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Colonial Cases

Gordon Bros v. Robert Anderson and Co., 1889


Gordon Bros v. Robert Anderson and Co.

Consular Court, Hankow
Allen, June 1889
Source: North China Herald, 29 June 1889

The petition, answer and judgment in this case, which follow, tell the whole story, so that it is needless to give the evidence in detail.
  The plaintiff's petition was as follows:-
Between William Grant Gordon, trading under the style and firm of Gordon Brothers, plaintiffs.
Patrick McGregor Grant, trading with another and/or others, under the style and firm of Robert Anderson & Co., Hankow, defendants.
  To C. F. R. Allen, Esq., H.B.M.'s Consul at Hankow.
  The petition of William Grant Gordon, the above-named plaintiff, shows as follows:-
- That the above-named defendants are Agents for a Company or Association called the china Shippers' Mutual Steam Navigation Company.
- That on the 14th inst. a British steamer called the Moyune, belonging to the said Company, of which the said defendants are consignees and agents at Hankow, was placed at the berth at Hankow to load teas for London at four pounds per ton of forty feet.
- That on the 14th instant, the said defendants issued a circular addressed to the Merchants trading at Hankow in about the following terms:-
  The China Shippers' Mutual Steam Navigation Co.'s steamer Moyune will load teas for London at 4 Pounds per ton.
For freight, apply to
(Signed) Robert Anderson & Co., Agents.
- That the above-named plaintiffs on the 14th instant immediately on seeing the above-said circular did send to the said defendants a letter as follows:-
    Hankow, 14th M<ay, 1889.
     Messrs. Robert Anderson & Co.,
    Agents steamer Moyune.
    Dear Sirs, - We shall be glad to engage two hundred tons in above steamer, in accordance with your circular of today's date.
(Signed) Gordon Bros.
The receipt of which was acknowledged in the plaintiffs' chit-book, "Thanks, will reply. R. A. & Co."
- That it is within the knowledge of the plaintiffs, and that they are prepared to prove that other parties, viz. Mr. Wm. White, Mr. Fred Hague and others applied for space subsequent to the application of the plaintiffs as mentioned in par. 4.
- That on the 15th inst. the plaintiffs were informed by Messrs. Popoff Freres, Overbeck & Co., Wm. White, Fred Hague and others that they had received replies to their applications, and that in every case tonnage had been apportioned to them.
- That up to 4 o'clock p.m. on the 16th inst. the plaintiffs received no reply to their application of 14th whereupon plaintiffs addressed the defendants as follows:-
Hankow, 16th May, 1889.
Messrs. Robert Anderson & Co., Hankow,
Agents Steam Moyune.
Dear Sirs, - We shall be glad to have a reply to our letter of 14th inst.
(Signed) Gordon Brothers.
In acknowledgement the defendants wrote in plaintiffs' chit book "Reply already sent, R. A. & Co." The reply in question arriving simultaneously with the plaintiffs' chit book, and being to the following effect:-
16th May, 1887.
Messrs. Gordon Brothers, Present.
Dear Sirs, - In reply to yours of the 14th instant, we regret that at the moment we cannot allow you any space in the s.s. Moyune, but will advise you later should there be any to place at your disposal.
(Signed) R. A. Anderson & Co.,
Agents C.S.M.S.M. Co.
- On receipt of the above the plaintiffs wrote to the defendants as follows:-
Hankow, 16th May, 1889.
Messrs. Robert Anderson & Co.
Agents s.s. Moyune.
Dear Sirs, - We have just received (4.30 p.m.) your letter of this date informing us that you are unable to allow us any space in the above steamer, replies to other applicants having been sent out by you yesterday. We shall be glad to know on what principle you as agent for a company of public carriers have made your allotment of apace in the Moyune, as we know for certain that our application reached you prior to that of others to whom you have allotted tonnage.  An explicit reply to the above will oblige us, as you may hear further as a subject not of private but of public importance.
(Signed) Gordon Brothers.
- That on the evening of the 16th the plaintiffs received the following letter from defendants:-
Hankow, 16th May, 1889
Messrs. Gordon Brothers,
  In reply to your favour of this date, received this afternoon, we can only say we male allotments of space in our steamers as we think best for the interests of the supporters and the company in general.
  While regretting we have so far been unable to give you any tonnage in the Moyune, we may mention that (as we have already written) should we be in a position to do so later on, we shall communicate with you at once.
(Signed) Robert Anderson & Co.
Agents, C.S.M.S.N. Co.
- That on the 17th instant the plaintiffs wrote as follows to the defendants:-
Hankow, 17th May, 1889
Messrs. Robert Anderson & Co.
Dear Sir, - In reply to your letter of yesterday's date wee beg to inform you that unless we hear from you today that you are prepared to allot us space in the Moyne in like proportion to other applicants, we shall at once enter an action against you in H.B.M.'s Consular Court, in order to test the legality of your action, and to bring the matter before the public generally.
(Signed) Gordon Brothers.
Which led to the following correspondence:-
Hankow, 17th May, 1889
Messrs. Gordon Brothers,
Dear Sirs, - We beg to acknowledge receipt of your letter of this date and in reply to state can only draw your attention to what we have already twice written you, viz. that though at the moment we are not in a position to give you any space in the Moyune, should we be able to do so later we will communicate with you without delay.
This we now confirm,
(Signed) Robert Anderson & Co.  [&c.]
Hankow, 17th May, 1889
Messrs. Robert Anderson & Co.
Agents s.s. Moyne.
Your letter of today's date has just reached us (4 p.m.). We complain of unfair allotment being in a position to prove that later applicant than ourselves had space given them.
  We therefore confirm out letter of today and will strictly adhere to the conditions therein contained.
(Signed) Gordon Brothers.
- That the acts of the defendants in thus boycotting the plaintiffs and depriving them of the right to ship in a steamer the property of a company of common carriers seriously prejudices them in their business and position as commission merchants.
  The plaintiffs therefore pray that the defendants may be decreed to pay the plaintiffs the sum of three thousand taels Hankow sycee, within one calendar month, and that the plaintiffs may have such further or other relief as the nature of the case may require.
  The defendant to this petition is Patrick McGregor Grant, trading with another and/or others under the style and form of Robert Anderson & Co.
Hankow, 17th May, 1889.
(Signed) William Grant Goon, trading under the style of Gordon Brothers, Hankow.
Schedule of claim of damages in above action.
Actual commission and charges on
teas not shipped ..................... Tls. 1,000
Damage to good name.............Tls. 2,000
                                                      Tls. 3,000.
Gordon Brothers.  

The answer of Patrick McGregor Grant the above-named defendant to the petition of the above-named plaintiff.
  In answer to the said petition the said P. M. Grant says as follows:-
- The defendant admits that the allegations contained in the first four paragraphs of the petition are substantially correct.
- With reference to the 5th and 6th paragraphs of the plaintiff's petition the defendant admits that space was given to certain persons whose applications were received after the plaintiff's application mentioned in the 4th paragraph of the petition was sent in.
- The defendant admits the truth of the allegations contained in the 7th, 8th, 9th and 10th paragraphs of the petition.
- The defendant denies all the allegations contained in the 11th paragraph of the petition.
And further in answer to the petition the defendants says:-
- That the defendant never refused to allot to the plaintiff space in the said s.s. Moyune, but on the contrary did on the 20th May offer to the plaintiff such space to the extent of 50 tons, but the plaintiffs declined to accept the same or any part thereof.
- That according to the custom of the port of Hankow it is optional with the owners and agents of steamers loading rea during what is known as the tea season whether they will or will not allot space to any individual applicant and what amount of space if any) they will allot to any individual applicant.
- That the plaintiff when applying for space in the said s.s. Moyune did not offer to the defendant to pay freight for the cargo he proposed to ship nor has he since made any offer to pay freight.
- The defendant as to the whole action has paid into Court Five Taels Hankow sycee and says that sum is sufficient to satisfy the plaintiff's claim.
Hankow, 3rd June, 1889.
Patrick McGregor Grant.
Trading under the style or firm of Robert Anderson & Co., Hankow.
(Delivered 17th June 1889.)
  This is a case in which the plaintiff being desirous to ship Tea in the s.s. Moyune, the first steamer laving Hankow for London in 1889, applied to the defendants for space for 200 tons in that steamer.
  The defendant as agent of the said steamer ave space to other shippers, leaving the plaintiff's application on one side, to see whether he would have a Margin of space to spare and whether it would be to his advantage ort not to let the plaintiff have t.
  The plaintiff in the opinion of this court was quite justified in considering this action as a refusal of space to himself in preference to others.  The plaintiff alleges that the action of the defendant in refusing him space in the Moyune has caused him (the plaintiff) the loss of one thousand taels, the commission which he would have received on the two hundred tons which he would have shipped.
  It appears however from documents produced by the plaintiff himself that he had simply instructions from Europe to buy tea to a certain total value and that though he was told that his constituents preferred the Mutual line, and though they wished to have a few lots in the first steamer, yet they gave him no positive orders to ship by the first or any particular steamer; neither was their order to be curtailed in the event of non-shipment by the first steamer.  Furthermore as will be seen later on no shipper this year by the Moyune got as much space as he applied for.  If space had been allotted to plaintiff in the same proportion as it was to other shippers, he would have had, say 120 tons, so that in any case the commission lost would be only six hundred taels. It would indeed be a hardship to seamer agents, if they were liable to intending shippers for the loss of commission, &c., on teas which the shippers might have bought, had they received the full amount of space applied for.
  But it appears to this Court hat the plaintiff has not been prevented from executing his orders by the defendant's refusal to grant the tonnage applied for in the Moyune, specially as by his own admission it is the custom of his firm, to make use of the space allotted to other shippers.  The plaintiff has, by his own admission taken advantage of a vacancy for 850 half chests on board the Moyune and has filled the space himself.
  The Court therefore fails to see how the defendant by his action has caused the plaintiff to lose the sum of one thousand taels claimed as commission or any part of it.
  Secondly, the plaintiffs claim that the unjustifiable action of the defendant in not allowing him space in the first steamer this year amounts to a "boycott" and is calculated to do him serious damage in his business, and injure his good name as a merchant, commission agent and man of business generally, and he claims prospective damages to the extent of two thousand taels.  The plaintiff pleads that the Moyune is a public ship and that the agents are public carriers bound to convey the goods of any person who offers to pay their hire.   The defendant on the other hand pleads: Firstly, that the plaintiff did not complete the bargain by offering to pay freight.  The Court considers this plea irrelevant, as freight is, according to the custom of the tea trade with London, payable on arrival of the steamer in London and that he owners of the ship have a lien on the cargo till the freight is paid.
  The defendant further pleads that according to the custom, of the port of Hankow, it is optional with the owners and agents of steamers loading tea during the tea season, whether they will or will not allot space to any individual applicant, and what amount if any they will allot to any individual applicant.
  Such a custom, no doubt, conflicts with the rule that a common carrier is bound to convey the goods of any person who offers to pay his hire, and the usage to be binding must be the invariable certain and general usage of the trade and place, and not the mode of dealing of a particular house.
  The evidence before this Court, whether a steamer agent by the universal custom of this port has or has not the right to allot space in a steamer as he thinks fit is decidedly conflicting.  The plaintiff himself alleges on oath that his experience of twenty-five years in Hankow shows that the custom of loading the first steamer of the tea season is to allot space on the principle of first come first served. Mr. William White repeats the same assertion, adding that he has never known any instance of agents allotting space as suited the interests of their company.
  Mr. Clark on the other hand would consider it unfair if the agent after circulating a steamer should give away any space to others, and so fill up the steamer before he had time to apply.  Mr. J. W. Harding's evidence is still more explicit; he says: "It is the custom of the port that a man who is a large and consistent supporter of a company should have a preferential right to space.  Such is the general and universal custom of the port."
  The defendant's evidence and that of Mr. Alexander Stewart are to the same effect and Mr. Schlee states what has been the custom of the Mutual Co. heretofore.  Mr. Inglis and Mr. Reynell profess ignorance of the custom of the port.
  The Court after carefully considering the question has come to the conclusion, that the custom of the port us that agents of steamers may allot or refuse space as they think best for their own interests.  The Court is led to this conclusion not only by the evidence quoted above, but also by a statement of the defendant on oath, that this year in allotting the cargo space of the Moyune he granted some applicants 17 ½ less than the amount applied for and that these were the best terms he gave, for the other reductions varied to as much as 70%, the average reduction being about 40%. The Court cannot believe that if such proceedings were contrary to the accepted custom of the port, the defendant's firm would not have been called to account by those whose applications were less favourably treated. The Court therefore holds that the defendant was within his rights in the course which he adopted with regard to the shipment of the plaintiffs' tea.
  A good deal of extraneous and irrelevant matter has been imported into the case both by plaintiff and defendant regarding the transactions between the partied in 1888 and the motives at force.  The Court is prepared to allow hat the action of the plaintiff in cancelling his freight engagement by the Moyune was not actuated by malice, the Court being of opinion that it was dictated by the plaintiff's desire to make the best bargain in his power for himself and his constituents.  The Court in like manner holds that the refusal of the defendant to grant space this year was not because the defendant wished spitefully and maliciously to revenge himself on the plaintiff, but because he wished to allot space in the Moyune in the manner he thought best for the company he represented.  Thus it follows that the plaintiff's reason for cancelling his engagement this year and the defendant's reason for refusing space this year are similar.
  The Court holds that in refusing cargo space in the Moyune this year the defendants had acted within he rights granted him by the invariable custom and usage of the port and that if the plaintiff's good name has suffered by the action of the defendant, the defendant is in no way responsible.
  The Court therefore decrees that the plaintiff shall pay the costs of this cause, which amount to Tls. 75 and $27 for court fees together with such costs (if any) for legal assistance to the defendant, as Her Majesty's Supreme Court in Shanghai may decree.
Signed by C. F. R. Allen,
Consul and Judge of Provincial Court.
We assent to the above:
S. Marsh, Jas. Reddie, A. Greaves, Assessors.

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