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Colonial Cases

Hume v. Gilman, 1877

[shipping, pilot services]

Hume v. Gilman

United States Consular Court, China
Bradford, 7 May 1877
Source: The North China Herald, 12 May 1877

 

U.S. CONSULATE-GENERAL.

Shanghai, May 7th.

Before O. B. BRADFORD, Esq., Acting Consul-General.

JOHN W. HUME v. S. J. GILMAN.

   Plaintiff is a Licensed Pilot, and he sought to recover from the defendant, who is the Captain of the American barque Katie Flickinger, the sum of Tls. 80 for piloting the vessel into port, together with compensation for detention at the rate of Tls. 10 per day.

   The COURT, before reading the pleadings, said the parties were at liberty to privately settle the case before it came judicially before him.

   Defendant offered to pay the plaintiff Tls. 40, before the action was entered.

   Plaintiff refused to accept the offer, and commenced suit.

   On the Court opening, defendant said he was not fighting the case for the sake of Tls. 80, but simply because he did not think the plaintiff was entitled to the money.  He was now willing to settle the matter by giving the Tls. 80 to the Temperance Society in their joint names.

   Plaintiff declined this offer also.  He had brought the case forward to test the authority of the Harbour-Master, and if the Harbour-Master's decision had not been in his favour, he should never have brought the case into Court.

   The COURT then read the pleadings.

   Plaintiff in his petition set forth that on or about the 25th of February last, he was engaged by the defendant, on the pilotage ground at the mouth of the Yangtsze, to pilot the Katie Flickinger to Shanghai.  He assumed charge of the vessel and proceeded towards his destination. The ship grounded on the Blockhouse spit by reason of the mate giving him the wrong bearings of the buoy.  He had been told by the defendant that the person who gave him the bearings was the mate of the vessel, and plaintiff inferred that such a person was competent to give bearings of buoys and landmarks.  After being on shore some twenty-six hours, the vessel was got off the spit with the assistance of a tug-boat, and plaintiff brought the vessel forward to Shanghai.  He demanded payment of the pilotage, in the sum of Tls. 80, but defendant refused to pay him until the Harbour-Master decided whether it was payable or not.  The Harbour-Master addressed a letter to the defendant, dated about the 10th of March, 1877, directing him to make the payment of the pilotage claim, but this he (the defendant) refused to do without he was directed by the Consul-General.  Plaintiff now sought to recover the Tls. 80 together with Tls. 10 per day as compensation for detention, from the date of the Harbour-Master's letter, about the 10th of March, until the date of the payment of the pilotage.

   Defendant, in the course of his answer to the petition, set forth that he told the plaintiff the mate of the vessel was totally unreliable, and was incompetent to take bearings or give a correct report of the direction of the wind; and at the same time he warned the plaintiff not to trust to the mate for anything.  Plaintiff deliberately disobeyed such warnings, and in consequence of such disobedience and carelessness he got the vessel ashore on a spit which he (plaintiff) informed the defendant a few minutes before was a current; a further consequence was a serious delay, extra expense, and great danger of the vessel's total loss.  In view of these facts and other procurable proofs, defendant did not consider the pilotage was due to the plaintiff, and consequently he also ignored the claim of Tls. 10 a day for detention, as being against reason and justice.   He denied that the Harbour-Master addressed to him a letter requesting him to pay the pilotage, and on the other hand pointed out that the Harbour-Master had told him that he reprimanded the plaintiff for certain actions in the matter of getting the vessel ashore, and that the Harbour-Master supplemented such statement by the remark that he would not entrust to the plaintiff a vessel of his own as his eyesight was defective. Pending a hearing of the case, and without prejudice to his denial of all responsibility under the claim, and being under charter and about ton proceed to sea, defendant paid into Court the sum of Tls. 80.  He asked for the petition to be dismissed, and the plaintiff adjudged to pay the costs of the action.

   Plaintiff said he had now no statement to make but would call his witnesses.

   The COURT told him it would have been better if he had engaged a professional man to conduct his case; they must adhere to the usual forms as much as possible.

    Plaintiff repeated that he had no statement to make, and said he would call his witnesses.  The Harbour-Master had decided the matter in his favour, and he did not know what else was wanted.

   JOHN ROBERTS said he was a British subject, and at present in the service of the Imperial Customs.  About the 26th of February last, he was in charge of the tug-boat Rocket, outside Woosung, when he saw the Katie Flickinger go ashore, on the block-house spit.  He at once proceeded ton her, and the captain inquired what he would charge to tow her off; he told him.  The Captain said it was too much, and other vessels being in sight he steamed away.  The next day he returned to the Katie Flickinger, and was engaged by the Captain to render assistance.  The vessel was rowed off and brought up to Shanghai.  It was between six and nine o'clock in the evening when she came off the spit, and it would be about one o'clock in the morning when they anchored at Shanghai.  Plaintiff was in charge of the vessel.

   The COURT said witness had touched on nothing that was in the petition.

   By the Defendant - he could not say whether the plaintiff was capable of bringing a vessel into port or not; he should decline to answer such a question.  He could not say he had heard remarks to the effect that the plaintiff was incapable of piloting a vessel because his eyesight was bad.  He would not say he had no heard such remarks.  He did not want to say one thing on the other.  When the vessel was off the  spit and they were about to start for Shanghai, he did not remember called the plaintiff a --------------- fool, and telling him he was going to run her on the spit again.  He would not like to say whether the plaintiff was a competent pilot in his opinion.

   Plaintiff protested against this line of cross-examination, and said the Harbour-Master was the person to test his competence.  Besides, if the defendant thought he was incompetent, how was it that he allowed him to being the vessel to Shanghai and then two or three days after to take her to the Tung-ka-doo Dock.

   The COURT decided that the questions were admissible.

   Witness, in answer to further questions by the defendant, said he was on deck with the plaintiff during the greater part of the passage to Shanghai, but he did not navigate the vessel.

   Captain McCASLIN said he was engaged by the plaintiff and the defendant to tow the Katie Flickinger from below the shipping to Tong-ka-doo.  Plaintiff took charge of the vessel.  The captain was ashore.

   By the Defendant - he had known the plaintiff since 1859, and had never heard that he was incapable to being a vessel to Shanghai.  He had never heard his ability questioned in the least.  He may have said plaintiff was incapable because he often said a many things he did not mean; nut he would not take an oath on it one way or the other.  He had not heard that plaintiff ran a gunboat ashore a short time ago.

   Defendant said the reason he asked these questions was because he had been told by hundreds that the defendant was incapable as a pilot owing to defective sight, and he was sorry to say Captain McCaslin was among the number who had told him these things.

   Wiriness said if he had said plaintiff was incompetent it was in joking; he did not wish to be hauled up for defamation of character.

   Plaintiff said he could defend his character against such statements if he liked, but he did not choose to do so.  The Court had no jurisdiction over him; the Harbour-Master had decided the case in his favour and that was sufficient.

   In answer to the Court plaintiff said he had nothing to show that the decision of the Harbour-Master was in his favour.

   The COURT said he had seen the Harbour-Master, who casually told him he had paid some attention to a charge brought against the plaintiff for being drunk, and that he found he was not drunk; the matter now was, did the vessel get ashore by the fault of the petitioner.

   Plaintiff repeated that the decision of the Harbour-Master was in his favour.  He had no other witnesses to call.

   Defendant was then sworn, and said he was the master of the Katie Flickinger.  On Sunday the 285th of February, plaintiff came on board when the vessel was near Gutzlaff Island.  Plaintiff took her to the lightship and then anchored, telling the mate to call him at 5 o'clock the following morning.  The mate called him at that time and plaintiff asked him the direction of the wind.  The mate said N.E. He (witness) told the plaintiff that the mate would not tell whether the wind was N.E. or S.W., that he was not fit to be a mate., and that he did not wish him to trust to him for anything, adding that if he wanted to know the way of the wind he had better get up to see for himself.  Plaintiff did not turn out then, but told the mate to call him at 5.30.  The mate did so, and this time told him the wind was W.N.W.  He told plaintiff again not to trust the mate for anything; he was totally incompetent.  Plaintiff turned out at six o'clock, and then complained that somebody had stolen his whiskey.  The vessel was got underweight shortly afterwards.  He could not say what time she went ashore.  A few minutes before, he heard one of the sailors call out that there was a bank ahead, and he jumped up and could see the bank quite plainly.  He asked the plaintiff what it was, and he said it as not a bank but the current.  The buoy and the beacon were in sight, and it was broad daylight.  A few minutes afterwards the the vessel was hard aground with only eight feet of water under her bows, and she was drawing fourteen and a half forward and sixteen aft.  He said to the plaintiff "You have done it now, I told you it was a bank, and you said it was the current."  Plaintiff replied that the mate had given him the wrong bearings.  He replied that he had no business to trust the mate, but should have taken notice of his warnings.  Immediately she grounded, plaintiff dropped an anchor at the bows, but refused to get another out to heave her off in case she floated.

   Witness then detailed all the steps that were taken to get the vessel off the spit, which was eventually managed with the assistance of the tug-boat Rocket; and went on to say that if he had known then what he did now, he should not have allowed the plaintiff to bring the vessel into port, and after such carelessness and disobedience of his warnings about the second-mate he had not the least idea that he would be asked to pay pilotage.  He denied that he engaged the plaintiff to take the vessel to Ting-ka-doo; the plaintiff engaged himself.  He made a charge of drunkenness against the plaintiff to the Harbour-Master. Subsequently the Harbour-Master told him that the charge would have to be dropped, but said that he had reprimanded the plaintiff for some of his actions in getting the vessel ashore.  The Harbour-Master also said that if he had a good ship going down the river, he would not allow the plaintiff to pilot it as he was partially blind.

    Witness then spoke of the negotiations he had had with Mr. Bennett, the Agent of the Independence Pilot Association, in reference to the payment of the plaintiff, and said the consul-general had told him he had never said he was to pay the pilotage.  It was his opinion that the plaintiff would not have managed to get the vessel to Shanghai without the assistance of Captain Roberts of the tug-boat, who piloted the vessel up.

   Plaintiff had no questions to ask the defendant.

   JOHN DAVIS, a seaman on board the Katie Flickinger, deposed that shortly before the vessel grounded, he was heaving the lead.  The plaintiff called him to tack ship, and he and the carpenter went forward.  They then saw a bank ahead, and called out to the plaintiff but received no answer.  They shouted loud enough for him to hear.  In about ten minutes the plaintiff gave the order "hard-a-lee," but the vessel was then hard and fast ashore.  Her bow was on the bank they had just seen.  No anchor was got out that day to heave her off in case she floated.  The vessel was got off the following day.  When starting for Shanghai plaintiff gave an order to Captain Roberts, and Captain Roberts replied "Where do you want to go to you old fool; do you want to stick her up again?"  Captain Roberts was on the poop with the pilot during the passage up to Shanghai, with the exception of perhaps five minutes.

   HENRY ELLIS and WILLIAM BACON, also seamen on board the vessel, gave similar testimony.

   Defendant was recalled and said it was his opinion the vessel grounded because the plaintiff could not see the buoy and beacon.  He could see them distinctly.  The wind was dead ahead, and it was flood tide.  When he pointed out the bank to the defendant, the vessel could have been turned in time to avoid it. N It was about two ships' lengths ahead.  His experience was that when a pilot ran a vessel ashore he did not ask for pilotage.  Since he had been in port he had discharged the mater for incompetency, and plaintiff was examined before the Consul-General to prove his incompetence.

   Plaintiff repeated that it was strange defendant should entrust him with the sole charge of the vessel to Tung-ka-doo, if he considered him incompetent.

   Mr. BENNETT, the Agent of the Independence Pilot Company, was then called by the plaintiff.  He said the defendant told him he would pay the pilotage if the Consul-General said he was to.  He had been Agent for the pilots for eleven years, and he had never known a case of this kind tried in a Consular Court before, when it had previously been before the Harbour-Master.

   The COURT understood that it was only the charge of drunkenness that had been before the Harbour-Master.

   Witness said his experience was that if the pilot continued in charge of a vessel after it had been ashore, the pilotage was always paid.  If defendant thought the plaintiff incompetent, it was very strange indeed that he should allow him to pilot his vessel to Tung-ka-doo - all through the junks; and the account for that service had been paid.

   By the Defendant - He had had trouble before in collecting the pilotage earned by the plaintiff, and he had also trouble with every other vessel so far as vessels getting ashore was concerned.

   Captain ROBERTS was recalled, and in answer to the plaintiff said he did not assist him to navigate the ship up the river.  If he did anything to lead the defendant to suppose he was assisting the plaintiff, it was done voluntarily and not at plaintiff's request.

   By the Defendant - He did not remember saying before they started from the spit that he could bring the vessel up but did not like to, as tin would not be considered right.  He heard him (defendant) say he had no confidence in the plaintiff.  He told him that if plaintiff brought the vessel to Shanghai, he believed the pilotage would have to be paid.

   Each party allowed the case to rest here, and the Court reserved its decision.

May 9th.

   To-day, in this action, the Vice-Consul-General, O. B. BRADFORD, Esq., delivered the following

Judgment.

The petition in this action was filed on the 21st March, 1877, by Mr. J. W. Hume, a licensed pilot for this port, against the Master of the American barque Katie Flickinger, for pilotage from sea to Shanghai.

   The answer was filed on the 23rd by Captain Gilman, his vessel being under charter, and on the eve of sailing.  Tales eighty were paid into Court - such payment however, not to prejudice the defence of the Master - and the vessel proceeded on her voyage.  On her return the petitioner applied for a hearing of the case.

   Upon his first application to the Court the petitioner was advised to employ counsel to prepare and conduct his case.  He declined to do this, and at the hearing both parties appeared without counsel.  On its opening, the Court conformably to Rule 10 of the Regulations, suggested a settlement without judicial action, but the proposal of the defendant to so end the case was firmly declined by the petitioner.  The statements of the witnesses for the prosecution touched upon what occurred after the vessel had been got on shore, and during her passage thence to her place of discharge, and bore little o no relation to the point at issue.  In his conduct of the case, the petitioner practically ignored his sworn petition; informed the Court that he had never sworn thereto, and that some statements made therein should not have been made.  Here he rested his case.

   The claim is for pilotage taels eighty, and Taels ten per day for detention on consequence of its non-payment.

   Captain Gilman refused payment on the ground that Hume ran his vessel on shore above the Kin Toan Beacon in broad daylight, and this simply for want of the exercise on his part of ordinary care, discretion, and skill as the pilot navigating her. He claims that Hume wilfully disregarded his warning that the mate of the vessel was incompetent to his duties, and could not give a correct bearing or indicate a true direction by compass, and that in spite of this warning Hume did trust to the mate;  asked him to give a bearing, and carelessly put the vessel on shore, where she was in great danger of becoming a total loss.

   A report of some kind is said to have been made to the Harbour Master, and passed upon by that officer.  In his petition the pilot states that a decision in his favour was given by the Harbour Master, and was communicated by a letter addressed to Captain Gilman on the 10th of March.  Captain Gilman, however, denies having received any such communication.  The pilot does not produce any copy thereof, or minute of the action taken by the Harbour Master, upon the inquiry claimed to have been made.  He says, however, in his petition that the vessel got on shore by reason of the mate giving to him a wrong bearing of the buoy.

   Captain Gilman testified that upon an occasion of his conversation with the Harbour Master, that officer told him that he had reprimanded pilot Hume for being at the wheel, and for taking bearings from another, when he should have taken them himself; and requested him to tell the Consul that Hume was "partially blind, and could not see well."  The statement of the master, that he believes the eye-sight of the pilot was bad, is not fully supported by other testimony, but the defendant persists in his conviction that such defective vision was one reason for his asking another to take a bearing of the buoy for him, just before he put the vessel in shore.  To support this conviction, Captain Gilman testifies that Hume told him on board the vessel, that he had been to Europe a short time since under treatment for paralysis.

   There seems to be no provision in the Pilotage regulations for any periodical examination of full-branch-pilots, touching any reduction in the measure of their ability or skill, which might follow sickness, accident, or other disabling causes.

   The evidence of Captain Gilman is clear in detail, and shows that the grounding of his vessel took place in full view of warning given to Hume by him of as danger apparent to the most casual observer.  He states that he particularly pointed out to the pilot, the near proximity of the vessel to the spit or bank; and that Hume's reply was that the thing referred to was a current, but that in less than two ships' lengths it proved to be a spit or shoal, and that instead of Hume's action being an error of judgment it was a carelessness, and a want of ordinary discretion and observation.

   The Master supports his details of the vessel grounding, by the evidence of three seamen.  The petitioner does not even cross-question the Master, and this after his having asked that his whole defence be made under oath.  I am thus left to deal with the case mostly upon the uncontroverted evidenced offered by the defendant.

   This is the first instance within my recollection where a pilot has come into Court to claim pilotage where he put the vessel on shore.  I believe it is the custom that no claim for compensation equitably exists for such officer doing what he is employed and licensed to prevent.  Where, however, a grounding is accidental, or is the result of baffling winds or tides, the Master can make an allowance for circumstances, but I do not consider that this case comes within that category.

   After resting his case, Mr. Hume offered evidence to show that there was no precedent for a judicial action in such premises.  He seems, however, to have determined to make a precedent, and that at the risk of eliciting a testimony in its nature and bearing not complimentary to himself.  He declined to submit his grievance to arbitration, insisted upon judicial action, and at the hearing failed to elicit evidence favourable to him.

   Even after getting the vessel on shore, Hume does not appear from the evidence before me to have exerted himself in a skilful manner for her protection, and it is alleged that once afloat by a riding tide, he managed in some way to get the ship on shore a second and a third time.

   The Master admits that Hume was on board his vessel from her anchorage in the lower harbour  to her place of discharge, but not by his request or order.  One of the pilotage regulations makes any pilot assignable by the Harbour-Master for harbour duty.   It does not appear whether Mr Hume was so assigned or not, but the payment for that service was made by the consignees, and forms no part of the claim in question.

   Captain Gilman made an error in permitting Mr. Hume to remain on board of his vessel after he had become satisfied of his carelessness and incompetence as such an officer.  He should have discharged him, and obtained independent assistance.  He, however, retained his services, and seems to have recognisee him as the pilot on his ship from Woosung to Shanghai/

  M In view of the evidence before me, I sustain the master in his refusal to pay the pilotage from sea to the point of the grounding of his vessel.  As he, however, retained the pilot from Woosung to Shanghai, it is right that he should pay the tariff rate for that service.  His offer to pay Mr. Hum4 one-half theb whole pilotagr may have been made on the grounher of hisvreceiptn ofn such services.  The Master will therefore pay to Mr. Hume pilotage from Woosung to Shanghai, for sixteen feet, at one and a half taels per foot, the vessel being in tow.  The claim for detention I dismiss, as there seems to have been no need for his involving judicial action.  The costs of the action will be borne by the parties in proportion to the pilotage awarded.

The Petitioner gave notice of appeal, but has since withdrawn it.

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