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Colonial Cases

Jardine, Matheson and Co. v. Jones, 1876


Jardine, Matheson & Co. v. Jones

Consular Court, Yokohama
Source: The China Mail, 30 June 1876


JARDINE, MATHESON & Co. v. JONES.  (Yokohama, 1876)


A case has been recently heard in the British Consular Court at Yokohama, possessing features of special interest to shipping agents and others.  It was an action brought against Captain Jones, of the steamship Oxfordshire, by Messrs. Jardine, Matheson & Co. to recover the sum of $2,500, which they claimed as their commission on a charter that they alleged had been obtained by them, for the defendant, Messrs. Smith, Baker & Co., the charter being for the conveyance of a cargo of tea from, Yokohama to New York.  Defendant denied that the charter was obtained through plaintiffs' agency, or that they were entitled to the commission.

The facts of the case, as they came out in evidence, may be briefly stated.  The Oxfordshire had come out from England, consigned to the plaintiffs, with cargo both for this port and Yokohama.  She had gone to Japan and had returned from there to Hong-kong with a cargo of coals, which had been procured for it by the plaintiffs.  While at this port the defendant wrote to the plaintiffs at Yokohama, making use of the words in his letter, "I hope that on my arrival in Yokohama you will be able to offer me a freight for New York." Upon the receipt of this letter the plaintiffs sent round their clerk to the various houses to procure freight, the firm of Messrs. Smith, Baker & Co., being visited amiong others.  This form said they preferred to give anything they had to a vessel which would be under their own control, but they would like, themselves, to see the Captain before giving as definite answer.

At the time of the defendant's arrival it was pretty plainly intimated to him by the plaintiffs that they could not procure a cargo to New York without considerable delay, unless Messrs. Smith, Baker & Co. gave theirs, which did not appear to be very probable.  So far as we can gather from the evidence it does not appear that after the defendant's arrival at Yokohama, the plaintiffs had any communication with Messrs. Smith, Baker & Co. in reference to a cargo for defendant.  The plaintiffs, however, on the Thursday following the Monday on which the defendant arrived, suggested that he should go round with them to Messrs. Smith & Co. with a view to ascertain what could be done for a charter to New York, whereupon the defendant said he had just come from that firm; that he thought they would charter him at £4.10. He told them that in common politeness he must first see Messrs. Jardine, Matheson & Co. before accepting it, to ascertain if they had anything to offer him.  He saw the plaintiffs, and as they had no offer to make him he accepted that of Messrs. Smith, Baker & Co.

These appear to be the broad facts of the case.  One thing is pretty clear that the cargo was not actually obtained through the plaintiffs' agency; on the other hand the defendant obviously obtained it from Messrs. Smith, Baker & Co. himself.  Nor did the plaintiffs even introduce him to that firm.  The defendant had carried half a cargo of tea to New York for them the previous year, and he had also called upon them on his first arrival in Yokohama on the 29th of March last.  All the plaintiffs appear to have done towards getting a cargo from Messrs. Smith, Baker and Co.  for defendant was to send round a clerk, to their house before his arrival, and this clerk was plainly told by Messrs. Smith, Baker & Co., according to his own evidence, that they preferred giving anything they had to a vessel under their own control, and not under that of Messrs. Jardine, Matheson &Co.

The only question, then, that remains is whether plaintiffs had the ship in their hands at the time, and, in that case, could claim commission on any cargoes she received, whether actually obtained through their agency or not.  Plaintiffs advanced three chief facts to prove that they had absolute possession of the ship at the time.  The first was the letter written by the Captain from Hongkong, in which the passage occurred "I hope on my arrival in Yokohama you will be able to offer me a freight to New York."  The second was a latter from the owners to the plaintiffs. This letter was described by the plaintiffs'' advocate as "written in the ordinary form of commercial letters, requesting the services of Messrs. Jardine, Matheson & Co." but defendant described it as a letter in which "the plaintiffs were asked by thr owners to obtain employment for my ship subject to my control."  We have no copy of the letter, so cannot offer an opinion as to its purport.  The third point on which the plaintiffs relied was that "agents for a ship inwards usually have to obtain outward cargo." The plaintiffs also put in a telegram in support of their case which had been sent from their firm in Hongkong to that in Yokohama at defendant's request, asking to be informed if there was anything offering.  Defendant contended that in neither of the two letters not in any communication from him had the ship been placed in the hands of the plaintiffs to the exclusion of other brokers, and he also added in cross-examination, that plaintiffs had failed to procure him a charter.

Acting-Consul Wilkinson, however, before whom the case was heard, held without hesitation that the ship was in plaintiffs'' hands, and that defendant must pay £450, which would be five per cent. on  £9,000, the amount he would receive on the charter.

The judgment, although no doubt, in accordance with the law, does seem rather hard on the unfortunate Captain, considering that neither he nor the owners of the ship appear to have formally placed the ship under the control of the plaintiffs.  There is not doubt, in our mind, that defendant was permitted by the owners of the Oxfordshire to exercise his discretion to an exceptional extent as to the disposal of his vessel, and plaintiffs almost seem to admit by their evidence that it was to him they looked for placing the vessel in their hands and not to the owners. If this were the case, the letter and telegram from defendant was certainly a rather vague authorisation of them to take charge of the vessel.

From what we can gather from the facts of the case as reported in the Yokohama papers it seems, upon the judgment, that the mere expression of a hope to brokers that they will be able to find a cargo for a vessel, or an enquiry if they can do so, effectually places a ship in their hands, under certain circumstances, the Captain or owners being debarred from going to any other brokers in regard to it.  Surely something more formal than this should be required for handing over the entire control of a ship to agents.  The verdict also bears on the Captain specially hard because he was obviously only doing his best for his employers when he laid himself open to this action.

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