take hold of her, because the terms the pilot offered, which he stated were offered by the Captain's direction, were Tls. 50 if she did not come off, and Tls. 100 if she did.  Out usual charge is Tls. 100 per tide or part of a tide.  I accepted the pilot's offer at the last, rather than come back without doing anything.  An action was brought in this Court on the 14th September last.  I failed in that action on the ground that the Captain had distinctly declined the tug's services, and that a telegram had been sent from him saying that the tug was not wanted.  Under those circumstances, I now sue the pilot.  At that time I expected the captain to pay the charge, but as it stands now, I look for payment from the pilot.

   I took some cargo-boats down to the steamer to lighten her.  The pilot asked me if I had seen the Captain, as he had an engagement for me to tow her off.  I said I had not seen the Captain.  The came aboard the tug, and we went to the telegraph office and I telegraphed the Captain, asking whether he would engage me at Tls. 100 a tide.  I received an answer from Messrs. Gilman & Co., the agents: "Captain Wilcox has gone down the river; cannot engage a tug-boat."  Upon this I told the pilot that if the Captain did not come down at the very last of the flood, I would take his offer.  If he did c me, I would not accept it.  I should, in that case, have gone to the Captain and asked him if he would engage the tug at Tls. 100 a tide, whether the steamer was got off or not.  The pilot gave me a memorandum that the captain has authorised him to engage a tug-boat at the terms he had mentioned.

   Captain WILCOX, sworn, stated - I was the master of the Glenfinlas on the occasion named.  She got ashore abreast of the bar, on a Thursday.  I came up to Shanghai on the Monday morning.  I left the pilot, Snowden, and the chief officer in charge.  I gave no instructions to the pilot to engage a tugboat.  I said nothing to him about it that morning.  I told him I should be on board before high water that night, but if I was not there, he was to back the engines and try to get her off.  The ship was then lightened 400 or 500 tons, and I knew the tide would be higher on the Monday night.  I had gone up to Shanghai to ask about the future employment of the ship.  I got down to the ship a few minutes past nine and found the ship fast to the tug.  I asked who engaged her, and the chief officer said the pilot had done it on his own responsibility.  I asked the pilot why he had engaged the tug, and he said he did not think the ship would come off without.  The tug remained fast to her about a quarter of an hour after I was on board, keeping the ship in her place.  There were two kedge anchors out astern, and there was difficulty in getting them up, as the ship might have gone ashore again.  I could not order the tug to cast off, because the ship was afloat, and was, in consequence, under the pilot's charge.  It is not true that I told the pilot to engage a tug on the terms stated.  The anchors, when I got on board, were not holding - they were just touching the ground, up and down, and we had nothing to hold on to except the tug.  Her engines were moving ahead to keep the ship in position, and to prevent her drifting up the river.   The pilot said to me on Sunday - why did I not make a bargain with the Captain of the tug to pay him Tls. 100 if she got off, and nothing if she did not.  The Captain of the tug had asked me several times to engage him, but I told him that I did not want him.  I received the telegram from the captain of the tug as I was starting to return to Woosung, and told the agents to reply that a tug was not wanted.  The ship was so much lightened, that I knew she would come off that night on the higher tide.

   His HONOUR said the evidence given confirmed him in the view he took of the case heard in September last, when the plaintiff was unfortunately not present.  He did not see how the Captain could be made responsible, as he told the plaintiff his services were not required.  The Captain went up to town, and saw the telegram sent by the plaintiff, and instructed the agents to telegraph back that the tug was not wanted, and he had repeated that statement now in Court.  The only reason why plaintiff had taken the pilot's offer appeared to be that he felt he had better take the chance of the pilot's authority, rather than lose a tide.

   Plaintiff produced a written guarantee he had received from the pilot, saying he thought it was quite sufficient to show the engagement of the tug.  The Captain had also acknowledged his indebtedness to him (plaintiff) personally on two or three occasions, and said the money would be all right, and that he would leave it with the agents, or something to that effect.

   Captain WILCOX again repeated that he never authorised the pilot to engage a tug.  The ship's money was not his own, and he could not pay such a charge without sanction.  What he told the plaintiff was that the agents of the ship, Messrs. Gilman U& Co., had written on the subject, to Messrs. Macgregor, Gow and Co., the owners, in London, and if they sanctioned this payment, the agents would pay it.  He (the captain) acknowledged that services were rendered by the tug to the steamer, but he contended that they were unauthorised, and that the plaintiff forced his services on the ship.

   His HONOUR asked if the owners had answered Messrs. Gilman & Co.'s letter?

   Captain WILCOX replied that he did not know.  The ship was consigned this voyage to Messrs. Jardine, Matheson & Co., and he had no business transactions with Messrs. Gilman & Co.  He had, however, enquired if an answer had been received, but could not ascertain.

   His HONOUR said the case as against the Captain must fail, the pilot having engaged the tug against the captain's instructions.

   Plaintiff - But there is the pilot's guarantee.  Suppose I had come upon the Captain for salvage - for Tls. 3,000 or Tls. 4,000?

   His HONOUR - Could the streamer have been got off in the first place without the assistance of a tug? and could she have been prevented going ashore again without such assistance?

   Captain WILCOX was not prepared to say; but he knew she would come off, under her own steam, with the higher tide of the Monday night, and through being lightened.  That was the reason he permitted her to remain on the mud so long.  The plaintiff several times asked to be engaged, but his services were always declined.  The ship's bows only were on the mud - her stern was afloat.

   His HONOUR, addressing the plaintiff, said that, as the defendant was not present, the case must be adjourned for his attendance.  He thought, however, it was a case in which the steamer ought to pay, as it was she was she who had benefited by the tug's services.

   Captain WILCOX said it would be hard to make the steamer pay for services that were forced upon her.

   His HONOUR - If the services were not required, what induced the pilot to engage the tugboat?  I cannot decide this case now, but must hear what the pilot has to say in the matter.  The plaintiff will let the Court know when the pilot can attend.

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