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Colonial Cases

Hopkins, Dunn and Co. v. Robertson, 1897

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Hopkins, Dunn and Co. v. Robertson

Supreme Court for China and Japan
Hannen CJ, 9 October 1897
Source: North China Herald, 15 October, 1897


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 9th October.

Before Sir Nicholas J. Hannen, Chief Justice.

HOPKINS, DUNN & CO. v. H. ROBERTSON.

   This was an action in respect of commission, &c., due in regard to certain steamers chartered by defendant. Mr. E. Nelson appeared for the plaintiffs and defendant conducted his own case.

   Mr.  Nelson read the petition, which was as follows:

    [1.] The Plaintiffs are British subjects carrying on business together in partnership in Shanghai under the style or firm of Hopkins, Dunn & Co., as Ship and General Brokers and Commission Agents.

   [2.] The Defendant is also a British subject and resides at Club Chambers, the Bund, Shanghai, but carries on business as a merchant in the premises occupied by the Russo-Chinese Bank at Shanghai.

   [3.] Disputes having arisen between the aforesaid plaintiffs and defendant as to the amount due from the defendant to the plaintiffs for work done by the plaintiffs in the working of certain steamers chartered by them for the defendant in 1896 it was agreed to refer the dispute to Mr. W. F. Inglis, of Shanghai, for his decision and the following is a copy of the submission to arbitration:

Shanghai, 7th April,1897

DEAR SIR, - We hereby agree that you shall decide between us what commission should be paid Messrs. Hopkins, Dunn & Co., for the work done by them during the course of last year in acting as agents for Mr. Horatio Robertson in the working of certain steamers chartered by them for him. We will abide by your decision, which shall be final.

   Further your fee in connection with this arbitration shall be paid by whichever party you decide it should be payable by.

We are, &c.

   [4.] The said W. F. Inglis consented to act as arbitrator and on the 26th day of June delivered his award. The following is a copy thereof:

"This is a case in which Mr. Horatio Robertson, acting on behalf of certain merchants in Hankow, did during 1896 charter several steamers and subsequently did place those steamers under the agency of Messrs. Hopkins, Dunn & CO. without making any specific agreement as to remuneration. The question now arises what amounts are Messrs. Hopkins, Dunn & Co. justly entitled to for the work they did in connection with the said steamers.

   The basis for calculating remuneration was at first agreed upon between the two parties  as $205,571.47, being the net amount of monthly hire paid to the steamers chartered, but on the question of percentage being submitted to arbitration Mr. Robertson withdrew the Trym from the list of contributing steamers and this has been agreed to by Messrs. Hopkins, Dunn & Co. subject to a claim for commission in respect of work actually done for the vessel between October and December, 1896.

   With regard to evidence respecting the existence of an understanding between the parties there is great variance and it is quite impossible to reconcile it.

   Beyond a written statement and a few letters, which latter do not bear directly upon the point at issue, Mr. Robertson had not produced any documentary evidence in support of his case. The statement touches upon transactions and various matters of account between the two parties, with which I do not propose to deal, as in accordance with the agreement for reference to me as a arbitrator I must confine myself to the simple question of remuneration for agency only.

   On the other hand, Messrs. Hopkins, Dunn & Co. have placed before me for examination letters and account books of which I have taken careful note so as to arrive at a satisfactory conclusion regarding the nature and extend of the work done, and I find that the firm in question acted as ordinary shipping agents, disbursing the various steamers, arranging for compradores, wharfage, collecting freights and generally attending to the working of the boats.  That Mr. Robertson was fully alive to the assistance he received from Messrs. H. D. & Co. is fully set forth in his letter of the 29th of June 1896 to the said firm in which he states:

"I think it advisable that we entered into the question of your remuneration for the trouble and labour you have had in connection with these steamers as this in my opinion is a very opportune moment before the Tientsin season opens again, as you certainly are entitled to remuneration 'over and above the legitimate chartering commissions and entry fees.'"

Why the amount of remuneration was not then decided upon is not for the arbitrator to determine. After carefully considering the case and making allowances for trip, charter, brokerages and entry fees secured by Messrs. Hopkins, Dunn & Co. I award that firm as agency commission the sum of $2,850.71 (Two thousand, eight hundred and fifty dollars and seventy-five cents) made up as follows:

1 ½ per cent on $188,072.47 (amount of net charter money after deducting $22,500 in respect of Trym)    . . . . .   $2,746.09

2 ½ per cent on Disbursements of Trym, Oct. and Dec. 1896, Tls. 1,5176.99 at ex. 74 = $2,037.50

5 per cent on freight secured Sh'ai-Kobe December,1896, $53.68

Total $ 2,850.71

The costs of this Arbitration, viz. Shanghai Tls. 150 (One Hundred and Fifty Taels) to be borne by each party in equal proportions (75 Taels each).

Signed, &c.

Shanghai, 26th June,1897.

   [5.] Such award has been delivered to the defendant and he has been applied to several time by the plaintiffs and their solicitor for the amount due thereunder, viz. $2,8509.71.

   [6.] The plaintiffs have paid the sum of Tls. 150 to the Arbitrator, the amount of his fee, and the defendant's share thereof is stull due and owing.

   The plaintiffs therefore pray:

[1.] That the defendant may be ordered to pay to the plaintiffs the sum of $2,850.71 together with interest thereon from the 25th day of June,1897, until final judgment, the sum of Tls. 75 and the costs of this suit.

   [2.] That the plaintiffs may have such further and other relief as the nature of the cased may require.

   Mr. Nelson said that the matter had been submitted to Mr. W. F. Inglis as arbitrator, to which both parties has agreed, as set forth in the petition, and he (M r. Nelson) contended that both parties were bound in law to abide by the finding of the arbitrator, and quoted Sec. 2, Sub-section 8, of the Arbitration Act in support of his contention. The defendant had not impugned the arbitrator and had made no answer.

   Mr. W. F. Inglis said that he had been requested by the parties to arbitrate the matter, and had received a written statement from Mr. Robertson, and had examined Messrs. Hopkins, Dunn & Co.'s accounts, and had based his award on that evidence. He had concluded many arbitration cases, especially those involving matter connected with shipping.

   Mr. Robertson had no questions to ask the witness, and stated that he intended to bring a cross-action against the plaintiffs. He admitted that he was indebted to the plaintiffs to a certain extent.

   His Lordship ruled that the parties were bound by the arbitrator's decision and gave judgment accordingly, but allowed execution to be stayed for one month in view of a cross-action being brought. Interest on the amount claimed to be at the rate of 7 per cent.

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