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Colonial Cases

Yue Tai v. Butterfield and Swire, 1889


Yue Tai v. Butterfield and Swire

Civil Summary Court, Shanghai
Rennie CJ, 18 June 1889
Source: North China Herald, 22 June 1889

Shanghai, 18th June, 1889
Before Sir R. T. Rennie, Chief Justice.
  A case of considerable interest to shippers, ship agents and ship owners was heard this afternoon, the plaintiff being Chang Ching-king trading as Yue-tai Hong, and the defendants Messrs. Butterfield and Swire as agents for the Blue Funnel steamer Orestes,  The plaintiff claimed Tls. 36.75 which he had been compelled to pay as storage to the Associated Wharves on 1,225 planks of Japanese  timber, as he alleged owing to the negligence and delay of the defendants in not having the bill of lading made out in accordance with the manifest, which occasioned his being unable to take delivery of the goods till after the ten days usually allowed for cargo to be taken away by consignees had expired, and he was consequently obliged to pay storage to the amount stated.
  Mr. W. V. Drummond appeared for the plaintiff, while Mr. J. Bois conducted the case for his firm.
  Mr. Drummond briefly opened the case and submitted that it was the duty of the defendants to hand the plaintiff a bill of ladling  which would enable him to get immediate delivery of his goods, and this the defendants had failed to do, which he submitted amounted to a tort on their part.
  His Lordship - What authority can you give for this?
  Mr. Drummond - I do not think it will be necessary to give any authority for that statement; it might be necessary to give evidence of the usage of the port, and it was a  matter of common knowledge that goods should be delivered in a port according to the usage of that port.  I understand that the facts are practically admitted by Mr. Bois, except that he said in this case the loss was owing to the man himself not proceeding rapidly enough.
  Mr. Bois said he did not admit that there was any loss, and he contended the defendants were not liable to pay this month's storage on the plaintiff's goods because the latter did not go quick enough to get them delivered.  Mr. Bois further explained that the ten days' free storage before referred to did not really mean ten clear days but ten days from the arrival of the vessel, and not from the time she is discharged.
  His Lordship - In point of fact there is no issue of law involved at all.
  Mr. Drummond - No my Lord; it is simply a question of facts, as between the plaintiff and defendants.
  Mr. Drummond, in reply to his Lordship, said it would not be necessary to call the plaintiff, but only the man who was employed to put the goods through the Customs.
   Chang Foh Dong examined by Mr. Drummond said - I was employed by the Yuen Tai Hong to take delivery of certain goods from the s.s. Orestes which arrived on the 14th ultimo.  I received the bills of lading at 3 o'clock on the afternoon of the 17th ultimo, and applied at the defendants' hong on the morning of the 18th, bringing the bills of lading (produced) and paying the freight on one, that on the other having been paid in Kobe.  They were countersigned by the agents' Portuguese clerk, and some marks were put on them.
  Mr. Bois said he would admit the truth of all this to save time.
  Mr. Drummond said he would make it as short as possible and continued the examination of the witness as follows:
  The Portuguese clerk had no time to give me the bills of lading on the 18th, but gave them to me on the next day.
  Mr. Bois - That was Sunday.
  Witness - On Monday - I took them to the Customs house where the officer told me that the manifest presented by Butterfield and Swire was not in order and he could not pass the goods.  I went back and told the defendants and said it was their business to have the bills of lading in proper order so that the goods could pass.  I said if I cannot get them passed that day the ten days would expire. The Portuguese clerk then altered something in the bill of lading and gave it back to me.  I took it the same day again to the Customs House and again failed to get the goods passed.  I was told that one of the clerks from the defendants should be sent to the Custom House to correct the manifest before the goods could be passed.  Going back to Butterfield and Swire's I saw the same clerk again, and told him that if there was a mistake in the manifest it was his business and that the defendants would have to pay the godown rent after the ten days had expired.   
  There was a European clerk present as well as the Portuguese and I told him that they would have to pay a month's godown rent unless they could get the ten days extended by a day or two.  The clerk said it was not his business if the manifest was wrong, but my business.   
  On Tuesday morning I went again to the Customs with the bill of lading and applied for delivery of the goods and was again refused; the Customs officer saying that if the defendants had not the manifest properly altered they would fine them (defendants). The Customs officer refused to stamp the bills of lading, and I returned with them to Butterfield & Swire, when one of the clerks went with me to the Customs House.  He went to the Import Desk, the officer in charge of which handed the Import manifest to the defendants' clerk who looked at it, and finding it was not correct returned to the defendants' hong without doing anything.  I waited at the custom House for him to return for a while, and on finding that he did not come back I went again to the defendants' hong.  While I waited at the Customs I had the bill of lading.  The clerk at the Import desk told me that I could leave the bill of lading there, and when a clean manifest came back from the defendants it would be stamped and I could call for it.  I returned to the Customs at 4 p.m. when the clerk at the Import desk had gone.
  I went back at 10 the next morning (Wednesday) and was told that the bills of lading had been passed at 3.30 p.m. the day before, and I got the bills of lading which I took to the wharf where the goods were examined by the customs officer.  I remained here while he was measuring which took till six o'clock in the evening.  Next day I asked the Custom House officer to work out the account of the measurement, and he told me that he would make out the account and send it the next day (24th). At 2 p.m. the officer at the wharf sent the account to the Tide surveyor's office from which it was sent to the Import Desk at 3 o'clock.  I waited there to get the duty memo, which I did not get then. I went back for it next day (25th) and had to return to tiffin without getting it.  I got it at 1.30 the same afternoon.   I had to pay the duty at the Customs bank, and go a receipt which I brought back to the Custom House in order to get the bill of lading stamped.  There was no time that day to get delivery of the cargo.
  Mr. Drummond - Then he was in a position to get delivery of the cargo.
 Witness - Yes. I could then get the cargo, but I had first to pay the storage, and it was Sunday, so that I could not get delivery till Monday (27th). After I had paid the duty to the Customs on the 25th I went to the defendants and told them that they had better arrange about the storage as I had no more time.  The ten days allowed had expired on the evening of the 24th.   
  Butterfield & Swire sent a Portuguese clerk with me to the Associated Wharves where he had an interview with Mr. Law.  Mr. Law said he had no power to deal with the matter, but he would see the Eweo taipan and give an answer on Monday morning.  On Monday morning on asking the defendants had they an answer I was told not, and the clerk telephoned to the Wharf, the reply being that they could not do it, and that the rule was that if the goods remained an hour over the time allowed, storage must be paid.  The amount for storage was Tls. 36.75.
  I was employed to get delivery of the goods by the same ship, and I succeeded in getting some of them out of the wharf before the ten days had finished.  There was no difficulty in those cases.  There was difficulty in some other cases on which occasion I failed to get out the goods in time.  In the present case I did everything I could to get delivery of the goods in time.
  Cross-examined by Mr. Bois - The measuring finished on the 22nd and if I got the Duty Memo on the 23rd it would be too late, as it would have to pass several clerks in the Custom House before I got delivery.  I could get delivery now if I paid the storage.  I took delivery of the first lot on the 5th June.  I did not take delivery on the 27th because I would have to pay the month's storage whether I took delivery or not.
  Mr. Drummond said he would not call further evidence.
  Mr. Bois did not propose to call any witnesses; he practically admitted the facts.
 His Lordship - Then we might have saved an hour.
  Mr. Bois - The facts of the case with regard to the mistake mentioned is all I think I need explain.  The steamer arrived on the 14th; and her manifest for the Customs was made out from the list of the cargo as it was put on board the ship.  Some of the bills of lading when presented agreed with the boat notes.  But it was found that in some cases the shippers had split up the boat notes, and this created confusion in the Customs who could not pick out the particular lots as presented, and the result of this was that the Customs insisted on our putting in a new manifest.  There was necessarily some trouble with this as we had to pick out each separate lot, and the result was that it was not finished till Tuesday the 21st ult., and as the witness has stated, he was told in the Custom House on the 22nd that they were passed at 3.30 p.m. on the 21st, although he did not go to get them.  As far as we were concerned everything was put straight on the afternoon of the 21st, and he had the 22nd, 23rd and 24th for taking delivery of his cargo - three whole days.  And as witness stated, if there was any delay, it arose with the Customs officer at the wharf who took the measurement on the 22nd and did not make up his measurements till the 24th.  We say that this man did not urge the Customs officer to make up the measurements in time, or make him hurry with them, but left the officer to do as he liked, and the result was that he did not get his duty memo till the 25th ult.  We did all we could and the plaintiff was not the only man for there were other people in the same position.  This man had eleven bills of lading which he presented. We made out a list of the others who had goods on board, and these other people managed to take delivery of their goods in proper time, but this man did not and it was his own fault.   
  (Mr. Bois here handed in a list showing that many consignees had taken delivery of their cargoes.)
  They were practically all delivered on or before the 24th as your Lordship will see by the list, and it is pretty clear that this man had made up his mind that he would not take delivery; for several days before he was applying to the wharf to let him off the month's storage, and finding that he could not get them to do that he now tries to make us pay.  (Mr. Bois handed his Lordship the correspondence with Mr. Drummond on the subject.)
  Practically as a general rule they have four or five days in which to take delivery, and here this man had three whole days, and we are not responsible for the Customs officer's delay.  It was his man's duty to urge them and to hurry them up, and I say that the delay was not our fault.
  His Lordship - Whose fault was it about the mistake in the bill of lading?
  Mr. Bois - The shippers in Kobe; we do not see the bill of lading till the consignee brings it to us.  These bills of lading were split up by the shippers, and we did our best to put them right, which entailed a delay of one day.
  In reply to his Lordship, Mr. Bois said he did not think there was any use in calling witnesses.
  His Lordship - Except that it would be more or less important that you or some one else should prove that you did everything in your power.
  Mr. Bois - We allow that this bill of lading was not countersigned till the 21st, but being countersigned on the 21st, it gave him ample time to take delivery.
  Mr. Drummond applied that he should be allowed to look over the correspondence put in, as with the exception of his own letter he had not seen the letters before.  Having examined the correspondence, he referred to what he called a strong passage in one letter written by Mr. Clarke of the Associated Wharves in which the writer said that if the consignee had applied for the goods on or before the 25th he could have had delivery, and the learned counsel contended that it was obvious from the evidence that the plaintiff could not have taken possession of his cargo before the 25th.
  His Lordship -He means if the proper documents had been through then.
  Mr. Drummond - Yes, but taken by itself it reads as if he could have got delivery at any time he liked.  Then with reference to Mr. Bois's last remarks, I think I am entitled to ask your Lordship to decide in favour of the plaintiff upon the ample ground that Mr. Bois, acting for the defendants, admits the correctness of the plaintiff's statement throughout.  I submit that the statement shows he was prevented till the 21st or 22nd from getting the bill of lading so stamped that he could get on with the rest of the business.  The mistake Mr. Bois said arose with the shippers in Kobe, but that I submit is a statement we cannot go upon, on the bare assertion.  I think also it is impossible for the shippers to divide up the cargo after the issue of the bills of lading.
  Mr. Boois - It was not after the bills of lading were issued, but after the goods were shipped.
  Mr. Drummond further submitted that the ship owners were bound to have correct bills of lading and a correct manifest, and they had no right to allow shippers to go and make any changes they liked.
  His Lordship - What do you contend?
  Mr. Drummond - That the bills of lading ought to have agreed with the manifest, and they did not, that they should have gone down at once and set it right; and if they had done this the plaintiff would have been able to get delivery by the night of the 24th, but instead of that he lost till the 21st till the manifest was put right and then he had not sufficient time to get the measurement and his duty memo, pay his duty and get delivery.  He had to lose two days instead, and the two days occupied in getting the measurement account would have been saved.  When the measurement account was finished it was too late for him to do anything that day.
  His Lordship - He did not go back to the Custom House on the day when as he was told next morning, it was ready for him at 3.30 p.m.
  Mr. Drummond - It was too late to do anything with it that day.
  His Lordship - It appears to me that there was a most needless delay on the part of the Custom House officers. I do not know how long it should take to make up the measurement account but it seems to me that there was a needless delay.
  Mr. Drummond said that the measurement of such a number of planks entailed a great deal of work,  and there were usually a great number of people waiting to get their cargo through, there was an enormous amount of work and they had each to wait their turn.
 Mr. Bois - It is no our fault that the customs have not a sufficient staff.
  Mr. Drummond said that the defendants should have known how long it would take to get the goods through in the ordinary course of business.  There was an enormous number of planks to go through, and he submitted that the delay of two days, which had been admitted, prevented his client from getting delivery in time.
  His Lordship said it did not strike him that the plaintiff showed extreme diligence on his own part; when the bill of lading was put through he was out of the way, and did not go back till the Custom House clerk had gone. But he went back next day during office hours for it, whereas if he had got it the evening before he could have gone at once to pay the duty and clear the cargo.
  Mr. Drummond said the plaintiff had no power over the Customs officer and could not hurry him.
  His Lordship said that both parties were to blame and there was a mistake in the bill of lading for which some one was responsible. Looking at it as an arbitrator he really could not see that the failure to get delivery of the goods till after the 24th was due altogether to the defendants, and sitting as an arbitrator he thought there were undoubtedly faults on both sides, and that there should be no costs.
  The case was accordingly dismissed.

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