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Colonial Cases

Tsung Chun Chin v. Jardine, Matheson and Co., 1889


Tsung Chun Chin v. Jardine, Matheson and Co.

Rennie CJ, 13 June 1889
Source: North China Herald, 15 June 1889

13th June.  
Before Sir R. T. Rennie, Chief Justice.
JARDDINE, MATHESON & CO., Defendants and Appellants.
  Mr. H. S. Wilkinson for the Plaintiff and respondent.
  Mr. C. Dowdall for the Defendants and Appellants.
  This was an appeal from the decision of H.B.M.'s Court at Tientsin in a suit by the plaintiff against Messrs. Jardine, Matheson & Co., for damage to a quantity of Sugar shipped at Taiwan in the defendants' schooner Choysang, and transferred from that steamer at Shanghai to the steamers Pechili and Sin Nanzing.
  A motion by the appellants for leave to adduce new evidence had been set down for hearing at the same time.
  Mr. Dowdall now applied for the motion for admission of new evidence to be allowed to stand over.
 Mr. Wilkinson opposed the application, and the Chief Justice supported the learned counsel's view and said that they should deal with the motion then.
  Mr. Dowdall in support of his motion said that the case had been heard in Tientsin where no legal advice could be had; the defendants had been called upon to answer in three days, and three days' notice of hearing had been given.  It was impossible, therefore, for the defendants to communicate with Shanghai and obtain legal advice. Mr. Dowdall cited Rules 158 and 172 of the Supreme Court Rules in support of his motion.  After further argument his Lordship sad that after having heard Counsel on both sides he would make no order on the application to adduce fresh evidence, and they would proceed with the hearing of the appeal.
  Mr. Wilkinson thereupon made a preliminary objection, that the appeal was in part an appeal from the decision of the referee, and any objection to his decision ought to have been taken in the Court below.  But he did not press for a decision on the point at the moment.
  Mr. Dowdall referred to the original petition alleging that the cargo had been shipped in good condition.
  Mr. Wilkinson said there was no doubt that it had not arrived in good condition.
  Mr. Dowdall said there was one statement in the petition as to detention and loss of market, but this had been found against the plaintiff and he need not refer to it further now.  The evidence of the plaintiff as to the bill of lading was then read.  From this it was clear that the plaintiff had no personal knowledge of the shipment himself.  Mr. Dowdall then read the bill of lading, and referred to the evidence of Mr. Inglis, the defendant's agent in Tientsin, who had put in the mate's receipts, which Mr. Dowdall contended should have been received as evidence in the same way as the bill of lading.
 Mr. Wilkinson said he would argue that if the mate's receipts had been received in evidence in Tientsin they would have been improperly received.
  Mr. Dowdall handed in the mate's receipts with some memorandums in reference to the passage, some of which contained the words "some unfull," and others "contents wasted." Mr. Dowdall next read the judgment of the Court below in which the Court said that the bill of lading could not be varied by the mate's receipts; and continuing submitted that the question now for the Court to decide was - whether ship owners were estopped from giving evidence of the quantity and quality of goods shipped by reason of what was in the bill of lading? He then referred his Lordship to Rule 59 in reference to matters of accounts, and said the referee ought to have taken evidence, and it was clear that he had not taken any evidence, and his report did not show he had taken any evidence of the weight of the sugar when put on board,
  Mr. Dowdall said his first objection was that the Consul was wrong in saying that the bill of lading could not be varied by the mate's receipts on the subject of the quantity and quality of the goods.  On this point he referred his Lordship to the Bill of Lading Act, 1885, Sec. 3, and said the plaintiff's statement in the petition was that he was the owner of the goods and that therefore it was not necessary to refer to the Act.  Mr. Dowdall cited the following cases in support of his contention: Jessel v. Bath, L.R. 2 Ex. P. 267; Fisher's Digest, Vol. 6, p. 1280 - showing that the Act renders liable only the person who signs - 6 Carrier on Carriage by Sea, p. 78, in which are referred to Bedolph v. Bingham 30 L.R. p. 30; Grant v. Norway 23 L.J. C.P. p. 23 - showing that the master has no authority to sign the bill of Lading for a quantity not received.
  Mr. Dowdall continuing said the mate's receipt, stating that some packages were "unfull," showed that some of the goods were not received on board.  In the case of Grant v. Norway none of the goods had been received on board, and there was another case in which a portion had not been received on board, the case of  Cox v. Bruce 18 Q.B. Div. p. 147, which Mr. Dowdall proceeded to read.
 His Lordship - Does not that go to show that the captain can bind the ship owner as to the statement of condition?
  Mr. Dowdall also referred his Lordship to Lemarchand v. Christie, 19 Q.B. Div. p. 133, Fisher's Digest, Vol. 5, p. 1276, Hubbersley v. Ward, 22 L.J. Exp. 113; and said those were all the cases which he would refer to upon his first point.  His second objection to the judgment of the Court below was founded upon the exception in the Bill of Lading, the words being "weight, measure, contents and value unknown."
  Mr. Wilkinson observed that the point had not been raised in the Court below.
  Mr. Dowdall further referred to Scrutton on Charter Parties and Bills of Lading, p. 99, and the cases therein referred to; to Carver p. 88, ad said that there was no evidence given of the damage having occurred after the goods were shipped.  Referring to the bill of lading he submitted there was no evidence that the shipper was the consignee or the friend or agent of the consignee.  In regard to the affidavits which had been filed in support of the motion to adduce further evidence, he submitted that if the case was further gone into he was prepared to rest his case on the statements in the affidavits and produce his  evidence, and they might order a rehearing or refer the case back to the court below.
 His Lordship - How can I refer to the affidavits in dealing with the appeal?
  Mr. Dowdall said the agent of the defendants did not know that evidence ought to have been brought, and if he ought to have been wiser, the rehearing ought nevertheless to take place.  He then referred to a case which had been tried in this Court, Hatch v. Tsung Tsang heard in 1880 (reported in the N.-C. D. N. of 20th July, 1880). This closed his side of the case.
  The further hearing was adjourned till tomorrow morning.
14th June.
Mr. Wilkinson, in opening his case for the plaintiff, submitted that neither of Mr. Dowdall's two objections to the judgment could be sustained, neither having been raised in the Court below.
  Mr. Dowdall pointed out that what he meant by his second objection was that Mr. Inglis said the bills of lading ought to have been issued subject to the mate's endorsement.
  Mr. Wilkinson said that the judge's note showed that Mr. Inglis said that some clerical error had been committed, and the particular endorsement omitted from the bills of lading, and upon this fact the Court came to the right conclusion; for when the bills of lading were handed into Court and examined it was found that there was no such endorsement upon them.  The Court found that no error had been committed, and that the bills of lading could not be read in the way Mr. Inglis asked that they should be read.  There was no proof given that the bills of lading were issued subject to the endorsement in the mate's receipts.  On that point he referred his Lordship to the case of Perkins v. Huxtable. 28 L.J. Magistrates' Cases, p. 221, which was to the effect that a point not taken in the Court below could not be taken in the Court of Appeal.
  His Lordship - That appears to have been a criminal case.
  Mr. Wilkinson said yes, but it was referred to another case which he would  cite, that of Knight v. Hallowell, L.R. 9 Q.B., ps. 314, at p. 41-17 which the learned Counsel proceeded to read, after which he cited the observations of Lord Justice Bramwell and Lord Justice Butt in Borrowman v. Free, 4 Q.B. Div. p. 500; Livingstone  v. the Railway Coal Company, 5 Appeal Cases, ps. 25, 29, 30 and 43, in which case the Lord Chancellor decided that a point which was not before  the Court below, or the Court of Appeal, could not be raised in the House of Lords.  The learned counsel further referred to the case of Ex parte Frith decided in 1882, - 19 Chanc. Div. p. 429, in which Jessell, Master of the Rolls, held that if a point was not raised in the tribunal by which it was tried, where evidence might have been given on it, it could not be taken afterwards, and on these grounds the learned Counsel asked his Lordship to rile against Mr. Dowdall's second objection.
  His Lordship asked was not the whole question raised in the Court below when the mate's receipts were put in? Although it was not argued by lawyers that was the intention of the defendants when they put in the mate's receipts against the bills of lading, and the receipts were read although they were handed back.
  Mr. Wilkinson said his contention was that they could not be admitted under the Bills of Lading Act, a section of which he read stating that a bill of lading in the hands of the consignee or endorsee for a valuable consideration, representing that goods had been shipped on board a vessel, was conclusive evidence of such goods having been shipped.  In the court below, he submitted, it was treated entirely as of the bills of lading had been signed by the defendants, and there was no question raised there as to their having been signed by anyone else.  He submitted that the defendants were bound by the bills of lading, even if the goods were never shipped, except it could be shown that they were signed by a mistake or owing to fraud on the part of the shipper, and here it was not suggested that there was any fraud on the part of the shipper.  Nor was the fact that the goods were shipped on board in dispute. Here it was shown that the plaintiff was the consignee, and it was assumed throughout that he was the owner of the goods.
  His Lordship - And not the shipper?
  Mr. Wilkinson said no, the shipper was a different person.
  Mr. Dowdall asked what authority Mr. Wilkinson had for the last assertion.
  Mr. Wilkinson replied because they were shipped in a different name, and said the contention was not as to the quantity shipped, but as to the condition of the goods received.  He then proceeded to argue that where the bills of lading had been signed by the agent it was binding upon the people whom he represented and they were not to now go into the question of the limit of what his authority was, when it had not been raised in the court below.  He submitted that the agent had authority to bind the ship owners as to the quality and condition of the goods shipped on board, in the same way as a master was shown to have this authority in the case of Grant v. Norway quoted yesterday by Mr. Dowdall. If they were to consider the decision of the referee, he (Mr. Wilkinson) submitted that the referee had arrived at a right decision.  He referred his Lordship also to the case reported at 340 Legget's Bills of Lading and in 2 Aspinall's Maritime Law, p. 430.
  His Lordship asked had the plaintiff in his evidence said that he bought the sugar and paid for it?
  Mr. Dowdall replied in the negative.
  His Lordship said that if the plaintiff had bought and given full value for these packages upon the representation of the defendants' agent that the sugar was there and in good condition he could undoubtedly claim and recover, but he did not appear to have said that he ever paid for it.
  Mr. Wilkinson said that the plaintiff was only entitled to sue upon the goods passing into his hands, and that he had given full value for them was admitted in the court below by reason of the point not being taken there.  The learned counsel then read the pleadings in which occurred the words "Amongst other cargo belonging to the plaintiff" were so many packages of sugar, and submitted that the onus of showing how the damage occurred lay upon the defendants.  Upon that point he referred his Lordship to the cases of the Ida, in Carver, p. 83, and to the Peter le Gros, page 100.  And he read Mr. Inglis' evidence "That the sugar arrived in such a condition that one could not tell what was the amount of the packages," and submitted that there was nothing in the mate's receipts to justify such a condition of the goods when they were landed, and it was not sufficient to put in these receipts even if they were admissible.
  His Lordship said it appeared to him that the Court below did not give any weight to the mate's receipts.
  Mr. Wilkinson referred his Lordship to the notes in the judgment on the point, and proceeded to argue that they were inadmissible because they were not proved, nor was there anyone to prove hem in the lower Court.
  His Lordship said there was nothing in the proceedings to show that the Court rejected the mate's receipts because they could not be proved, but because they could not be put into competition with the bills of lading, because they were not mentioned in the bills of lading.
  Mr. Wilkinson said it would have been necessary to prove them, and the only person who could do so was the mate and the person ion Formosa who granted them.
  Mr. Wilkinson said he would now refer his Lordship to two cases on the point that the decision of the court below was quite right, although the reasons given for his judgment may have been wrong.
  His Lordship - But if we find that the court below jumped at a hasty conclusion on an erroneous view of the law ought not the case to be re-opened?
  Mr. Wilkinson said upon that point he would refer to the case of Spicer v. Martin, H.L. 14 App. Cases, p.12, and the learned Counsel read the judgment in that case.  He submitted that upon the evidence tendered in the Court below the judgment was proper and ought to be for the plaintiff; and he thought his learned friend would admit that the judgment of the court below could not be for the defendants unless further evidence was brought.  Indeed that was what Mr. Dowdall's argument came to, - that it was a hard case for the defendants because  they did not know how to conduct their own case, and he thought it would be an unusual course to ask the case to lie over until the defendants got instructions from Shanghai.
  His Lordship said he could not quite understand the reasons for the hurry to hear the case, why three days had been given for the answer and three days fixed for the hearing.
  Mr. Wilkinson said no doubt there was some reason, and the case was not one involve ng any very great principle or amount the sum involved being only nine hundred taels.
  His Lordship said that the case might be important from the very strong view of the law taken in it.
  Mr. Wilkinson referring to the point of hardship said the question scarcely entered into this case where the defendants had received Tls. 2,000 for freight, and were asked to pay only Tls. 900 for damage.  In reference to the argument that the Referee was wrong in not taking evidence of the condition of the goods when put on board, the learned counsel submitted that he was precluded from doing that, and was to assume that the goods were in good condition when put on board, and was to assess damages on the principle that they were in good order when shipped.  But even if he were not precluded, it did not appear whether he took evidence on the point or not, and contended that evidence of condition should be taken in the court below and not in this Court.  He submitted that the report of the Referee was analogous to the verdict of a jury, and referred his Lordship to the case of Danemo v. Allotti, Baxter's Judicature Rules, 5th Ed. p. 390.
  His Lordship said that if Mr. Wilkinson had stated everything which he had to say, his Lordship thought it was clearly a case that required re-opening.  He thought it would best be argued in the present Court, but he was anxious to meet the convenience of all parties.  The whole case from beginning to end had been taken in a way to which his Lordship was not satisfactory, and he could not see why this short notice of the answer and trial were given, nor did he see anything alleged in the plaintiff's case to show that he was the consignee of the goods, though he saw in his petition it was inferred that he was the owner and shipper.  He also said that the defendants did not raise points which they might have raised in the court below, and finally he saw that the judgment given seemed to have been somewhat hastily arrived at, and the principle which it involved might be readily misunderstood and misconstrued. Therefore without looking at the affidavits about the admission of new evidence his Lordship thought that the case might be re-opened and re-heard upon the evidenced of both parties.  He thought altogether it was a case to be re-heard but as to in what form it ought to be re-heard he was open to conviction.
  Finally after some further discussion, his Lordship entered a note that the case should be re-heard, but at the request of Mr. Wilkinson, Respondent's counsel, deferred giving express directions for the re-hearing till a future date.

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