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Colonial Cases

Band and Warburg v. Morrison, 1887


Band and Warburg v. Morrison


United States Consular Court, Shanghai
Kennedy, 7 March 1887
Source: North China Herald, 9 March 1887

Shanghai, 7th March.
Before General Kennedy, U.S. Consul-General, Acting Judicially.
  In this case each of the plaintiffs sued separately, but it was agreed that as both pleadings were practically the same they should be heard together.  The plaintiffs each sought to recover the sum of Tls. 32 in respect of a special survey of the ship Hagerstown.  The defendant in his answer objected to so large as sum, but expressed his willingness to pay each of the plaintiffs Tls. 16 which he held was a fair remuneration.
8th March.
  On the 1st February, 1887, plaintiffs, together with Captain Loring, under a warrant of survey issued from this Consulate-General, made survey in this port of the ship Hagerstown, which defendant, as attorney for Parker M. Whetmore et al has possession of.  They were requested by defendant to act, and informed at the same time that another survey of the ship had been made on the 17th of February by Messrs. Roberts and Parker.  Their report was rendered the next day, and is a very elaborate one, and on it, chiefly, defendant had had estimates made of the amount of money required to repair said ship.  For this service they charged Taels 32 each, which defendant refused to pay, and suit was brought by plaintiffs.  By consent of parties, the issues being the same in each case, they were tried as one.
  The defence is that the sum charged is excessive, and not warranted either by the custom of the port or the value of the services rendered.  Plaintiffs contend on their behalf that it was a special survey, a previous survey having been made, and as such they are entitled to the sums claimed and that in making it they exercised an extra amount of skill and care.
  Witnesses differed as to what a special survey is, and there is no definition given, that I have found, whereby to reconcile their contrariety of definition, and it strikes me that in this confusion, plaintiffs have as much right to claim, in view of its having been a second survey with the ship in the condition the report shows it to be, that it was a special survey, as the defendant to say that it was not.  This being fixed, the preponderance of testimony is decidedly in favour of extra pay for a special survey.  There are no regulations as to charges for surveys, and consequently one set of surveyors may charge one fee and another set a different one, and the evidence shows that this has been done. Nor does custom absolutely fix it.  The most experienced witness of all who testified stated that the usual fee was Taels 16 in this port and Taels 32 for Woosung and the Arsenal, but that it depended on circumstances, and he himself in some instances charged in this port Tls. 32, and as high as Tls. 50; regulated by his own estimate of the services rendered.  Why should not plaintiffs claim the same right? There is evidence furthermore that Tls. 32 have been charged in several instances in surveys in this port, and the special circumstances under which they were made do not seem to have warranted those charges any more than in this case.
  It is very clear that the parties who have hitherto fixed the charges have been the surveyors themselves, and so far as custom has established anything in regard to surveys, it seems to have established this precedent, as one of the witnesses said he charged Ts. 32 at time, because parties were willing to pay it. As to whether the services were worth the sum charged, we have what plaintiffs say as to the minuteness of the survey, what defendant says as to their survey being more thorough than the first, the elaborate report rendered, and the specification for repairs made out, and in the absence of any standard by which to judge of the value of such services, these facts go very far to justify the charges.
  Then too, we must consider the facts that defendant was dissatisfied with the first survey, and specially requested plaintiffs to act; also the delicacy of their position in coming in the wake of the surveyors of the day before; one of whom is the most experienced in Shanghai and their regarding themselves in consequence, as deputed to do a special work.  
  I cannot refrain, however, from adding, that hereafter, in the light of this disagreement as to charges, I shall command in all surveys made under orders emanating from this Consulate-General, that the prices therefor be stipulated in advance and thus avoid the possibility of suit.  Nor is Captain Morrison to be blamed for resisting what he was informed, was an excessive charge.  
  It is ordered and adjudged that plaintiffs do severally have judgment for the sum of Tls. 32, and the costs of this action.

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