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Colonial Cases

The Sin Nanzing, 1881

The Sin Nanzing

Supreme Court of China and Japan

Mowat ACJ, 13 May 1881

Source: North China Herald, 13 May 1881

LAW REPORTS.

H.M.'s SUPREME COURT.

Shanghai, 5th May, 1881.

Before R.A. Mowat, Esq., Acting Chief Justice.

Messrs. FERGUSON & Co., as Agents for the C. C. S. N. Co., applicants, and Messrs. H. SIETAS and Co., Respondents.

  This was a case of appeal from a decision of the Consular Court at Chefoo, given on the 15th of September last, in which the respondents in the present suit obtained judgment with costs against the applicants for $392.50, as compensation for a damaged bale of canvas that had been sent to Chefoo from Shanghai by the C. C. S. N. Co.'s steamer Sin Nanzing.

 Mr. DOWALL appeared for the applicants.

  The respondents were unrepresented.

  The hearing of the case had been appointed for today, and Mr. Dowall moved, in pursuance of notice previously given, for leave to read two affidavits; one by Captain Drage, and the other by Mr. Poignand, which set forth facts that had not been adduced at the former hearing of the case at Chefoo.  In support of the motion the learned Counsel read from the N. C. Herald a ruling of Chief Justice French with regard to the admission of certain fresh evidence in the case of Tsung San v. Hatch.  He proceeded to explain that Captain Drage's affidavit was to the effect that the ship was seaworthy; a fact that seemed to have been assumed in the lower Court, but as to which nothing had been given in evidence. The affidavit by Mr. Poignand stated certain things that were embodied in an unverified certificate sent to Chefoo, that had been attached to the record of the case.

  A conversation ensued as to the nature of the damage sustained by the bale of canvas in question, and as to the way in which it had been injured.  It appeared that the damaged bale of canvas came, with others, from England by the s.s. Glengyle, and was transshipped by Messrs. Mustard & Co., the agents of the respondents, per the C. C. S. N. Co.'s streamer Sin Nanzing., from the Agents of which vessel, Messrs. Jardine, Matheson & Co., Messrs. Mustard & Co obtained a clean receipt.  On the arrival of the goods at Chefoo, the covering of this particular bale had burst, showing the contents to have been damaged by salt water.  Two other bales appeared to have been injured by the same agency, but they had been taken delivery of.  

  It had been alleged that all three bales had got wet on board the s.s. Glengyle before that vessel arrived at Shanghai; that they had lain in a godown for some days and got dry and rotten, and that this process had gone far enough in one bale of the three to produce the result of causing the cover to burst.  Mr. Poignand could speak to the condition of the goods as landed from the Glengyle, as a very careful register of all cargo was kept by a Chinaman on the wharf and checked by him.

  His LORDSHIP said that the motion would stand over for the present, and he would subsequently decide whether these affidavits should be read or not.

  Mr. DOWALL then proceeded to argue that the canvas in question had been delivered in as good condition as that in which it was received, and the appellants were not bound to give it in better order than that in which they had received it, a "clean receipt" to the contrary notwithstanding.  He cited Moody and Robinson, p. 10p8, Bates v. Todd; Abbott's Law of Merchant Shipping and Seamen, and the Merchant Shipping Act Amendment Act, 1855.  He also contended that although they had signed a receipt for the goods "in apparent god order," the Agents were not bound to pay the respondents compensation for damage under the circumstances of this case, and referred the Court to the cases of Meyer v. Desser, 33 LJ., Common Pleas, p. 289; and Jessel v,. Bath, L.R. 2 Exchequer, p. 267.

  His LORDSHIP said he would examine the law on the subject, and that it might perhaps be necessary to call Mr. Poignand to speak to the condition of the goods when shipped from here.


 

Source: North China Herald, 20 May 1881

LAW REPORTS.

H.M.'s SUPREME COURT.

Shanghai, 5h May, 1881.

Before R.A. Mowat, Esq., Acting Chief Justice.

Messrs. FERGUSON & Co., as Agents for the C. C. S. N. Co., applicants, and Messrs. H. SIETAS and Co., Respondents.

  His LORDSHIP delivered, today, the following judgment:

 This is an appeal from the provincial Court at Chefoo.  In the action in that Court the plaintiffs, the consignees of certain cargo carried by the Sin Nanzing, sought to recover from the defendants, the agents at Chefoo of the owners of that vessel, the sum of $392.65, being the alleged value of a bale of canvas which, having been received on board at Shanghai "in" (as stated in the bill of lading) "apparently good order and condition, was tendered to the plaintiffs in admittedly bad condition.

The defendants contended in the Court below that the damage had not been caused on board the Sin Nanzing, but the Court was "of opinion that the evidence produced by the defendants was insufficient to prove that the goods sustained the damage previous to the trans-shipment" at Shanghai, and gave judgment for the plaintiffs for a sum (including costs) of $360.

 The defendants appealed from that decision on the ground that the evidence showed that the package was tendered to the plaintiffs in the same condition in which it was when it was received on board their (the defendants') steamer at Shanghai, and they contended that such and no more was the extent of their obligation, whatever might be the language of the bill of lading.

  The cases cited by the appellants' Counsel in support of this contention were: Bates v. Todd, 1 M and R. 106' Myers v. Desser, 33 L.J. C.P., 289; and Jessel v. Bath, L.R. 2 Rex, 267, but the question in each of these cases had reference solely to the quantity of cargo shipped, and I have not been able to find any cases where the question was about what it is in this one, vixxx., whether the ship-owners can be heard to allege against the consignee that the condition of the cargo is different from what they have described it in the bill of lading to be.  I have found, however, in Oliver's "Shipping law Manual" (6th edition, 1879) at p.  29, the following passage - I quote more than bears on the precise point at issue for a reason I will give immediately:-

The master has no authority to sign bills of lading for any goods which have not been received on board, and if he does so, the shipowner is not bound by it; although the master himself will be bound if the bills of lading are transferred to third parties who are ignorant of the error (unless the captain has been misled by the fraud of the shipowner. The quantity, however, stated in the bill of lading is prima facie taken to be correct; if the shipowner disputes it, he must prove that the bill of lading is erroneous.

 And if the bill of lading acknowledges the goods to have been shipped in good order and condition, the shipowner cannot after delivery allege that they were shipped in a damaged condition, although such may have been the fact, and if they turn out to be damaged, the shipowner will be liable for damage to the consignee."

Unfortunately, the author of the book has, as he tells us in the introduction, intentionally omitted all case-references and other technicalities, as being inconsistent with the popular design of his work, and I am therefore unable to verify from the reported case the latter part of the passage.  But I make no doubt there is such a case, for the earlier portions of the passage are all taken from well-known authorities.  Thus the first half of the first sentence is a statement of the decision in Grant v., Norway (29 L.J. C.P., 93;) the second half is a statement of the effect of the third section of the Bill of Lading Act 1855, (18 and 19 Vic., c,. 111); and the authority for the second sentence of the passage is McLean v. Fleming (L.R. 2 So. and Div. App. at p. 130, per Lord Chelmsford).  If there was not this very positive and explicit statement as to the law on the subject, I think I should have been disposed to extend the principle of allowing evidence to be given to rebut the bill of lading (as can be done in cases where quantity is in question) to cases where the question is as to the condition of goods.

  It is true that with reasonable care the shipowner's servants ought to be able to take notice of the external condition of packages when tendered for shipment, while they could not be expected to ascertain, for example, the w eight where the cargo is shipped in bulk; but the difference in the two classes of cases would seem to be rather only a difference in the degree of sufficiency and the cogency of the evidence necessary than a difference in principle. So, again, it is true that in the present case - the consignee's agent here receiving a clean bill of lading, and having therefore no reason to suppose that the goods had been damaged before they reached this (if such was the fact) - the consignee would be prejudiced to the extent of being delayed in his remedy against the first ship, and perhaps losing it altogether, from having been misled  by a carelessly inaccurate statement by the owners of the second ship; but the same result to the unfortunate consignee would equally seem, from decided cases, to follow if, while the correct number of packages was inserted in the bill of lading, by mistake fewer packages had actually been trans-shipped than the bill of lading stated had been received on board.

  But, however I might have decided the point had there not been the passage in Oliver which I have italicised, it is clear that in the face of it I ought not to disturb the decision of the Court below, even though on the evidence taken at Chefoo or tendered here upon affidavit, I should have been of opinion that the damage existed prior to trans-shipment.  The appeal will therefore be dismissed, - with costs to the respondents if they have incurred any.

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