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Colonial Cases

China Shippers Mutual Steam Navigation Co. Ltd v. Ilbert and Co., 1889



China Shippers' Mutual Steam Navigation Co. Ltd v. Ilbert and Co.

Supreme Court for China and Japan

Rennie CJ, 23 July 1889

Source: North China Herald, 27 July 1889




Shanghai, 23rd July 1889

Before Sir. R. T. Rennie, Chief Justice.




   In this case plaintiffs claimed for freight earned by their steamer the Chingwo.  The defendant admit that they have not paid the freight but set up a counter-claim for damages for cargo shut out by the steamer Oopack.

   Mr. Wainewright for plaintiffs.

   Mr. Drummond for defendants.

   The plaintiffs' petition is as follows:-

  1. - The plaintiffs are a Company incorporated under the English Joint Stock Companies Act and carrying on business in, amongst other places, Shanghai, and the defendants are British subjects and carry on business in Shanghai as merchants and auctioneers.
  2. - In December 1888 the defendants caused to be shipped on board the plaintiffs' steamship Chingwo 849 bales of raw cotton, and the Master of the said steamship then received the same to be carried to Yokohama in Japan upon the terms contained in Bills of Lading then signed by the said Master the terms whereof so far as is material were as follows:-

   "Shipped in apparent good order and condition by Messrs. Ilbert & Co. in and upon the China Shippers' Mutual Steam Navigation Co.'s steamship called the Chingwo whereof MacHugh is commander for this present voyage 849 bales of raw cotton to be delivered" (subject to certain risks and perils which are not material in the action) "in the like apparent god order and condition at the port of Yokohama unto order or to his or their assigns freight for the said goods at the rate of 60 dollar cents per picul being paid in Shanghai."

  1. - The said Bills of Lading were signed by W. A. Gulland as agent for and with the authority of the plaintiffs the owners of the said steamship.
  2. - The said cotton was afterwards in accordance with the said bills of lading delivered in good order and condition in the port of Yokohama to the defendants' consignees who duly presented the first of the said bills of lading.
  3. - The defendants have not pad the said freight and there is now due from and payable by the defendants to the plaintiffs the sum of Tls. 305.64 in respect thereof.

The plaintiffs therefore pray:-

  1. - That the defendants may be ordered to pay to the plaintiffs forthwith the sum of Tls. 305.64, together with the costs of suit.
  2. - That the plaintiffs may have such further and other relief as the nature of the case may require.

(Signed) R. E. WAINEWRIGHT, Counsel for plaintiffs.

  The answer of Messrs. Ilbert and Company, the above named defendants, shows as follows:-

  1. - The defendants admit the statements in the first paragraph of the petition.
  2. - The defendants admit that they shipped in the plaintiff's steamship Chingwo 839 bales of raw cotton to be carried from Shanghai to Yokohama as alleged in the second paragraph of the said petition, but in reference to the terms upon which the said bales of cotton were to be carried they ask leave to refer to the said bills of lading in the second paragraph of the petition mentioned when the same shall be produced by the plaintiffs.
  3. - The defendants admit the statements contained in the third and fourth paragraphs of the said petition.
  4. - The defendants say that the sum claimed in the fifth paragraph of the said petition is erroneously stated as Tls. 305.64 whereas the amount should be stated as dollars 305.64 which at exchange 73 is equal to Tls. 223.12.  And the defendants admit that they have not paid the said sum of Dollars 305.64 or the equivalent sum of Tls. 223.12, but they further say that they are not indebted to the plaintiffs in any larger sum than Tls. 112.89 for the reasons hereafter in the counterclaim set forth, and the defendants bring into Court the said sum of Tls. 112.89, and say that that sum is enough to satisfy the plaintiffs' claim.
  5. - And for a further defence by way of counter-claim or set-off the defendants say that they have suffered damage by the plaintiffs' breach of contract to carry 1,000 bales of cotton from Shanghai to Yokohama by the steamship Oopack by reason of the plaintiffs having shut out and refused to carry the said 1,000 bales or any part thereof, and further damage by the plaintiffs' breach of a contract  for the carriage of the said 1,000 bales of cotton by the steamship Chingwo by reason of the plaintiffs having shut out and refused to carry 151 bales being part of the said 1,000 bales.


Particulars of the damages


Colie hire examining by Customs 1,000 bales examined twice



Coolie hire examining by Customs 151 bales examined twice


Godown rent 1 month on 1,000 Bales at 6 candareens


Godown rent 2 months on 151 bales at 6 candareens





Interest 26th Nov. to 24th Dec., 28 days in Tls. 5,964 at 7 per cent


Interest on Tls. 898.50, 3 days at7 per cent


Fire Insurance 1 month in Tls. 5,964 at 1/16 per cent


Loss and Rebate of 5 per cent on freight on Tls. 90.60, 151 bales being shipped in the Tokio Maru





[Not transcribed.]

   His Lordship, after hearing Mr. Drummond shortly in reply, said that in all such contracts as the one now in question there was an understanding that the shipper or the passenger as the case might be should produce either himself or his freight in such a reasonable time as will enable the carrier to perform his part of the contract, with due regard to his obligations to other parties.  In the present case, Mr. Walker should have known whether or not he could get his cargo ready in time, knowing as he did when the ship was to sail.  The question is whether 11 or a quarter past on the morning of the day when the ship was to sail at 1 o'clock can be said to be a reasonable time at which to produce 1,000 bales of cotton for shipment under the circumstances.  There would have to be a strong and clear case against the ship owner in order to render him liable for damages and His Lordship was of opinion that such a case had not been made out by the defendant in his counter-claim.  The rest of the case being admitted, there would be judgment for plaintiffs for Tls. 209.60 and costs which he would fix at $25.

[N.B. - The amount for which judgment was given was made up as follows:-

Plaintiffs' claim $305.64 =            Tls. 224.12

Less defendants' claim re 151

Bales per Ching-wo, allowed by

Plaintiffs                                            Tls.  13.52


Net claim                                           Tls. 209.60



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