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Colonial Cases

Shing Chong v. Heine, 1888


Shing Chong v. Heine

Russian Consular Court, Shanghai
Reding, 20 July 1888
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.

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