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Colonial Cases

Meyerink v. Heine, 1888


Meyerink v. Heine

Russian Consular Court, Shanghai
Reding, 17 July 1888
Source: North China Herald, 21 July 1888

Shanghai, 17th July
Before J. E. REDING, Esq., Consul for Russia, Mr. CARL BOCK, Consul for Sweden and Norway and BARON GUNSBURG. Assessors.
  This was a claim against Capt. Heine, Master of the Russian ship Primus for $897.56 for damages to a quantity of iron, and old iron wire consigned to the plaintiff who carries on business in Shanghai.
  Mr. H. S. Wilkinson appeared for the defendant the plaintiff conducting his own case.
 His Honour said the first thing the plaintiff had to do was to show that he was the owner or consignee of the goods.
  Mr. WM. MEYERINK, having been sworn, said - I am German subject, carrying as business in Shanghai under the name of Wm. Meyerink & Co.  I put in three bills of lading for the goods mentioned in the petition.  We are the consignees of the iron.
  Mr. Wilkinson - Whose iron is it?
  Plaintiff - Why do you want to know that?
  Mr. Wilkinson - Because the man who owns the iron is the man who should bring this suit.
  Plaintiff - The owner of the iron may be in America, and not be able to sue for it here.
  Mr. Wilkinson said he did not wish to raise any unnecessary objection on this point, but in the interests of his client he wanted to know who was the real owner of the iron.
  Plaintiff - Then I decline to answer that.
  Mr. Wilkinson - Are you the owner?
  Plaintiff - I refuse to say whether I am or am not the owner.  The question has nothing to do with the matter of damage.
  Mr. Wilkinson - Very well that finishes the case.
  In reply to Mr. Bock the plaintiff said that he had not advanced one cent on the iron. But the bill of lading which he held constituted his right to appear and look after the interests of the firms whom he represented.  Otherwise it would be impossible to do business in the port.
  His Honour said it seemed to him that the plaintiff had not all the documents necessary to put him in order.  In addition to the bills of lading produced there might be insurance papers.  Furthermore the property in question might belong to the banks as far as the court knew.
  Plaintiff - No bank has anything to do with it. The bills of lading are in my name.
  His Honour said it might be that someone else could come forward with other documents by and by - policies of insurance perhaps.
  Plaintiff - But you cannot get delivery of the cargo on policies of insurance.  A ship arrives in Shanghai and the only documents against her cargo are the bills of lading, and the Wharf will never give you delivery unless these bills of lading are produced.
  Mr. Wilkinson said he would read the English law on the point, and he believed that the continental law would be found to be the same.
  The learned Counsel resuming said that the plaintiff, holding bills of lading, was undoubtedly justified in having the goofs handed over to him, on these orders from the shipper, but if the ship was to be sued, the owner should sue in his own name, for otherwise if the case went against Mr. Meyerink the owner could come forward and sue again.  Unless Mr. Meyerink had advanced money on the goods he was not entitled to sue.
  The plaintiff said that he did not understand the law to be that laid down by Mr. Wilkinson, and said that he sued by virtue of the custom and mercantile usages of the [ort.
  Hi Honour said he thought that in this particular case it was important to know who the owners of the iron were.  Here Mr. Meyerink claimed damages because certain goods had been injured by this bleaching powder, and it was well that they should know whether there was any connection between the shippers of the bleaching powder and the shippers of the other cargo.
  Mr. Meyerink said he could prove that there was no connection.
  Mr. Wilkinson submitted that the plaintiff was bound by the general rule and should state his interest in the cargo, and give the names of the owners.
  Mr. Meyerink - I appeal to the Russian consul, and you (Mr. Wilkinson) cannot lay the law down to me.  If Mr. Reding says I am to answer the question I will do so.  I have no reason for refusing except that it is very likely the names of the firms with which we do business will appear in the newspaper, and our business will be laid open to competition if I disclose the names.  But if the Russian Consul says I am to tell them, I shall do so.
  Mr. Wilkinson said he had another reason for getting the name of the owners put in the petition. If Mr. Meyerink sued and did not recover, it might be said by the owners of the cargo that he was not properly authorised and his client might be sued again when the ship reached another port.
  After some further argument in which the plaintiff displayed a great reluctance to give the names of his principals in the matter, or to put their names in the petition in conjunction with his own, he consented to do so on the suggestion of Mr. Reding, who intimated to our reporter that he was "in honor bound not to publish the names in the Daily News."  The petition was then amended, the name of the firms being put in; and counsel and plaintiff referring to them all through afterwards as Firm No. 1 and Firm No. 2.
  Resuming his examination, the plaintiff said that these goods were simply sent out for sale, and there was nothing advanced on them.  He was bound by the usual custom of the port to sue for the damaged condition of the goods to protect his clients.  The Plaintiff handed in as evidence a report of a survey made by Capt. J. P. Roberts, and said that he saw the goods at the wharf and they were in a very much damaged condition.  He was willing to take the opinion of any other marine surveyor if the Court was not satisfied with that of Capt. Roberts. His claim was that the iron was exceptionally rusty.  The surveys by Captain Roberts were dated the 16th July.  There was another survey made by Capt. Roberts made when the ship arrived.
  Witness told the Captain to have the ship surveyed.  He did not remember being told by the Captain to send a surveyor.  The custom of the port is to have the hatches, etc., examined and the ship surveyed generally as soon as she arrives.  It was before the ship came alongside the quay that plaintiff told him to have the hatches surveyed.  There was no conversation with regard to the stowage.  On opening the hatches these surveyors say how the cargo looks.  Captain Roberts came to make a survey because as soon as the ship arrived there was a horrible smell when the hatches were opened, and the powder was put out on the wharf, the wharf people directed it to be at once removed in boats.  The idea struck plaintiff the moment he saw "bleaching powder" in the manifest that it was a most dangerous cargo.  If the damage was sea damage, the ship was not liable, but if it was ship damage she was naturally responsible.  That was the reason he sent Captain Roberts to make the survey.
  Capt. J. P. Roberts was sworn and stated that he made the survey of which the paper shown was a report, a day or two ago.  He had made a previous survey before the goods were discharged.  He could not fix the day, but was on board the ship when the bleaching powder was discharged.  He did not see the bleaching powder on board.  No part of the iron mentioned in his survey report, and which was immediately under the bleaching powder had been touched when he made his report.  He went down between decks in company with Mr. Rogers of the Wharf.  It was previous to this that he made a survey with Mr. Warburg - either a day or two days before.  On that occasion a Chinaman, Ching Chong, who had a portion of the iron consigned to him, asked witness to go and have a look at it.  That must have been immediately after the bleaching powder was put ashore.  Witness often went on board to look at cargoes without being asked by anybody.  It was part of his profession to keep the general run of how cargoes were turned out, in the interests of the China Traders' Insurance Company and the Yangtse Insurance Company.  The iron cuttings were stowed right in the centre of the ship under the main hatch.
  Mr. Meyerink - Right under the bleaching powder.
  Mr. Wilkinson - Don't interrupt, Capt. Roberts is well able to give his own evidence.
  Mr. Meyerink asked Mr. Reding was he in order to put a question.
  The Consul replied that he could not ask just then.
  Witness resuming, said he did not see any other iron cuttings.  The iron was badly rusted, corroded.  The bleaching powder was on top of it and a great deal had leaked out on the iron through the casks breaking.  He did not see the powder, actually but there were so many casks of bleaching powder and he knew where they came from.  There may have been dunnage, mats. etc., but he himself saw bleaching powder that had leaked out on the bare iron.  He called it improper packing because the powder was packed in barrels hooped with iron.  He thought that it was improper to place the casks on anything that could be damaged. He would not have taken it into the ship at all. He would not call it improper stowage it if had been out by itself.  The gas from it is not so deleterious as contact with the substance itself.  Apart from the quality of the stuff, he could not say whether there was good stowage, because he did not see it.  If it had been flour or boxes of glass for instance it would have been a perfectly proper place to stow it.  He saw the casks after they were landed, and they were in a broken and bad condition.  He did not see them on board the ship, but saw a good deal of chloride of lime.  He did not know whether that had fallen from the casks when they were being removed, or whether from the casks which had been broken before.  It was possible that they arrived in apparently good order, but that the moment it was attempted to remove or sling them they fell to pieces.
  To the Court. - He could not tell from the look of the beaching powder whether it was fresh and just fallen from the casks.  He did not know whether it would change colour by exposure to air.
  Resuming his evidence the witness said the bleaching stuff he saw was not like powder then, but more resembled mortar, it was so saturated with moisture.  He would say that this moisture came from what was called the "sweat" of the ship, which was often very heavy in ships coming out here.  He looked for signs of leakage in the seams of the deck, but did not see any.  The vessel appeared to him to be in very good order.  He did not think the bleaching powder would give out gas if it was in a dry condition.  He had carried it himself from Glasgow to New York in large casks, casks more like hogsheads.  He had always carried it dry, except twice he thought, but that was on a comparatively short voyage.  It was so many years ago that he could not tell whether the casks were iron hooped.  It did not do any damage, but then they had no other cargo but bottled beer.  He did not see any beaching powder on the old wire ropes and he did not know where they were stowed.  He would say that the wire rope was unusually rusty.  It was in the form of a coat or crust of rust or corrosion.  He did not say that all the damage was caused by the beaching powder, and could not tell whether a portion of it was due to salt water.  The first time he went between decks he could not stay there for more than a moment, the gas was so strong, though the beaching powder was then taken out.  He heard that the powder was imported for the paper factory.
  Plaintiff - By Mr. Wm. Morrison Harvie.
  Witness, concluding, said he had never known bleaching powder carried out here in that for,.  Steamers would not take it.  As far as he knew the stowage was in every way proper except by reason of the dangerous nature of the contents of the casks.  The damage apart from that arose from improper packing and "sweat," which in connection with the powder evolved gas. Witness had tried to get chloride of lime out before for disinfecting purposes and was unable to get it except in 10 or 12 lbs. jars through Mactavish and Lehmann, which made it very expensive.
  The learned Counsel for the defence then addressed the court on behalf of his client, arguing that there was no negligence on the part of the master, o his officers, and consequently the ship was not liable for any damage that may have occurred.  He also relied upon the fact that "rust" was one of the exceptions under the bill of lading and contended that the cargo was properly stowed, and that it was the ordinary sweat of the ship which acting upon the chloride of lime evolved chlorine gas and this and not the chloride of lime itself, may have partly caused the iron to rust, and this was an occurrence which no care on the part of the master or crew could guard against.  He would show that the casks arrived in apparently good condition and the powder seen by Capt. Roberts fell out of the casks when it was attempted to remove them.  He supported his client's action in shipping the bleaching powder by putting in a piece of paper signed by the captains of a large number of steamships and sailing vessels at present in port, to the effect that they would not know that beaching powder was so dangerous a cargo, and would not infer that it contained chloride of lime from its description in the manifest as merely bleaching powder.  He would call Mr. Warburg to show that the cargo was properly stowed.
  The Court then adjourned.
18th July.
  The hearing of this suit was continued this morning.
  Carl Georg Warburg sworn said - I am a Danish subject and surveyor to Lloyd's agents at Shanghai.  I was requested by Captain Heine to survey the hatches of the Russian ship, Primus, and made the survey on the 22nd June, the day of her arrival.  I found her hatches well secured with good tarpaulin, and well battened down, and no signs of water having come through the hatches.  The report produced is my survey report.  It is correct. I visited the ship between that time and when the vessel was discharged; I visited her, daily, sometimes twice a day, until the principal part of the cargo was out.  On the 22nd June after I surveyed the hatches I went down to the hold in the presence of Captain Heine and surveyed the cargo.  It was properly stowed in every respect and well dunnaged.  I made a special survey of some bleaching powder that was there.  The bleaching powder was properly stowed.  It could not have been better stowed.  The necessary precautions had been taken to prevent it injuring the other cargo.  It was stowed amidships at the main hatch.  The casks were two tiers high, the bottom tier resting on planks about an inch and a half in height.  The casks were chocked off, so as to prevent them from moving, both on the sides and ends, and there were cases of glass between the vessel's side and the casks of bleaching powder.  Then a tier of light glass ware, chimney glasses and lamp gloves, etc., were on the top of the casks and here was nailrod iron stowed fore and abaft, between the bleaching powder and the ship.  So that the casks were entirely surrounded by cases of glass except at the bottom.  In no part was it in contact with the iron.  The casks were perfect when I looked at them, but the hoops were rusted.  The casks were so well stowed that they never moved.  The hoops were entirely rusted, but were still sufficiently strong enough to keep the casks together.  I saw the casks removed from the ship.  As soon as they attempted to remove or sling them the casks fell to pieces, the hoops being entirely gone. Eaten through. As soon as they began to handle the casks the hoops gave way though they were strong enough to hold them in position, while they were standing (Report of Survey put in and identified by witness as his.) I would attribute the casks falling to pieces to the rust on the hoops. I would say that the rust was caused by the ship making water through the waterway seam of her deck, I would say that the water got at the bleaching powder and that caused the gas to be evolved.
  To the Court - The gas will cause a certain amount of corrosion.  There were signs of salt water on the iron also. The gas will cause a corrosion quite different to that produced by fresh or salt water.
  Examination resumed - The gas would not be generated if the powder was kept dry.  Once the casks became weakened and opened the natural "sweat" of the ship would be productive of more gas, but not in the same degree as would the salt water.  When I saw the bleaching powder, it was quite moist like paint, or white lead.  I would agree with Captain Roberts that it was like mortar; it was putty-like. On short voyages the casks in which the bleaching powder was stowed might do, but I would not consider them for a long voyage, on account of their having iron hoops.
  To His Honour - My information about bleaching powder is mostly derived from reading.  I have met very few cases of it.  I know that when it is dry there is hardly any smell. But if it gets the least wet the smell is very bad.  I know that bleaching powder is a cargo that must be particularly looked after, especially in stowage.  I do not suppose this is generally known to people outside surveyors and experts, but it has been mentioned to me as a surveyor by the underwriters at home.
  Examination continued -I never heard of any serious claim arising from it before now.  I do  not know the chemical nature of it, but about fourteen years ago, I think it  was, I heard it mentioned by underwriters as being a cargo, which if it got moist would be likely to cause trouble, and give rise to claims.  I do not think its nature is generally known amongst ship masters, judging from my experience out here and at home.  Judging from the appearance of the casks when they were put on board, there would be nothing suspicious in their appearance, as they looked like the common casks in which ordinary merchandise is generally carried.  I don't think the words "bleaching powder" were painted on the casks.  If I were asked to give a name to the nature of the damage, I would certainly call it "sea damage," from every proof in that vessel.  That is speaking as a Surveyor and as Lloyd's Agent and Surveyor for Insurance companies and for an underwriter's claim. I mean by that the origin of the damage from the gas, - the damage to the iron.  There was a great portion of the iron  salt water damaged, directly, both in the upper tier of the iron, and also in the iron in the bilges from the vessel apparently going on her beam ends, and the water coming through the waterway seam.  There was also a great portion of it damaged from the gas.  I would say that both of these damages originated from sea-damage, through stress of weather.  If the sea water had not got in, there would have been no damage.
  To His Honour - Speaking from my experience of maritime affairs I would say that if the captain of the ship was paid anything extra for, or had his attention specially called to a cargo of a hundred balleys of bleaching powder, I would think that he should make some enquiries as to its nature, but not otherwise, as he would take it in good faith, unless it was described as dangerous.  If a hundred barrels of cargo described as "bleaching powder" in the bill of lading were put on board along with a valuable cargo, I would say, yes, that I would expect the captain to make some inquiry as to its nature - if he had any suspicion.
  Examination resumed - Before I became acquainted with the nature of it, bleaching powder as such would not excite my suspicions.  I have been at sea seven years as carpenter, second mate, mate, and one voyage as master.  I have been on one East India voyage, African voyages, and in the home trade.  I did not become acquainted with the nature of bleaching powder while I was at sea.  None of the damage to any of the cargo on the Primus was caused by improper or faulty stowage.  The ship was properly stowed throughout.
  His Honour - If the Captain had known, or if it was his duty to know the nature pf bleaching powder and its bad effect upon other cargo would it have been proper stowage to stow it where it was?
  Witness - It would have been proper stowage if it had been properly packed in stone jars, to stow it here.  But the packing caused the trouble.
  Examination by Counsel resumed - The damage to the iron was damage by rust.  The rust had fallen off the iron in scales.
  In answer to Mr. Bock, Capt. Heine said that the rust had been cleaned up from the floor of the hold and stored in four or five barrels which were still on deck, weighing about six or eight piculs.
  Witness resuming his evidence said - The damage did not arise from the weakness of the vessel.  In fact, she seemed an unusually strong vessel, - one of the strongest that has ever been seen here in port, and from what he could see she seemed to have been newly coppered.
  The learned Counsel for the defence produced the certificate from the Bureau Veritas, and witness, after inspecting it, said it was a genuine certificate of the vessel's soundness and would satisfy him that she had been properly surveyed.
  The certificate shewed that she was of the highest class in the Bureau Veritas and was built at Stromma in 1878.  The certificate was dated 1887.
  Report of Mr. Warbug's survey was put in evidence, stating that the damage to the iron was caused by stress of weather and not by any neglect.
  Witness in continuation, said the old wire rope was stowed under iron cuttings in the after hatch.  The nail rod iron was distributed all over the vessel, and there was some in the after hatch.
  The plaintiff in reply to the Court said, he had no questions to ask the witness.
  Captain Oscar Heine was then called and after having been sworn said - I am a Russian subject and domiciled in the Grand Duchy of Finland.  I am master of the Russian ship Primus, the vessel referred to in the petition.  She is registered at the port of Abo in Finland.  The owners are natives of and domiciled in the Grand Duchy of Finland.  I have been five years master of the Primus.  I took in a general cargo in Antwerp in October, November, and December last.  It was shipped under a charter party. [The charter party was put in evidence.] Under the charter party, it was consigned to the charterer's agents, the plaintiffs being named, and I brought a letter to them to that effect.  They received from me as commission 40 Pounds Sterling as mentioned in the charter party.  I received on board one hundred casks of bleaching powder.  I was not informed either before or after or at the time it was received in board that it was of a dangerous nature to other cargo. I did not receive any extra freight for it.  Under the charter party I was required to go to Messrs. Selb and Hubberstuhle at Antwerp to sign the bill of lading.  I there made enquiry as to the nature of the goods that were being sent on board.  The reply I received was that there were no dangerous goods sent on board to me.  It would not have been any advantage to me in the way of freight or otherwise to carry any dangerous goods.  I received a lump sum, 1,900 Pounds, for freight.  I had never carried bleaching powder before, and there was nothing in its name which suggested to me, that it was a dangerous substance, nothing more than if it had been baking powder.  There was nothing in the appearance of the casks to suggest that it was dangerous.  Before taking in the cargo the ship was in dry dock - in October. She was entirely re-metalled and caulked over.  In fact everything was done that the surveyor required, and she was thoroughly overhauled, her class being renewed for two years.  She was classed first class in the Bureau Veritas.  She was always considered a very strong ship. I have made a protest and ask that to be taken into account by the Court.
  The protest stated that the ship met unusually heavy weather from the commencement of her voyage, and that the Captain should not be held responsible for any damage to the merchandise in consequence; whatever damage was done was caused by stress of weather and by the heavy seas coming on board and getting at the cargo through the seams of the vessel.
  Witness resuming his evidence said:- After the seas came on board I immediately took every precaution, and caulked the deck on every opportunity we had after.  We tarred the deck with oil and tar after the caulking.  We had an exceptionally long voyage.  I was never so long at sea.  We were 192 days from Flushing to the wharf - longer than that from Antwerp.  I went into the hold sometimes during the voyage. I first noticed a smell of gas there about the middle of April.  We left Flushing on the 3rd December.  The gas got stronger in May and during the latter part of the voyage it was very strong, so strong that we could hardly go down.  We ventilated the hold on every opportunity we had.  I arrived at Woosung on the 19th June and I came up myself, before the ship, on the 20th June.  I saw Mr. Meyerink and for my letters.  I asked Mr. Meyerink to send a competent surveyor on board and told him about the gas.  M. Meyerink mentioned about the bleaching powder that was on board, and what a dangerous thing it as.  I did not know until them what it was caused the gas.
  As far as I know the cargo was properly stowed.  The bleaching powder casks did not move, but the hoops were so rusty hat when it was attempted to take the casks up they fell to pieces and that was how the powder fell on the iron.
  His Honour said the court would like to get Mr. Meyerink to answer the following three or four questions.
  Have you, Mr. Meyerink, or Messrs. Meyerink & Co. as agent or agents for the charterers been advised from the charterers that part of the cargo would be sent to you as agent? - Yes.
  How long before the arrival of the ship? - Long before the ship arrived.
  How long? - At least a month.
  You received a copy of the manifest? - Yes.
  A full copy of the manifest? - Yes.
  Was there anything in the manifest calling particular notice to the bleaching powder? - Yes, notice about the bleaching powder.
  Any particular notice? - It said merchandise, merchandise and so on; then there was a notice about the bleaching powder.
  In answer to further questions Mr. Meyerink said the words bleaching powder were not underlined.  There was nothing in the letter as to the captain being recommended to take particular care about the bleaching powder.  Nor did the charterers in their letter say anything to the effect that they hoped the cargo would be delivered in good order, that they hoped the bleaching powder would come safely without damaging any of the other cargo.  He was of opinion that the charterers would know about the bleaching powder, and that ships were unwilling to carry it.  He could produce the letter to him from the charter party.
  Captain Heine in reply to a question by M. Bock said that he had received a gratuity of 12 or 15 Pounds when the ship was loaded, - the usual little  gratuity to Captains.
  M. Bock - That is what they call a new hat.
  Mr. Wilkinson then briefly addressed the court for the defence, arguing that the damage was due to stress of weather; the cargo was properly stowed, and even if the Captain had been guilty of negligence in stowing the cargo improperly the ship was exonerated under the bill of lading - in which damage by rust was also an exception; and he submitted, that to make the master liable it was necessary to show that there was improper stowage and that the rust was occasioned by his improper stowage.  The burden of proof rested on the owners of the cargo; and he submitted that they had failed to prove these things, while the evidence went to show that the stowage as properly carried out.
   Mr. Meyerink in reply submitted that the defence had not been able to contradict the dangerous character of bleaching powder, and its tendency to damage, by contact and evaporation, other cargo during a voyage of six months.  He further submitted that bleaching powder did not come under the description of lawful merchandise if packed in the way in which it was shipped by the Primus.  He argued that it was against all rules of stowing and loading cargoes to mix lawful and unlawful merchandise, as in the Primus, and that even if I had not been necessary for Captain Heime to know the dangerous nature of the goods he signed bills of lading for, he still remained liable to make good all losses in China caused by his action, and that it was left to him to look for a redress to the shippers at home.
  As to the statement of the captains of several steamers and sailing vessels here in port, plaintiff submitted it to be valueless, the question not being a nautical one.  Nor did it appear that even a single captain had taken the trouble to convince himself personally about the damage done, and lastly, he submitted that the bleaching powder was simply chloride of lime.
  The Court reserved judgment, there being some similar cases down for hearing for tomorrow.


Source: North China Herald, 21 July 1888

Shanghai, 19th July
Before J. E. REDING, Esq., Consul for Russia, Mr. CARL BOCK, Consul for Sweden and Norway and BARON GUNSBURG. Assessors.
  This case which arose out of a similar claim to that in Meyerink v. Heine, reported yesterday and Wednesday, was heard this morning.
  Mr. R. E. Wainewright appeared for the plaintiff; Mr. H. S. Wilkinson, as before, appeared for the defendant.
  His Honour said - According to the treaty between Russia and China matters that concern Chinese subjects, as in his case, are investigated in the presence of a Chinese official.
  M. Wainewright in opening the case for the plaintiff said that the claims arose out of a certain contract entered into with the Captain of the Russian ship Primus, by which he acknowledged that he received certain iron on board in good order and condition, and which he undertook to deliver in like good order in Shanghai, unless prevented by certain specified causes named in the bill of lading.  He did not know whether it was necessary for him (Mr. Wainewright) to cite authorities in support of this, which he thought would be admitted.  In the contention he relied not on Russian law, of which he undoubtedly knew nothing, but on English and American law, that it was the duty of the master of the ship to deliver the cargo in the same order as he received it, unless prevented by something which excepted him so doing.  In this case they did not seek to enforce a lien on the ship in the sense of Admiralty proceedings.  He quoted from Carver on Carriage by Sea, par. 96, page 102, to show that prima facie the Captain was liable for every damage to the goods from the time they were shipped.  That being so, the first question was whether those goods were delivered in good order and condition, on which point evidence would be given.  The next question was how were the bad order and damage - if it is held to be bad order - sustained or caused.  The question would be between sea damage and the action of the bleaching powder, and most of the facts were already before the Court. A further question was whether the damage was caused by any of these things which the Captain had guarded himself against, or was it caused by any of the exceptions amongst perils of the sea.  
  For his purposes it was unnecessary to go into the question whether the Captain did or did not know that the bleaching powder was dangerous; if the bleaching powder caused the damage the ship would be liable, and it would be very important for the Captain as between him and the shippers of the powder who did not disclose its dangerous mature to other goods.  That was a matter between themselves.
  (The Taotai and his interpreter both in canary coloured robed arrived during this stage of the case and introduced a little bright colour into the Court.)
  Mr. Wainewright continuing his remarks quoted the case before mentioned namely that of Brass v Maitland 26 L.J. Q.B. p. 49 in support of his contention, a case in which the shippers were held liable for the damage in a somewhat similar case.  After reading the exceptions under the bill of lading, which was of usual nature, the exceptions being Act of God, piracy, etc., Mr. Wainewright said that he held that the damage in the present case was not in any way the result of sea damage and not excepted in any way under the bill of lading.  He submitted that the iron suffered from rust and decay, owing to improper stowage.  He then proceeded to prove the ownership of the goods.
  The amount of Shin Chong's claim was Tls. 2,125 and of Koo Su's (commonly known as Coutts) Tls. 304.
  Mr. Wainewright then called,
  Mr. Meyerink who identified the bills of lading as those sent to him by the shippers.  He signed the bills of lading to Shing Chong on the 27th December last.  He was bound to take the cargo - damage for the buyer.
  Mr. Wainewright - That is he took the risk of damage.
  Witness - The plaintiff Shing Chong had paid for the iron, since the arrival of the ship.  Witness endorsed the bills pf adding only.  To the best of witness's knowledge Shing Chong is the owner of the iron.  The bill of lading was endorsed after the payment for the iron.  Witness had had much experience with iron.  He had seen the iron in the present case.  He had also seen part of the other 10,000 bundles of iron which belonged to Koo Su. It was damaged by bleaching powder, in his opinion.  The rust was quite different to the rust produced by sea water.  Witness took a small portion of the nail rod iron and it broke like glass; it did not usually break that way.  He would say he damage would be about from 10 to 20 per cent per picul in some cases.  The iron belonging to Koo Su was not of the same kind, he did no test that iron in the same way.
  Cross-examined - In estimating the damage at 10 per cent, he had seen the iron in the wharf and looked it all over.  He could only judge from the outside of the piles.
  To the court - When witness delivered the iron to Shing Chong the latter knew at once that it had been damaged by bleaching powder.  The sale was made "damage for the buyer" and he had to pay before he got the iron.  Witness had no private agreement with Shing Chong that if latter did not recover damages from the ship, he would recover at me.  The shippers of the iron had not drawn upon witness for the money which he received from Shing Chong on the 11th inst.  The bill was due on the 22nd inst. It would be sent home by the next mail.
  Cross-examined - The duty has not been paid on the iron.  Witness had to pay it, and would do so as soon as the matter was settled.  The price at which it was sold included the duty.  He had not paid it before because he wanted to have the matter settled first.  He did not think that his failure to pay the duty had caused the detention of the ship.  He knew nothing about what duty had been paid. He had not paid any duty on his own lot.  Koo Su's lot had not been consigned to him.  He intended not to pay the duty until the claims with the ship had been settled, otherwise the ship might go away without coming to any settlement.
  Mr. Wilkinson - Then I apply that Mr. Meyerink and the other defendant be ordered to lodge the amount in Court to cover the duty.
  Mr. Wainewright - But my client Shing Ching has already paid the duty on his iron in the price he paid for it.
  His Honour - Yes, Mr. Wainewright, but the duty has not been paid to the Customs House.
  Mr. Wainewright - But even so, you cannot saddle my client for the duty which he had already paid.
  His Honour - There is a duty amounting to several hundred taels at least unpaid.
  Mr. Wainewright - And which my client has paid.
  His Honour - Even if this case goes against you, you must pay several hundred taels duty.
  Mr. Wainewright - But my client, I say, has nothing whatever to do with that. He has paid Mr. Meyerink and he cannot compel Mr. Meyerink to pay that duty.
  Mr. Wilkinson said that Mr. Wainewright's client had no only taken over his rights in this matter between himself and Mr. Meyerink, but he had taken over the responsibilities under the bill of lading as well.
  Mr. Wainewright - This is all mere assertion, it is not supported in any way so far.
  Mr. Meyerink - You asked why I did not pay the duty at once.  It was because the things were damaged, and the whole thing has to be assessed.  Otherwise the duty would have been paid at once.
  His Honour - How much is the duty on this iron?
  Mr. Meyerink - I don't know.
  His Honour - But you have to know.
   M. Meyerink - About 12 ½ Haikwan taels cents per picul.
  Hs Honour - And how many piculs have been consigned to you?
  Mr. Meyerink - Eleven thousand, seven hundred and sixty piculs.
  His Honour - Under all the bills of lading.
  Mr. Meyerink - I have nothing to do with that.  The reason the duty was not paid at once or in the usual time is that the iron was damaged, and because the damage has to be assessed by the Custom House.
  Mr. Wilkinson - Have you applied to the Custom House to assess the damage?
  Mr. Meyerink - I believe that it will be all right today.  Everything will be settled today, and all paid.
  His Honour - Well I wish to have the duty paid at once on all this iron - in fact upon all the goods that have been imported by the ship - before I can go on with this case.
  Mr. Wainewright - My client has paid the duty, but he has no control whatever over Mr. Meyerink.
  Hs Honour requested Mr. Wainewright not to make any remarks which were outside the question.  His client had contracted, under certain conditions, to take this iron.  One of these conditions was that the duty should be paid, and surely his client should have arranged to have the duty paid.  If not, he would have to suffer for it, if the ship had been detained by Mr. Meyerink's not paying the duty - he (Mr. Reding) did not know for how long, and somebody would have to pay for the demurrage.
  Mr. Wainewright - My client had paid all the money and had nothing more to pay; what possible pressure could he bring on Mr. Meyerink.
  His Honour - The only thing then is to bring him into Court.
  Mr. Wainewright - What! For a third party's duty.  Suppose there were other consignments, say of chemicals, on board, would he have to pay for them?
  His Honour - Mr. Meyerink must settle for all the duties on the ship.
  Mr. Meyerink - I guarantee that all will be settled.
  M. Wainewright - My client has nothing to do with any of that.
  His Honour - The ship is threatened with detention because of some arrangement with Mr. Meyerink, which is apparently beyond the control of the Court. We must certainly have security here to guarantee the ship, and you must deposit the necessary amount in Court to guarantee the ship against detention.  And that a Russian ship should be threatened with detention by the Chinese authorities, because the duty has not been paid, is not fair to her.
  Mr. Wanewright - If she were not a Russian ship we would have been able to detain her.
  Mr. Wilkinson - What!  without depositing security?
  Mr. Wainewright - We would not mind that in the least.
  Mr. Wilkinson - That is what we would have been able to get in an English Court.
  His Honour, after consultation with the Assessors - We want to have things finished.  I have perfect faith in Mr. Meyerink, but we do not want to have the case going on like this, we wish to have the thing in hand without any further dispute.
  Mr. Wainewright - I shall certainly not advise my client to pay the duty twice over.
  His Honour - That may be, but the duty has to be paid.  I will note down that I have given you notice to deposit the amount.
  Mr. Wainewright - If the duty on the iron in which I am concerned is paid, surely that is all you want of me.
  His Honour - Yes, if the duty is paid.
  Mr. Wainewright - There is surely no reason for depositing the money if the duty is paid.  My witnesses are here and I am ready to go on with the case.
  Mr. Wilkinson said that Mr. Meyerink's case was still before the court.
  Mf. Wainewright - Is Mr. Meyerink's case before the court again?
  Mr. Wilkinson - I will make an application bring it before the Court.
 His Honour said he thought it was very unfair to the ship to expect the case to go on until the duty was paid.
  Mr. Wilkinson said the difficulty could be very easily settled by Mr. Meyerink depositing the full amount of the duty and he could get back whatever was over.
  Mr. Meyerink - I will guarantee the duty.
  Hi Honour - Well, until the Court receives substantial guarantee for demmurage to the ship the Court cannot go on.
  Mr. Wainwright - If the duty is paid or deposited in the course of the day will the case go on again tomorrow morning?
  The Court - Yes.
  Mr. Wilkinson - The only thing is that by their not paying the duty we are already detained.
  Mr. Wainewright - Why do you use the word "their?
  Mr. Wilkinson said he used the word "their" because a private arrangement between Mr. Wainwright's client and Mr. Meyerink did not affect the case.  Shing Chong could not take over the rights of the bill of lading without talking over the responsibility.  He (Counsel) would ask the court to make an order that the duty should be [aid before four 'clock today.
  M. Meyerink said he might be prevented by something or other from paying the duty by four o'clock.  For instance the Custom House might not be ready to receive the duty.  He asked to be given till four o'clock tomorrow.
  His Honour said - The Court decides that you shall pay the duty by four o'clock today, and if you fail to do so, that you pay demmurrage for every day the hip is detained in consequence at 15 or 20 Pounds per day,  whatever is named on the charter.  If you fail to pay the duty by four o'clock tomorrow the cases will be dismissed.
  Mr. Wainewright - My case?
  Mr. Wilkinson - I will ask that both cases b dismissed if the duty is not paid.  It lies with Mr. Wainewright to say whether this will be carried out.  I will not ask for a dismissal in his case if he does his part and his client pays the duty on his portion of the iron.
  Mr. Waimewright said that Koo Su had paid the duty on his iron therefore his case would remain.
  After some further argument, Mr. Meyerink guaranteed that the duty would be paid by four o'clock.
  His Honour said in that case the hearing would be resumed at 10 o'clock in the morning, but Mr. Wilkinson consenting for the sake of saving time to proceed with the case subject to the agreement as to the payment of the duty, it was agreed that the case should be continued at 2 o'clock,. Mr. Wainewright acquiescing in this arrangement.
  After the adjournment Mr. Wainewright called
  Mr. Th. Meyer, a German subject who was sworn and examined by Mr. Wainewright and deposed that he represented the firm Aug. Ehlers.   Little time ago he sold 10,000 bundles of nailrod iron to Koo Su.  The contract was dated the 23rd June, after the ship had arrived and before a single bundle of iron had been discharged.  The contract said that Aug. Ehlers was to pay the duty, the Chinaman taking the risk of all damage.  Witness produced the bills of lading.  Koo Su had paid for the iron, otherwise he could not have got the bills of lading which were endorsed over to him.  When witness sold the iron he did not know it was damaged beyond the usual amount.  Witness had seen the iron, but he did not know very much about iron. He knew it was very rusty, but thought it was only the usual damage.  The note at the foot of the contract means that the ship's agent was responsible for the damage.  Witness was to collect those and by agreement with Koo Su was to get one third of the amount recovered for his trouble.  The note was cancelled because witness found he would have to go into Court about the damage, and as soon as he got his money and the business was settled with the Chinaman, witness wrote the word "Cancelled" cross the note.  That was yesterday or the day before.  To the best of his knowledge and belief the iron now belongs to Koo Su.  Witness had no interest now whatever in it and had paid the money which he received on the 11th of the month, into the Bank.  He had received two payments - the usual bank order - on a native bank.  The bank order was due on the 28th of this month.
  To His Honour - I don't know if Koo Su saw the iron before he purchased it.  I sold it direct to him.  He came to our office, several men came and he made the best offer.  That was on the date of the contract, the 23rd June.
  Cross-examined by Mr. Wilkinson - The ship made a very long voyage.  I cannot say whether I would expect iron to be more rusty after a long voyage.  It is always rusty.  In fixing the price of this iron I took into account the long voyage, not account of possible rust but for other reasons.  It was not an exceptionally low price.
  The contract book showing the transaction and the price was handed to the court, but the witness said he wanted it to be kept private, and Mr. Wilkinson said he had no desire to make it public.
  Cross-examination of witness resumed.  The price stated in the book was the best price he could get at the time.  The iron was of inferior quality.  The letter (produced) is simply a demand made by witness on Captain Heime for Tls. 504, and which is now preferred by Mr. Koo Su.
  Re-examined by Mr. Wainewright - I made the demand in this letter on account of Koo Su.  If the Captain had paid it I would have given Koo Su two-thirds and kept one-third for myself as commission.
 Mr. Wilkinson - The fact is Mr. Koo Su purchased a law suit.
  His Honour - The Court wishes to have an explanation from Mr. Meyerink of certain entries in his book, in the account of the buyer of the iron.  Why the note is below Shing Chong's signature. (To Mr. Meyerink) Can you explain how it is that his entry does not appear to be written at the same time as the other? The ink with which the contract is written is not the same as the entry stipulating that all damage will be at the risk of the purchaser which is written in a lighter coloured ink than the contract which is in a dark coloured ink?
  Mr. Meyerink said they were both written at the same time.  He was on his oath and conscious of the consequences.
  Hs Honour said he only asked because it appeared to be so to the Court.
  Mr. Bock - Was it written at the same time?
  Mr. Meyerink - It was written at the same time, - when the contract was shown to the Chinaman.
  His Honour - I understand you to declare that he words to which you refer were written at the same time as the contract?
  Mr. Meyerink - Most decidedly.
  His Honour - We have nothing more to detain you for Mr. Meyerink.
  Mr. Wainewright - Perhaps you might tell the Court that all the duties are paid.
  Mr. Meyerink - Yes all the duties are paid.
  The Captain produced the Customs paper showing that the duty had been paid by Meyerink & Co. that afternoon and that they amounted in all to over sixteen hundred taels.
  Mr. R. W. Such was called and examined by Mr. Wainrweight, stated that he was a British subject and connected with the firm of W. Hewett & Co.  He had an experience of 8 years here and 4 at home in the nailrod iron business.  On Saturday last witness and Mr. Lucke, a gentleman connected with the firm of Melchers & Co., surveyed the nail-rod iron, and made the report (produced) on the subject.
  The report was read and stated that the iron was encrusted with scales of rust, rough to the touch and of various thickness.  He gave it as his opinion that the damage was due to some chemical agent, and that the iron was not saleable as sound merchandise.
  Witness resuming his evidence, said he had frequently seen iron damaged by sea water.  The damage to the iron in the present case was different.  The colour of the rust by sea water damage is a peculiar tint which witness or anyone acquainted with it could easily recognise.  The rust in the present case was not anything approaching that colour.  He could not compare the degree of damage to iron by sea water with that in the present case, because in the case of damage by sea water the iron was covered with rust, and in the case of the iron injured by chemicals there was a corrosion.  Rust eats away iron, but in this case the size of the bars was increased by the growth of an excrescence.  This was not inferior iron, with the exception of ten thousand bundles.  He could not say that Koo Su's iron was rendered more brittle by the damage than Shing Chong's.  He had never known sound iron of the commonest description of Belgian to break so readily as this.  The pieces he broke were here-eighths of an inch to half an inch thick.  Witness never saw any nailrod iron similar in appearance to that produced, but neither had he ever seen any nailrod iron that had been attacked by bleaching powder.  The iron was piled up in haps of about nine hundred bundles.  He could see the ends of all the bundles which were piled crossways, but could not see the centres.  He should say that in every heap there was not five per cent of sound iron; of course some were damaged much more than others.
  Mr. Wainewright - Shing Chong claims for 20,000 bundles out of 28,000.  Should you say that was reasonable?
  Witness - Yes, very reasonable.
  Mr. Wainwright - The other plaintiff Koo Su claims for six thousand out of ten thousand.  Is that a reasonable claim? Yes, a very fair claim.
  Witness said that he should say Shing Chong's iron was worth Tls. 2 ¼ per picul at first.  It was generally sold by chop and witness would say twenty per cent off all round would be fair.  Koo Su's was an inferior iron and witness would say worth about two taels.  He was fairly convinced that there was no sea-water rust on the iron produced.  He put the lighter colour rust down to moisture produced by the bleaching powder, and the other to the gas evolved by the same agency.  The reason the colour of the rust approached that of sea water, was, he took it, that rhere was salt in the atmosphere moistened by the bleaching powder.
  The Tai-t'ai, who seemed to take a great and sudden interest in the proceedings when the damaged iron was produced, set to work to examine it minutely, and after a time through his interpreter said that he had had twenty years of experience of iron in the Arsenal, and gave it as his opinion that the rust on that produced was no caused by seawater, but by some chemical or acid.
  Witness continuing - It would have to be very bad sea water damage to injure the fibre of the iron.  He would say that the iron was damaged from end to end, but he did not undo any of the bundles.  His estimate of the amount of the damage was based on the assumption that the damage extended inside in the same degree as on the outside of the bundles, for he had no reason to suppose that the bundles were stored in any peculiar way.
  Captain Roberts was then recalled and repeated his evidence.  The only new points were that he said he never knew of hoops being eaten through by sea water.  He had recovered treasure in boxes bound with iron hoops, which had been under the sea for three and a half years, and the hoops were in tolerably good condition.  Mr. Warburg had agreed with him in the present case that the damage had been done by bleaching powder.
  The Court then adjourned till tomorrow morning.


Source: North China Herald, 27 July 1888


Shanghai, 20th July.

Before J. E. Reding, Esq., Consul for Russia, Mr. Carl Bock, Consul for Sweden and Norway and Baron Gunsburg, Assessors and The Taotai of Shanghai and Interpreter.



   Mr. R. E. Wainwright appeared for the plaintiffs; Mr. H. S. Wilkinson, as before, appeared for the defendant.

   Hearing of this case was continued today.

.  .  .  the Court reserved its decision till Monday.

23rd July.




   The first was a claim against Capt. Heine, Master of the Russian ship Primus, for $897.56 for  damage done to a quantity of iron, and old iron wire consigned to the plaintiff who carries on business in Shanghai.

   Mr. H. S. Wilkinson appeared for the defendant, the first plaintiff conducting his own case.

   The two latter were claims by purchasers of Nail-rod iron ex Primus, for damage done to their respective parcels.

   .  .  . 

Judgment was delivered in the three cases this afternoon.

   After some delay pending the arrival of the Tao-t'ai,

   His Honour read the judgment of the court which was as follows:-

   We maintain the damages have not originated with the captain or his crew.  In the first instance the shippers of the cargo or their Agents loading the vessel in Antwerp should have informed the captain of the nature of Bleaching Powder, as they must have known the composition of the article.  Capt. Heine made enquiries from the Agents of the nature of the goods in Antwerp that were being sent on board, and received the reply "there were no dangerous cargo shipped."

   The shippers have also used the most innocent name of the two - it being nearly always shipped as "Chloride of Lime" - further the shippers knowing full well what Bleaching Powder is - it was their duty at the very least to have it packed in the ordinary way for long voyages - namely in "jars hermetically sealed packed again in casks." There is a case on record - that a shipper in Antwerp offered a Norwegian Captain Bleaching Powder as freight, but his suspicion was aroused by them offering him double freight if he would take same.  He ascertained its nature and declined.  He was chartered at so much per ton, whereas the Primus was chartered, "lump sum" thus it would be easy for the shipper to take advantage of the captain's ignorance of the nature of the goods. Again the gratuity Capt. Heine received is nothing but the ordinary sum on such big charters.

   According to Finland law, Paragraphs 85 and 86, translated says that:

If the Charterer loads gods, which are forbidden for export from port of departure or import at the port of destination, or otherwise transgresses the general regulations, and thereby cause delay or other damage he is bound to make good the loss. He has also to pay full freight though the goods be seized.  If he is in good faith and has correctly and completely described to the Master the goods he is clear from such compensation.

   The Bill of Lading may be made out to the shipper, or other certain person or their orders, and shall specify:-

   The master; the name of the vessel and place to which she belongs; the shipper and the receiver of cargo; the places of loading and destination; the cargo as to quality, weight, nature and marks; the stipulated freight; the date and place of issue; number of copies, and more especially shall such gods as are subject to be a danger be carefully described by the shipper (#85.)

   The cargo was properly stowed and well dunnaged in Antwerp for the longest of voyages, as Mr. Warburg has stated in his cross-examination; so compact even that the barrels fell to pieces when being taken out, and the Bills of Lading all containing the usual clauses printed such as:- The ship is not liable for leakage, breakage, loss or damage by heat, sweat, rust or delay, unless occasioned by improper stowage.  If any goods of dangerous nature are shipped without being previously arranged for, they are liable to be thrown overboard and their loss, as well as any loss or damage to the ship or cargo will fall upon the shipper or owners of such goods. There was no occasion for the Captain to make any annotations to such effect on the Bill of Lading, as otherwise the Finland Law prescribes.

   It is further proved by the log of the Primus that she experienced very bad weather on the voyage - he ship making water - so that for several days he carpenter and one or two sailors had to caulk, tar and oil the deck. 

   WE are also of the opinion that the damage to the iron arose from two causes, first, the action of the seawater on the iron, and secondly the gases evaporating from the barrels of bleaching powder in contact with the atmosphere of sweat in the hold of the ship. Both these causes come within the rule of the exceptions mentioned in the Bills of Lading - likewise under the Maritime Law for Finland ##85, 88 as before quoted and ##89 and 114.

   Paragraph 89 says:- Should the Master discover any effect with the goods when loading, such as deterioration, damaged, the exterior covering imperfect; or if he has received goods without measuring, weighing or tally; or in packages, cases or casks, as at the counts are not known, he should, to free himself from responsibility, make an annotation to such effect on the Bill of Lading.

   Paragraph 114 says:- If packed goods are missing as to quantity, number, or marks, or of it is broken and the contents removed, or if there is short delivery of goods according to weight measure, exceeding the probable result of their own perishable nature, or if the goods have otherwise suffered damage, the Master shall, unless he had signed the Bill of Lading, with the remark stated in #89, or through Protest, or the ship's Log-book, show that loss or damage has been occasioned by some accident in the course of the voyage, which it was not in the power of himself or his crew to prevent, be responsible.

   It is further our opinion that the consignees of the iron or plaintiffs here in Shanghai must seek redress for damages from the shippers of the cargo in Antwerp, but neither the captain nor the crew of the Primus are in any way responsible for losses, damage or deterioration in value occasioned to the iron.  The costs of the suit must be paid by the plaintiff.

Carl Bock, Consul for Sweden and Norway.

Baron Gabriel Gunsburg.

   I hereby put on record that I disagree with the decision of the majority of the Court.

J. E. EDING, Imperial Russian Consul.

   His Honour having read the judgment said that if the parties were not satisfied with the judgment they could appeal to the Minister in Peking, notice of the intention to appeal to be given within fifteen days, Mr. Wainewright could send the appeal direct to Peking if he wished, but he should also notify the consulate.

   Mr. Wainewright asked was here any particular form of appeal; Would it be a petition of appeal with one argument attached to it?

   Hs Honour said there was no particular form as far as he could see.

   In reply to a request by Mr. Wainewright, His Honour said he could get a copy of the notes in the case.

   Mr. Wainewright asked did costs mean only costs of Court, or did it include Lawyers' fees.

   Hs Honour said that he supposed the English scale of lawyers' fees would govern the present case.

   Mr. Wainewright said that there was a scale made for the English court here, but it was not generally used in England.  In some of the Courts here, the American, for instance, there were no lawyers' fees allowed, - only the court fees.

  Mr. Wilkinson said that lawyers' fees were allowed in the German Courts.

   Mr. Wainewright thought it was only fair that lawyers' fees should be allowed.

   The matter then dropped and His Honour in reply to Mr. Wilkinson sad that when Mr. Wainewright lodged his petition of appeal it would be communicated to the defendant, Capt. Heine, who would then send in his answer as soon as possible.

   The Court then adjourned.


Source: North China Herald, 27 July 1888

A LARGE space has been taken up in our columns in the last few days by the report of a series of cases which seem, to the ordinary reader the most remarkable development of justice ever seen in Shanghai.  The peculiarities of the cases are so many that we may be doing an injustice to the court in question in charactetising its proceedings as we have done.  A ship belonging to Finland, but, Finland being a dependency of Russia, flying the Russian flag, arrives here with a mixed cargo from Antwerp, after an unusually long voyage; but here is  no imputation whatever on the character of the ship, the Primus, or of her master, Mr. Heine. A large part of her cargo consists of iron, and on this iron is stowed a large parcel of chloride of lime, more euphoniously known, and described to the captain, as  bleaching powder. This chloride of lime is known to be so  dangerous to any other cargo with which it may be shipped, that English vessels will not take it at all unless it is packed in earthenware jars hermetically sealed, and so stowed that it can be readily thrown overboard if necessary, the shipper taking the risk of this necessity.  The chloride taken from the Primus was in casks with iron hoops, and it proved its character by eating through the hoops on the voyage, so that the casks fell to pieces when it was attempted to remove them from the vessel.
  There was absolutely no question that the iron owned by the various plaintiffs, and brought out in the vessel was damaged by the gas evolved on the voyage from these casks of chloride.  The experts called, having had no experience hitherto of the effect of chlorine gas could only say, and the Taotai who offered himself as an expert agreed with them, that the iron was very much more rusted than it could have been by sea water, and therefore must have been attacked by the so-called bleaching powder; and the captain himself owned that towards the end of his voyage the smell of gas was so overpowering, that he could not go down into the hold of his ship.  
  The consignees of the cargo bought claims against the ship for the damage to their iron, and these claims formed the subject of the recent trials, judgment in which was given on Monday.  The extraterritoriality which prevails in China demands that a claim against a Russian ship shall be tried in a Russian Court, and it was no easy matter to institute such a Court here.  The Russian Consul was of course the Judge, and he, as being the agent of an English Marine Insurance company, is necessarily conversant with English maritime law.  He had to find two assessors, who, of course, should be Russian subjects.  Only one was available, Baron Gunsburg, a gentleman who happens to be visiting Shanghai, who is, we believe, a civil engineer by profession, but who is much interested in commercial matters.  To find another Russian subject appears to have been impossible, and accordingly Mr. Reding, the Russian Consul, invited his colleague Mr. Carl Bock, the Consul for Sweden and Norway, who was presumably more or less conversant with the laws of Finland.
  There can be no question that by the laws of most maritime nations, in such a case as this, the ship is primarily responsible to the consignees of damaged cargo.  The shippers of honest cargo trust their goods to the ship, and the captain is bound, with certain exceptions, to deliver their cargo at destination in the like good order and condition in which he received it.  This is perfectly reasonable. One shipper in a general ship cannot know, or even if he should know, cannot interfere with what another shipper is sending; it is obviously the duty of the Captain to see that no dangerous cargo is put in his vessel.  If he, by ignorance or carelessness - and there is no accusation of carelessness in the present case - takes in improper goods, he and his owners must bear the brunt of it.  They have their remedy against the shipper; but it is obviously unfair for the ship to disclaim this responsibility and refer the innocent sufferer to the guilty shipper. The Captain is, no doubt, equally innocent; but he must suffer primarily, because he was in a position to refuse the dangerous cargo, and the innocent shipper was not.
  The judgment of the Court, which we printed yesterday morning, exonerates the ship altogether; we cannot say that it has astonished anyone who has followed the course of the trials; but it is for all that an amazing judgment. The ground on which the Captain is exonerated is, that he did not know that bleaching powder was dangerous, and that the agent told him that "there were no dangerous cargo shipped." Surely, if the Captain chooses to take the agent's word, and makes no enquiries as to the composition of bleaching powder, he is responsible? The extracts from the Law of Finland which are paraded in the judgment do not seem to us to help the captain, vis-a-vis the innocent shippers, in the least.  All they amount to is, that certain precautions on the Captain's part will protect him against the shippers of dangerous cargo; and that these latter will be responsible, if they have mis-described their shipment, for all damage done; but there is no evidence that the  dangerous cargo in the present case was mis-described when it was called bleaching powder.
  Astonishment reaches its climax when we find appended to the judgment the following protest:-
  "I hereby put on record that I disagree with the decision of the majority of the court.
J. Reding, Imperial Russian Consul."
  Mr. Reding was the judge of the court, and Mr. Bock and Baron Gunsburg were his assessors.  The ordinary theory of assessors is, that they are there to advise the Judge, but that the Judge is responsible for the judgment; we can only presume that by the law of Finland, the powers of Judge and Assessors are equal, and the majority rules.  It is the more amusing because, as we pointed out before, Mr. Reding is the only member of the Court who is especially conversant with Maritime Law.

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