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Colonial Cases

Beato v. P & O Co., 1875-1877


Beato v. P. & O. Company

Consular Court, Yokohama
Source: The North China Herald, 4 September 1875

Shanghai, Sept. 3rd.
FELICE BEATo (Defendant and Appellant);
JAMES DAVISON (Plaintiff and respondent)
On Appeal front H.B.M. Court at Kanagawa.
  The parties to this suit are merchants, at Yokohama, who sued each other by cross-actions.  In the one, Beato claimed from Davison $5, 459.85; and in the other Davison claimed from Beato, $9,055.05.  The actions were consolidated, and the jury found a balance to be due to Davison of $8, 203.65.  This finding was the subject of appeal.
  Today was read in the Supreme Court, as follows, Sir Edmund Hornby's
  It has seldom been my duty to read or listen to an argument of a professional man in which was displayed such an entire absence of professional feeling as disclosed in the argument of the appellant's counsel in the appal I am now considering; and at one time I determined to send the appeal back, and refuse to consider it until ample apology had been made for the tone and style in which the argument was conceived.  It is never to the credit of counsel to forget that they are members of an honourable profession, from which the judges of the land ate chosen, and to endeavour to lower the credit of the bench by personal attack upon those who preside over it. And it argues very badly for both the knowledge and feeling of a professional man when, irritated at losing a case, he attributes his loss or his mischance to the partiality of the judge.
  The present argument is full of the grossest charges and innuendoes against the learned judge who presided at the trial.  At p. 5, for example, it is said, "The respondent with the aid of the learned judge won his cased against the bank by swearing, &c."  Now to charge a judge with assisting one party in a case to win it, is about as gross a charge as could well be made against any one, because it impeaches the impartiality of the judge, and insinuates that, except for the assistance of the budge, the party assisted would have lost his case.
  Then, again, with reference to the charge that the judge refused a special jury, it implies first, that under the procedure of the Court it was competent to summon a special jury; when if the counsel for the appellant knows anything of the procedure of the Court, he must be aware that there is no machinery for summoning a special jury.  And it implies in the second place, that the judge purposely refused a special jury in order to favour one party - an inference supported in another portion of the argument,  where it is stated that if the application for a special jury had not been refused, the result might have been different.    Again, it is stated that "the Judge improperly prejudiced the jury against this appellant by ruling, &c."  The inference from such a statement is too obvious to need comment.  These are some only - perhaps the most flagrant - of the instances of the misconduct of the appellant's counsel in this respect.
  I do not care to enter more fully into the details of a line of conduct which I hope is - and which in my experience of 27 years is - unprecedented among professional men; and it is only our of regard for the interests of the parties, and to save them any addition to the enormous expense which they have been unnecessarily put to in the settlement of a very simple question, that I do not send the case back, in order that the offensive portion of the appellant's argument be expunged and apologised for.
  On the merits of the case itself, I am inclined to think that, with regard to one item, the jury were wrong in finding  for the defendant.  It is clear to my mind that it was in consequence of the action brought by Mr. Davison against the bank, that the bank found themselves constrained to insist on the balance of the goods remaining in his hands being returned to them.  It was not, therefore, the appellant who withdrew them, but the withdrawal was the necessary consequence of Mr. Davison's own action against the bank, and he cannot therefore recover as against the appellant any commission in respect of such goods.  The verdict t, therefore, must be reduced by the sum of $4,  393.75
  There will be no costs of the appeal.

Source: The China Mail, 1 November 1877


In delivering a judgment in the British Consular Court at Yokohama recently, upon a claim by a consignee for damage done to his goods in transit from London to Yokohama, the Judge said the defendant had no doubt shown a proper feeling in not attempting to rely on the clause of a bill of lading exempting the defendant from damage occurring through the negligence of his servants, the case differing in this respect from, Beato v. P. & O. Company heard some time ago.  As we referred to this judgment and these particular remarks of the Judge at the time it is only fair to note that the Agent of the P. & O. Company at Yokohama had written to one of thr local papers denying that such a defence was offered on behalf of the Company.  He says:

"Your remarks are pretty conclusive that you do not allude to the case of Beato versus the Peninsular and Oriental Steam Navigation Company, as on reference to the report you will find that no such defence was ever set up, not is there any reason to suppose that the Company ever intended to take their stand on that clause."

The Mail, however, in commenting on this denial, says:

It is certainly a fact that such defence was relied upon by the Company's Counsel in the case of 'Beato versus the P. & O. Company,' as appeared in the answer to the petition, and the answer to the appeal, and was impliedly recognised by the Acting Law Secretary when giving judgment in that case, and again when referring to it during the course of the recent case of 'Beato versus the Master of the S.S. Atholl.'"

According to the reports in the Yokohama papers, the following were the main facts of the case of "Beato versus the P. & O. Company." Mr. Beato had sued the P. & O. Company for $1,024 damages on account of the state in which an invoice of goods shipping in one of the Company's steamers had been delivered to him.  The goods were leather bags in tin cases, which, when delivered, were found badly mildewed, and the cases to contain water.  There was the usual bill of lading to prove that the goods were shipped in good order in London; these goods were proved to have been delivered in b ad condition, and the water in the cases had been duly tested and analysed by a professional chemist, who swore that it was fresh water.

The Judge extracted from the jury an opinion that the water had got access to the goods through the negligence of the Company's servants, and, as a clause in the bill of lading exempted the Company from responsibility for damage caused through servants' negligence, he gave, as the law of the case, that a verdict be entered for the defendants.

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