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Colonial Cases

Dick v. Tandberg, 1889

[shipping, pilotage]

Dick v. Tandberg

Supreme Court for China and Japan
Mowat ACJ, 27 February 1889
Source: North China Herald, 1 March 1889

LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 27th Feb., 1889
Before R. A. Mowat, Esq., Acting Chief Justice.
  DICK, Defendant and Appellant; TANDBERG, Plaintiff and Respondent.
  Mr. Wainewright for the defendant and appellant.  There was no appearance for the plaintiff and respondent.
  This was an appeal from the Consular Court at Newchwang in which Mr. L. J. Tandberg, licensed pilot at that port, sued Cat. Dick of the schooner Mercur for pilotage amounting to Tls. 30.  It appeared from the evidence that on the morning of the 11th October last Mr. Tandberg was on board the s.s. Meifoo bringing her into Newchwang.  From the steamer he saw the schooner ashore at the west bar making signals for assistance.  The Meifoo went to her and towed her safely into port and the pilot claimed remuneration for his services at the rate prescribed in the regulations of that port, Tls. 2.50 per foot.  Captain Dick disputed the amount, and offered Tls. 1 per foot or nothing, which was refused.  Hence the original suit, in which judgment was given in the full amount claimed, and against this decision the defendant appealed.
  Mr. Wainwright said he could find no authority bearing directly upon the case in which one of the features was that the pilotage into Newchwang was not compulsory, but the burden of proof lay upon the plaintiff who had to prove that he was either actually or impliedly hired by the defendant, and promised payment for his services.  Now there was not the least evidence to show that the Captain of the Mercu when he signaled for assistance, knew there was a pilot on board the Meifoo, and he was not told he was going to have the assistance of a pilot as well as towage.  He had no communication with the pilot before he was taken in tow, and no communication with the Captain or officers of the Meifoo beyond informing them that he had sprung a leak, and wanted to be towed in.  There was no evidence whatever to prove any sort of contract.
  With regard to the offer of one tael per foot he (Mr. Wainewright) submitted hat it was made to avoid any dispute, and prevent his client getting a bad name amongst the pilots, and that offer did not prejudice the case one way or the other, and nor having been accepted did not bind him in any way now.
  His Lordship - Ought not the defendant to have stated in the evidence that he did not know there was a pilot on the Meifoo, if that was so?
  Mr. Wainewright said it would no doubt have been better, but it was for the plaintiff to prove that there was a contract.
  His Lordship said that the defendant ought to have stated that in the Court below, for he alone could say what he knew or did not know on that point.  His Lordship could not assume that the defendant had not that knowledge, and the circumstances of the case pointed to the opposite conclusion.
  Mr. Wainewright submitted that even supposing his client had known there was a pilot on board, the towage would have included the services of the Master and crew of the Meifoo, and also of the pilot who was part of the equipment of that vessel.  In the Merchant Shipping Act, par. 157, special provision was made for payment of pilotage by the following ship.  That however hardly applied to the present case where a pilot is not compulsory, but to one in which the captain could not get a pilot.  Here the pilot was on board the claiming ship and he (Mr. Wainewright) submitted that there was nothing in the regulations to entitle him to pilotage.
  His Lordship read part of the defendant's answer, in which he contended that the pilot could not be in charge of the two vessels at the one time.
  Mr. Wainewright said that statement was hardly correct.  The pilot could be in charge of both vessels at once, but the second one should be given into his charge before he could be considered in charge of the two.
  His Lordship sad that he could not infer from the evidence that the defendant did not know the steamer was in charge of a pilot; on the contrary, if anything was to be inferred from the case, it was clear that he must have known.  The question was, then, whether the defendant, knowing that there was a pilot on board the steamer, was entitled to have his vessel towed without any charge for pilotage.  It seemed to his Lordship that it lay with the defendant to cite authorities which would exonerate him from paying for services, which as a matter of fact, he received.
  The paragraph of the Merchant Shipping Act cited by Mr. Wainewright did not throw any light on the question at all.  His Lordship thought, in the absence of any authority to the contrary, that in the case of a pilot having two ships in his charge, entailing additional anxiety and labour upon him, he was entitled to payment for both vessels, nor could his Lordship see any ground in principle for the defendant's vessel claiming to be exonerated from paying for pilotage merely because another vessel was being piloted by the same pilot at the same time.  
  His Lordship dismissed the appeal, observing that there had been nothing adduced to show that the defendant in the lower court was wrong, and he thought it right to say for the guidance of the Provincial Courts, that there was no right of appeal in cases, where the sum involved was under the appealable amount, and consuls should not give leave to appeal in such cases unless there was a principle involved, or the consul himself had any serious doubts as to his own decision.  When the consul refused leave to appeal, the party could always apply to the Court here for leave.  In the present case, the expenses in the Court below connected with the appeal were about $22, while the amount involved was only Tls. 30.
  Mr. Wainewright said that he had written to his client to say that no principle was involved.
  His Lordship made an order for dismissal of the appeal; there would be no costs, the respondent not being represented by Counsel.

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