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Colonial Cases

Turnbull v. Bowman, 1883

Turnbull v. Bowman

Civil Summary Court

Mowat, AJ, 25 April 1883

Source: North China Herald, 27 April 1883



Shanghai, 25th April.

Before R. A. MOWAT, Esq., Assistant Judge.


  This was a claim of Tls. 50, for damages done to the plaintiff's vessel, the Brunette, by the defendant's house-boat the Fallke.  

  His Honour asked the defendant if he admitted any liability.

  The defendant said no; he did not think he had any right to pay the claim at all.

  The Plaintiff in answer to His Honour, said he, as Master of the Brunette, sued the defendant for having, on the night of the 7th instant, collided with his vessel, carrying away the boom and doing damage to the extent of Tls. 50.

  His Honour - With what craft do you mean?

  Plaintiff - With the house-boat Falke.

  His Honour - Were you at anchor?

  Plaintiff - I was at anchor in the Lower Limits; it was on the night of the 7th inst., about half-past nine.

  His Honour - We you on board?

  Plaintiff - I was on board.  My light was burning.

Defendant - I say it was impossible for my boat to cause such an accident - for my light boat to carry away his jib boom.

  His Honour - Were you on deck?

  Defendant - I was on board, but not on deck.  When I came on deck my boat was alongside the ship - not near the jib-boom.  I asked if any damage was done, and they said no, and wished us a pleasant trip.

  His Honour - You admit the collision, but you do not understand how so much damage could have been done?

  Defendant - Yes.

  The Plaintiff was then sworn.  He said his name was John Turnbull, and he was master of the Brunette.  He was on board the night of the 7th inst., but he was below, and in bed.  He was not a witness of the collision.  He heard a noise alongside but he did not get up. He did not hear anything said.

  His Honour - When did you first see anything of the effects of the collision?

  Plaintiff - At 6 o'clock the next morning.  I then found that the boom had been carried away.  It was broken short off.  There was only the stump left; the part which projected was broken right off and was hanging by the chain which was attached to it.  It was rigged-in at the time.

  His Honour - Is there nothing else you want to say about the matter?

  Plaintiff - Nothing else.

  His Honour - How do you arrive at the amount of Tls. 50?

  Plaintiff - That is the amount which the Old Dock Company have charged me for a new boom.

  His Honour - Did you, between the 7th inst. and now, make any attempt to discover who had done the damage?

  Plaintiff - On the Tuesday after the collision I identified the boat, and then I made enquiries every day until the 14th.

  His Honour - How did you identify the boat?

  Plaintiff - By the torn sail, and by the mark on his rudder-head, where he had taken a chain belonging to us and made it fast to his rudder-head.  The mate had given me all the particulars.

  His Honour - The name of the boat was the Falke?

Plaintiff - Yes.  I had a lowdah belonging to Mr. Drummond with me when I identified the boat.  He questioned the lowdah on the boat, and the man at first admitted having been to Woosung, but afterwards denied it.

 His Honour - But you wanted to discover who was the owner of the boat?

  Plaintiff - Yes.  On the 14th I put an advertisement in the paper, as follows:- "The gentlemen who were on board the yacht that colluded with the barque Brunette on Saturday night not having yet communicated with Morris & Co.,=will be kind enough to do so at once."  I got no reply whatever.

  His Honour - When did you discover that it was Mr. Bowman's boat?

  Plaintiff -On the 17th.  I then made an application to him to make good the damage he had done, and he replied saying that he would send his carpenter on board to measure the boom, and he had a spar in his yard which he thought would do for it.

  His Honour - At that time the boom had not been repaired?

  Plaintiff - No.  On the following morning, his carpenter not having shown up, at 9 o'clock I sent my carpenter to Mr. Bowman, and at 11 o'clock his carpenter came on board with a note:- "Here is my carpenter; he will measure for the new boom."   The carpenter asked my permission to take the old boom to make a new boom by, and I gave him permission.  On the following day I received a note from Mr. Bowman saying that he would like to see me.  I called on him, and he then said he did not see how his boat could have broken my boom, and that I should have to prove that it did so.  That was last Friday.  I immediately went and gave the order at the Old Dock for a new boom.

  His Honour - Has it been completed?

 Plaintiff - Yes.  It is there ready for me to take it when I choose.  It is not on board the ship yet.

  His Honour - Have you seen it?

  Plaintiff - Yes, your Worship.

  His Honour - Is it similar in all respects to the former boom?

  Plaintiff - Yes. It is the same length, and it has the same old irons that come off the old boom.  It is similar in all particulars to the old boom.

  His Honour asked the defendant if he had any questions to put.

  The Defendant asked the plaintiff whether it was on Friday that he called on him.

  The Plaintiff then said it was on Saturday morning.

  His Honour - Nothing much turns upon that.  You were given an opportunity of inspecting the damage yourself.  You sent your Carpenter on board, and you proposed then to replace the spar.  Afterwards you thought the damage was not done by you and you declined to pay for it?

  Defendant - Yes.  I thought at first that it was small thing.  When I found what it was I did not think it was possible that my boat could have done it.  If I had known what it was I should have sent a surveyor on board.

  William Oliffe, A.B. Seaman, late of the Brunette, was then examined.  He said he remembered the collision on the 7th April.  He was on deck at the time, as watchman, his watch being from 8 to o9.20.  The collision occurred at a quarter past nine.

  His Honour - Where were you at the time?   Witness - I was on the forecastle-head.

  His Honour - Could you see her well? - Yes, Sir.

  What part of her came into contact with you? - Her sail and mast came into collision with our flying jib-boom.

  Well, what happened? - I was on watch, and I heard a lot of Chinamen singing and crying out.  Of course, I did not understand what they were saying, but I saw by the way the boat was going that she would foul us.   I sung out to a Chinaman, "Why don't you lower your sail, you long-tailed wretch; don't you see where you are going to?" No sooner were the words out of my mouth than she collided with us.  She swung round on our bow, and hung there by the head-gear belonging to our boom.

  His Honour - Did the boom break? - The boom must have broken.

  His Honour - That is what I want to know.  I was not there.  What happened?   Witness - she hung foul of us by the gear belonging to the jib-boom, and was swung round by the tide.   I was standing on deck, and I ran down and asked "What is your name?"

  Was the boom broken at that time? - The boom broke, Sir. I says "Who's captain of this boat?" which it is my place to do, and a Chinaman says "No savee."  And then two or three Europeans stepped out of the cabin and one of them says "I think she is sinking." I says, "Yes; I think I hear the water running in."  He said "Give us your hand."  I did so and two of them came on board. Then the chief officer came on deck and took charge of the vessel.  I says "This is rather a cold night, gentlemen, to rouse a chap up like this - you will understand, Sir, what a sea-faring man is - I says, "Have you got nay stuff on board?"

 His Honour - Two Europeans came on board?

 Witness - Yes.  They stayed on board two or three minutes, and they went back to the boat when they found she was not sinking.

 Then the boat went off? - She did not go away for about half-an-hour or three quarters.

What kind of wind was there? Was there much wind? - There was a pretty middling breeze - enough to get the sails full.  The sails were just full.

 Was it strong or not? - As strong as it generally runs.  I do not know that it runs stronger at one time than another.

  Was the boast sailing up down? - She was bound for Woosung.  She was tacking across.

  Did the boom go the moment that her sail and mast came into contact with it, or afterwards? - Just at the moment.  When she swung round under our bows she struck it with her mast.

  And snapped it? - Yes.

  The defendant asked whether the boat was fastened to the Brunette by a chain belonging to that vessel.

  The witness said he did not see her fastened.

 The Defendant - He says the boat swung round after it struck the jib-boom.  It could not have done so, because her stern was facing our bow.

  Witness - She was under our bows.

 His Honour - Was her bow pointing to your stern?

 Witness - Yes.

  George Wood, mate of the Brunette, was next sworn, he said he was below at the time of the collision, but he heard it and immediately went on deck.

  His Honour - What state did you find the vessel in?

 Witness - I found the boat close in under the starboard bow, with her bow towards our stern, and our jib-boom carried away.  Four foreigners came on board.  I asked the name of the boat, and they told me it was the Falke.  I asked the name of the owner, and one of them - I think by his voice it was the defendant, said. "Oh, I am very well-known in Shanghai Captain; you will have no trouble in finding me."  The boat fouled our starboard foreyard-arm.

  The witness Oliffe was recalled, and questioned by his Honour as to the direction in which the house boat was going.  He said she stood across the port bow of the Brunette to begin with, and was swung round by the tide on the starboard bow.

  The witness George Wood was then cross-examined.

  Defendant - Did not we ask whether any damage was done, and did not you say there was no damage done?

 Witness - Yes; you asked that question with reference to your boat.

  Defendant - I asked whether any damage was done to the ship.

  Witness - One of the gentlemen - I think it was you - said, as you were going over our railing,that you heard the water rushing into the boat.  I said no the water was rushing between the two boats; there was no damage done to your boat.  I said it was very lucky that the boom was carried away, or your boat would have been capsized.

  Defendant - You said it was lucky that we were not on the other side, or the chain would have cut us in two.  How could we get at the jib-boom if the chain was up?

  Witness - It depends on how the ship was lying.

  Defendant - It was the strongest tide we have had for some years.

  This ended the case for the plaintiff.

  Carl George Warburg, Surveyor to Lloyd's Registry of Shipping, was then called as a witness for the defence.  He said he had examined the boom, the two parts of which were lying outside the Court Buildings.

  His Honour - Do you think that a house-boat, in a strong tide, coming foul of a ship, could break such a boom?

  Witness - Not if it was perfectly strong and in good condition.

  Well, you have had a good opportunity of examining it.  Is it sound? - No, Sir.

 Where the fracture is, it is not sound? - No, Sir.

  What is the matter with it? - It is partly gone.

  Rotten? - Yes, Sir.

  Any traces of its being sprung before, there? - yes, at that place and also at others.

  You say that unless it had been unsound it would not have broken? -No, Sir, not under those circumstances.  If it had been rigged out, and in a strong breeze, it might have done, but not when it was rigged-in, as I understand it was.

  Plaintiff - You say the boom was partly gone.  Have you any reason to think that it would have lasted for some considerable time?

 Witness - I consider the boom was not fit to be there.  If I had come on board your ship for Lloyd's Registry I should not have passed it.

  That is not my question.  Have you any reason to doubt that it would have lasted for some considerable time? - I do not consider that it would have lasted to do its work in a proper manner.

  It would not have dropped off, unless it had been touched, I suppose? - I do not suppose it would have dropped off.

 His Honour - No, of course it would not.

  Plaintiff - Of course it takes a new boom of the same description to replace it?

  Witness - Not of the same description.

  Plaintiff - I should not call the surveyor to ask whether the boom was good enough, if I chose to buy a boom?

  His Honour - Was it gone?

  Plaintiff - There is the smallest particle of the place gone on one side, but that boom would have lasted for years.  Had the gear been set up, the boom would have pulled the mast out of the boat.

  The Captain, at the request of His Honour, made a drawing of the position of the boom. He said it was 42 feet long, of which 15 feet composed the flying boom.  This fifteen-foot length had been cut off by the Falke.  The boom had been in the ship two years, having been passed by Lloyd's Surveyor in April 1881.  He detailed several repairs which had been done to the ship, but none affecting the boom.

  His Honour - Now, Mr. Warburg, it seems that this spar was passed, two years ago, by Lloyd's Surveyor. Assuming that it had not been broken, and you had seen it as one entire spar, would you have passed it? - No, I would not.

  What would have made you decline to pass it? Because it is quite gone.

  You would not have seen that, would you? - I should have tested it - sounded it - if I had been ordered to survey the ship specially.

  Are all surveys special? - No, Sir.

  Then the survey two years ago might not have been a special survey? - No, Sir.

  Do you say it was not sound two years ago? - It could not have been sound two years ago.    And yet it was passed? - I often see ships which were passed six months before in London which I could not pass.

  His Honour - I will look at the spar, and you will point out to me where it is unsound.

  His Honour and the parties in the case then adjourned to the outside of the court and closely examined the broken boom.  The defendant informed his Honour, outside the Court, that he had offered to pay one-half the claim, but the Captain had refused to accept this.  Finally his Honour said he should reserve his decision and give notice to the parties of the date when he would give judgment.

Source: North China Herald, 4 May 1883

Shanghai, 27th April 18834
Before R. A. Mowat, Esq., Assistant Judge.
His Honour, before giving judgment in this case, said - It was stated to me the other day that some offer had been made by the defendant to the plaintiff in this case to compromise the matter.  Is there any chance of the parties agreeing upon a settlement?
  The defendant intimated that under the circumstances he could not agree to a settlement.
  His Honour - You are not willing to settle the matter with the defendant?
  Plaintiff - Not now that I have been driven into Court.
  His Honour  - I very much regret that the parties cannot agree between themselves upon a settlement, because a settlement come to between themselves can hardly fail to be more satisfactory than the one which the law applied in this case.
  The law can only work by rules, and these rules, from their very nature, in many cases cannot do absolute justice to the parties; they have been adopted in the absence of any more satisfactory mode of dealing with such cases.  In this case the law is that the plaintiff should be put in at least as good a position as he was before the collision, and if that cannot be done without his incidentally gaining some advantage, then he is allowed to gain this advantage.;  Now, it is impossible for me to shut my eyes to the fact that by the defendant paying the amount of the claim, the plaintiff is gaining a very substantial advantage;  he has got a spar very much superior to the one he has lost,  but that is a circumstance which I cannot control.  He has by the default of the defendant, been deprived of a spar, such as it was, which served his purpose, at any rate at the time, and he is entitled to get as good a spar in its place.  If as good a spar, precisely, cannot be supplied to him and he gets a somewhat better one, that, as I said before, is a circumstance which cannot be helped.  There is no mid-point between nothing and Tls. 50 in the case of this claim.
  I might if it was left to me to judge what would be a fair settlement, form a rough guess as to the amount which should be paid by the defendant, but there would not be any certainty about the amount.  There is no reason why it should be one-half, one-third or one-quarter or any particular proportion of the claim.  On that ground I rather regret that the parties could not agree upon a settlement, because I think in that way a fairer settlement could be arrived at than the one which I am forced to adopt, which is that the defendant must pay the full amount. (To the defendant) Do I make that clear to you?
  Defendant - Yes, that is clear.  But with regard to the Captain's saying that he cannot make a settlement now that he has been driven into Court, I wish to point out that I offered to make an arrangement before it came into Court.
  His Honour - Yes, you told me so before.  I should be glad if it could have been settled in any way, but this is the rule which in law applies to this case.  There must be rules in these cases, and I see no other rule which could be applied.  The law has to decide between the person injured and the wrongdoer, and it decided that the wrongdoer must pay.  You must pay the amount of the claim and the costs of the case.
  Plaintiff - Your Honour is also aware of the difficulty I had in finding the actual person who did the damage.
  His Honour - That does not affect you pecuniarly at all, except perhaps in regard to the cost of the advertisement.
  Plaintiff - It put a great obstacle in the way of a compromise.
  His Honour - Well, as I have said, and as you know very well, you get a much better spar than you had before.  If you can consider that at all in the Defendant's favour I shall be very glad; but at present he pays Tls. 50 and the costs.  You do not wish to take advantage, I suppose, of the defendant? You are actually gaining very considerably.
  Plaintiff - No, I am not.
  His Honour - Very well, if you are not - but I consider you are getting a good sound spar for one that was unsound.
  Plaintiff - That spar would have lasted me a considerable time.  Of course we are liable to accidents at sea.
  His Honour - Very well; I have nothing further to say.  I have decided the case; the defendant must pay Tls. 50 and the costs.

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