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Colonial Cases

Williams v. Cordes and Co., 1887

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Williams v. Cordes and Co.

Supreme Court for China and Japan
Rennie CJ, 18 January 1887
Source: North China Herald, 2 February 1887

LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 18th Jan, 1887
Before Sir R. T. Rennie, Kt., Chief Justice.
T. M. WILLIAMS, Master, and Owners of the steamship Paumben, Appellants and Defendants,
and
Messrs. A. CORDES & Co., Respondents and Plaintiffs.
  Mr. Wilkinson for the appellants.
  Mr. Wainwright for the respondents.
  Mr. Wainewright on behalf of the respondents said the issues had been narrowed down to the points put by his learned friend.  What had to be determined was whether the breakage was the result of negligence, or default in the management or navigation of the vessel within the terms of the Bill of Lading; and if not, whether it came within the exception "perils of the sea" so as to exempt the owners of the ship from liability.  He admitted that the onus of poof pay upon the plaintiffs.
[Not transcribed.]
  There appears to be no doubt that a ship owner may, if he uses apt words, protect himself from the negligence of his servants.  Thus in the case of the Duero where the bill of Lading contained a clause exempting the owners of the ship from liability to make good loss from "negligence or default of Master and mariners or others performing those duties" it was held that the ship owners were protected from liability to make good damage to goods caused in the course of the voyage by reason of the careless stowage of the goods by the Master and crew, and many of the large steamship companies give Bills of Lading in a form which protects them from the consequences of damage or loss however it may be occasioned whether by the negligence of their servants or otherwise. Steel v. State Am. S.S. Co. [L.R. 2 Appeal Cases 72.]
  The question then that I now have to deal with is simply whether the exceptions of "any act neglect or default whatsoever of pilot Master or crew in the management or navigation of the ship" covers and applies to the case of the restowage of the cargo in question at Saigon.  The learned Crown Advocate admitted that the words "management or navigation" are no so large as those of "performing their duties" in the Duero case, and also that the judgment of Denman J. in the case of Hayn v. Culliford is somewhat against him, but he urged that in the present case the cargo in question was re-stowed at Saigon clearly for the purpose of retrimming the ship after 400 tons of cargo had been discharged and that the  case was therefore a stronger one in some respects than that of the Duero and that of Hayn v. Culliford is distinguishable on the facts, inasmuch as the stowage in question there was original stowage made by a stevedore at the port of shipment, whilst it was not  very conclusive authority on this point as it was carried on appeal, and the Lord Justices although they upheld the judgment of Denman J. made certain observations which would seem to imply that they would not have done so had the negligence complained of been that of the Captain or crew.
  No case was cited on either side, nor have I been able to find one, in which it has been decided whether retrimming or restowal of cargo in the course of the voyage is or is not an act of management or navigation.  The learned counsel for the Respondents very properly admitted that the evidence went to prove that the cargo in the present case actually was shifted at Saigon by the Officers and crew for the purpose of trimming the ship and that he could not contend that trimming the ship in the course of the voyage would not be an act of management or navigation within the meaning of the exception in the Bill of Lading, but he urged that there was a distinction to be drawn between the trimming of the ship and the restowal of the cargo. The learned counsel produced no authority in support of this argument, and I cannot agree with it.
  It appears to me to be impossible to draw a distinction between a shifting of the cargo for the purpose of trimming the ship and a restowal of the cargo in the course of the retrimming. I am of opinion that a restowage of cargo in the course of the voyage for the purpose of retrimming the ship must be, at the least, incident to the management or navigation of the vessel, and consequently covered by the exception in the Bill of Lading.
  Under these circumstances, I feel bound to hold that the owners of the ship are not liable for the damage which subsequently happened to the cargo so restowed in the course of the voyage, and the decision of the court below will be accordingly reversed but, as the point upon which the appellants now succeed was no raised - and it is the only one on which they do succeed - in the Court below, I do not think I ought to give the appellant costs.

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