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Colonial Cases

The Junk Hsing Her Shang v. The American Schooner William Phillips, 1876

[shipping collision]

The Junk Hsing Her Shang v. The American Schooner William Phillips

United States Consular Court, Newchwang
Bandinel, November 1876
Source: The North China Herald, 21 December 1876

 

U.S. CONSULAR COURT.

Newchwang, November.

Before F. BANDINEL, U.S. Vice-Consul.

S. A. LORD, C. H. PULSIPHER, Associates.

THE OWNERS OF THE JUNK HSING-HER-SHANG v. THE AM. SCHOONER WILLIAM PHILLIPS.

   This was a claim for damages through collision.  The following is the text of the judgment:-

Judgment.

   The plaintiffs, by their representative Wu Kun, claim the sum of Newchwang Taels Four Thousand, 1,000 being value of the cargo and Tls. 2,400 value of their junk, the loss of which they attribute entirely to the want of care on the part of the defendants, who ran into and sank their vessel while at anchor thereby placing their lives in jeopardy, and, as above mentioned, depriving them of both goods and vessel.

   On the other hand the defendants, by their representative Captain Healy, oppose this claim on the following grounds: - That the junk was anchored in an improper place, that plaintiffs might have avoided the collision but made no effort to do so, and that the defendants made every effort to avoid the collision.

   Captain Healy further contends that even after the collision the plaintiffs might very easily have saved their vessel with the greater part of their cargo by cutting the hawser and either drifting or sailing ashore, and if found in fault as to the collision would evidently consider himself liable only for such damage as might have been sustained supposing the junk men to have taken these and or such other steps as might be proper under the circumstances.

   Captain Healy further brings evidence by which he seeks to prove that most of the damage sustained by the junk, as she now lies up river, is due to causes wholly irrespective of the collision, and, further, that the value set by the junk men on their vessel is excessive.

   After a careful hearing and consideration of all the evidence forthcoming on both sides of the case, the Court concludes:-

  1. That the junk was anchored in the fairway.  This is proved by the unanimous testimony of all the witnesses.
  2. That a proper look-out was not kept by the plaintiffs.  This appears from the evidence of the junk men, all of whom were below, forward at meals, except the Captain whose watch appears to have been of a most desultory character, in fact he admits that he had been lying down below, and only came up just before the collision.
  3. That the plaintiffs by sheering her with her helm might in the then state of the wind and tide have avoided the collision.  This appears from the evidence of the captain and Mate of the Rebecca.
  4. That the plaintiffs made no attempt to avoid the collision.  This is unanimously admitted by all the witnesses, Chinese and Foreign.
  5. That the defendants took every means to avoid the collision.  This is asserted by Captain Healy, his mates and a sailor, partly corroborated by the evidence of Mr. Blachford, and not controverted by the plaintiff or his witnesses.

   Now according to Foreign Law, which, as this is a Foreign Court, must govern the decision just as much as if the plaintiffs were Foreigners:-

  1. "If a vessel anchors in an improper place as in the thoroughfare pass of a river, her owner must abide the consequences of a collision unless other circumstances alter the equity of the case; if she anchors there from necessity she ought not to remain there longer than the necessity continues, if she does and a collision takes place with a vessel entering the harbour. She will be considered in fault."

   It has been shewn above that the junk was anchored in an improper place, viz., the fairway, and the question now arises as to the necessity of her doing so.  This, however, is at once disposed of by the statement of the captain that there was no special reason for choosing that anchoring ground, and that he could, like the other junks, have anchored further to the east, and, therefore, in shallower water.

   It appears then that the junk was anchored in an improper place and without necessity; still had she kept a proper look-out and sheered the vessel with her helm to avoid a collision it would greatly alter the aspect of the case, for (to continue the previous quotation:-

  1. "It is the duty of every vessel seeing another at anchor, whether in a proper or improper place, and whether properly or improperly anchored, to avoid if practicable and consistent with her own safety, any collision."

In point of fact, however, she kept no proper look-out, and took no measures to avoid a collision.

   It appears further that the rule is:-

  1. "That the plaintiff cannot recover if his ship were in any degree in fault in not endeavouring to prevent the collision."

   On a careful review of all these points, the Court gives judgment against the plaintiffs on the grounds of improper anchorage, insufficient look-out, and absence of endeavour to prevent the collision.  Costs follow the judgment:-

 

Consul's Fees

$15.00

Associates' Fees

$18.00

Subpoenas

$3.00

Marshal's Fees

$9.00

Interpreter's Fees

$9.00

Witnesses' Fees

$16.50

 

 

 

$70.50

 

 

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