Skip to Content

Colonial Cases

Messrs Melchiers and Co. v. Massageries Maritimes Co., 1879

[sale of goods]

Messrs  Melchiers and Co. v. Massageries Maritimes Co.

French Consular Court, Shanghai
17 July 1879
Source: The North China Herald, 22 July 1879

 

FRENCH CONSULAR COURT

Shanghai, 17th July

Before G. LEMAIRE, Esq., Acting Consul-General, and Messrs. R. DE MALHERBE and J. ROUSTAN, Associates.

Messrs. MELCHIERS and Co. v. MESSAGERIES MARITIMES Co.

   This was an action to recover the sum of Taels 3,432, the value of a shipment of steel by the M.M. Co.'s steam Yangtse.

   Mr. ROBINSON appeared for the plaintiffs.

   Plaintiffs, who are merchants and commission agents on the French Bund, had a shipment of 995 cases of steel by the M.M. Co.'s steamer Yangtze, to be delivered at Shanghai.  The steel was sent from Germany to London, thence to Marseilles, where it was shipped on board the Yangtze, and on arriving at Shanghai 408 cases were damaged, while the remainder were in good condition.  The goods had been sold by the plaintiffs to Chinese, but owing to the  damaged condition of the 408 cases, they were unsaleable in the Chinese market, and, in consequence plaintiffs refused to take delivery and sued the defendants for the value of the 995 cases, alleging that the steamer was liable  for the  damage done.'

   Defendants were represented by their agent, Mr. Du Pouey, who denied the liability of the steamer, and alleged that the damage resulted from the manner in which the steel was packed.

   The goods had been surveyed by order of the Consul-General by Captain Roberts and Messrs. Legras and Percebois, who made a conjoint report.  There was, however, a difference of opinion between them, two being of the opinion that the  damage was the result of bad packing, while the other was of the opinion that the packing was sufficient and that the damage had been caused by the steamer.

   Mr. DU POUEY mentioned that three different shipments of steel, each of 500 cases, arrived at Shanghai by the steamer Ava.  One lot had not a single case damaged; in the second lot there were two or three cases damaged; and in the third lot, which was a consignment to Messrs. Melchers and Co., there were 120 cases broken. Messrs. Wheelock and Bluntschli surveyed the last lot and reported that the damage arose from the way in which thse steel was packed, as was proved by there being so few broken cases in the other two shipments.  The same two gentlemen had seen the shipment by the Yangtse and reported that the style of packing was the same as on the previous shipment by the Ava, in which there were 120 damaged cases.

   Mr. POIGNAND, one of the employees at the Hongkew Wharf, who had inspected the 995 cases, gave it as his opinion that the cases were not as strong as cases used for that purpose usually are.

   On behalf of the plaintiffs Messrs. Jurgens and E. W. Rice were examined, and expressed their opinion that the packing was sufficient.

   It will thus be seen that the evidence was very conflicting, and after the case had occupied the Court over two hours, the hearing was adjourned until Thursday next.

 

Source: The North China Herald, 29 July 1879

FRENCH CONSULAR COURT

Shanghai, 24th July

... It will be remembered, from the report of the case which appeared in our columns a week ago, that the plaintiffs, who are merchants and shipping agents on the French Bund, had a shipment of 995 cases of steel by the M.M. Co.'s streamer Yangtze, and that when the same arrived at Shanghai 408 cases were damaged.  Plaintiffs refused to take delivery of any of the cases, and sued for their total value.

   Defendants denied the steamer's liability, contending that the damage was the result of bad packing.'

   The evidence on the question of packing was very conflicting, and the Court took time to consider its decision.

   Today, the Court said owing to the unsatisfactory nature of the evidence, in regard to the conflicting character as to the packing and solidity of the cases, there would be adorer survey of the goods by three independent and competent surveyors, namely, Messrs. James Simpson, P. V. Grant and P. Maclean.  These gentlemen would be asked  to survey the goods and answer certain questions - first, as to the nature and quality of the materials used in the manufacture of the cases; second, as to the solidity of the cases, taking into consideration the nature of the goods they had to contain and the length of the vitiate; third, to state whether the packing was superior, equal or inferior to the packing generally used for such merchandise; fourthly, whether the damage was caused by external shocks to the cases as the result of negligence in loading, stowing, or unloading, or whether it resulted  from internal shocks caused by the movement of the steel in the cases, owing to it not being firmly packed; and, lastly, if the  damage had resulted from both of these cases, external and internal shocks, what was the proportion of  damage to be attributed to each.

   The case was adjourned until true report of the surveyors is received.

 

Source: The North China Herald, 12 August 1879

FRENCH CONSULAR COURT

Shanghai, 9th August

Before G. LEMAIRE Esq., Acting Consul-General, and Messrs. R. DE MALHERBE and J. ROUSTAN, Assessors.

Messrs. MELCHERS & Co. v. MESSAGERIES MARITIMES CO.

   This case had been twice previously before the court, namely on the 17th and 24th of July.  It was an action to recover the sum of Taels 3,432, the value of a shipment of 995 cases of steel by the M.M. Co.'s steamer Yangtze, consigned to the plaintiffs, who are merchants and commission agents on the French Bund.  The steel was sent from Germany to London, thence to Marseilles, where it was shipped on board the Yangtze, and on arriving at Shanghai 408 cases were damaged, while the remainder were in good condition.  The goods had been sold by the plaintiffs to Chinese, but owing to the damaged condition of the 408 cases, they were unsaleable in the Chinese market, and, in consequence, plaintiffs refused to take delivery and sued the defendants for the value of the whole 995 cases, alleging that the steamer was liable for the damage done.

   Defendants, who were represented by their agent, Mr. Du Pouey, denied the liability of the steamer, and alleged that the damage resulted from the manner in which the steel was packed.  In support of this view Messrs. Wheelock, Bluntschli, and Poignand were examined, who gave it as their opinion that the packing of the cases was insufficient.

   On behalf of the plaintiffs, Messrs. H. Jurgens and E. W. Rice were examined, and expressed their opinion that the packing was sufficient.

   The goods were surveyed by order of the Consul-General by Captain Roberts and Messrs. Legras and Percebois, who made a conjoint report.  There was, however, a difference of opinion between them, two being of opinion that the damage was the result of bad packing, while the other was of opinion that the packing  was sufficient and that the  damage had been caused by the steamer.

   The foregoing is an outline of the proceedings on the 17th July, and when the Court met on the 24th, it ordered another survey to be made of the goods owing to the conflicting nature of the evidence as to the packing and the solidity of the cases contained the steel, and appointed Messrs. James Simpson, P.V. Grant and P. Maclean as the surveyors.  They were instructed to answer certain questions submitted to them by the Court.

   When the Court opened today, their report was read by Mr. J. de Bielke, who acted as Clerk of the Court.

   The three surveyors reported that they had made the survey of the 995 cases of steel stored at the Hongkew Wharf, in pursuance of the order of the Court, and they had also surveyed other shipments of steel imported in sundry steamers and storied at different places.  The questions submitted to them by the Court and their answers thereto were as follows:-

   1st Question - As to the nature and quality of the material employed in the manufacture of the cases containing the steel?

   Answer - Soft wood of the average thickness of [5/8] part of an inch, English hoop iron bands [5/8] of an inch in width, and No. 25 BW gauge at both ends of cases.

   2nd Question - As to the strength or suitability of the cases, taking in to consideration the nature of the goods they contained and the length of the voyage?

   Answer - The packing is weak, and in our opinion, considering the nature of the voyage, extraordinary care would have to be exercised in conveying the cargo in a sound condition to its destination.

   3rd Question - Whether the packing is superior, equal or inferior, to the packing generally used for such merchandise?

   Answer - The packing is equal to some of the parcels surveyed and inferior to others.

   4th Question - Whether the damage was caused by external shocks to the cases, or was the result of negligence in loading, stowing or discharging; or whether it resulted from internal causes such as the movement of the steel in the cases arising from loose packing?

   Answer - We consider the damage has arisen partly from the intrinsic weakness of the cases and partly from reckless treatment by the steamers' employees, in the loading, stowing, or discharging the cargo.

   5th and last Question - If the damage resulted from both of these causes, external and internal shocks, what is the proportion of damage to be attributed to each?

   The answer to this question, the surveyors said, was based upon the surveys they had made of the other parcels of steel imported from Europe, stored in various places in Shanghai, and belonging to different consignees.  They had examined five lots of steel altogether, each of which was particularised in their report. 

   In three lots, including the one the subject of the present suit, the packing was similar, and they had been damaged in the following proportions, 44 per cent (Messrs. Melchers & Co.), 33 per cent, and 23 per cent. 

   The other two lots were differently packed, one showing 7.78 per cent of damage, while the other was not damaged at all.

   If the proper quantity of steel was delivered to the consignee, they reported that damage to the cases had hitherto been accepted as inevitable.  Considering, however, that Messrs. Melchers & Co.'s consignment of 995 cases had suffered 13 per cent more damage than the two other lot's of steel which were similarly packed and had also been imported from Europe, they attributed the extra damage to the carelessness of the employees of the steamer.

   The COURT, in giving its decision, reviewed the evidence that had been given, pointing out that in the first report of the survey ordered by the Court there was a preponderance of opinion that the damage was the result of bad packing.  Then, this opinion was supported by the declarations of Messrs. Wheelock, Bluntschli and Poignand, whereas on the other hand they had the evidence of Messrs. Rice, Jurgens and Nicholson that the packing was not bad, and that in their opinion the steamer was responsible for the damage.

   The report of Messrs. Grant, Maclean and Simpson confirmed the opinion of the majority of the other surveyors and described the packing as weak, and that extraordinary care would have to be exercised in conveying the cargo in sound condition to its destination.  Further, these surveyors had surveyed two other lots of steel brought by other steamers and stored in different godowns, but each having the same description as the 995 cases, the subject of this suit, and their report showed that this mode of packing was insufficient, as in these two lots there was a proportion of  damage from 23 to 33 per cent, which could not be considered normal in face of the result of the surveys of the other two shipments of different packing, one of which had only 7 per cent damage, and in the other there was no proportion of damage at all.

   The Court also pointed out that according to Article 103 of the Code of Commerce the carriers of goods were only responsible for damage other than that arising from the intrinsic voce or defects of the merchandise itself, and that after hearing the report of the last surveyors, and the other evidence that had been brought forward, the Court was of opinion that the plaintiffs were not entitled to recover. Therefore they would be non-suited, and ordered to pay the costs of the Court, and the expenses of the two surveys.

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