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Colonial Cases

Tsai Kwei-Sung v. The China Navigation Steamship Company, 1899

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Tsai Kwei-Sung v. The China Navigation Steamship Company

Supreme Court for China and Japan
Hannen CJ, 9 May 1899
Source: North China Herald, 15 May 1899


 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 9th May.

Before Sir Nicholas J. Hannen, Esq., Chief Justice.

TSAI KWEI-SUNG v. THE CHINA NAVIGATION STEAMSHIP COMPANY.

   This was an action in which the plaintiff, the master and owner of a Chinese junk sought to recover damages from the defendants in respect of injuries caused to his junk by the s.s. Hangchow colliding with her at Woosung in the evening of the 21st of January last.

   Mr. Duncan Mc Neil (Messrs. Dowdall, Hanson and McNeill) appeared for the plaintiff, and Mr. W. A. C. Platt (Messrs Strokes and Platt) for the defendants.

   Mr. McNeill in opening the case read Petition and Answer, which were as follows:

   [1.] - The Ching Yung Li is a Chinese five-master junk and at the time of the collision hereinafter mentioned was mammed by a crew pf fifteen hands all told.

   [2.] - At about a quarter to 7 p.m. on the evening of the 21st January 1899, the Ching Yung Li was on a voyage from Kiaochou to Shanghai with a cargo of Shantung cabbages was lying at anchor at Woosung on the Pootung side of the Whangpoo River nearly opposite Woosung Village. The wind at that time was about North, the weather fine and clear, and he tide about half-flood.

   [3.] - A few minutes before such time a screw steamer which proved to be the Hangchow was noticed at a distance of about three quarters of a mile coming down the ri ver.

   [4.] Shortly before the Hangchow got abreast of The Ching Yung Li she appeared to change her course to starboard and instead of proceeding down the river she came rapidly over to the Pootung shore where the Ching Yung Li was anchored and struck the Ching Yung Li about midships on the starboard side with her stern causing the Ching Yung Li to sink at her moorings, and doing great damage to her.

   [5.] - A good look-out was not kept on board the Hangchow.

   [6.] - The Hangchow was proceeding at too great a rate of speed before the said collision.

   [7.] - The helm of the Hangchow was improperly ported before the collision.

   [8.] - Those on board the Hangchow improperly neglected to starboard her helm before the collision.

   [9.] - The Hangchow improperly neglected to keep out of the way of the Ching Yung Li.

   [10.] - The Hangchow did not duly slacken her speed and stop and reverse her engines before the said collision.

   [11.] - The said collision and the damages and losses consequent thereon are attributable to the negligence and improper conduct of those on board the Hangchow. No blame is attributable to the Ching Yung Li or to any one on board of her.

   The Plaintiff prays:

   [1.] - A declaration that he is entitled to damage produced and the condemnation of the said steamship Hangchow therein and costs.

   [2.] - To have an account taken of such damage with the assistance of Merchants.

   [3.] Such further or other relief as the nature of the case may require.

(Signed) J. C. HANSON.

   The Answer of the owners of the steamship Hangchow to the Petition filed on behalf of the owners of the Chinese junk Ching Yung Li is as follows:

   [1.] - They admit that on the evening of the 21st January 1899 the Chinese-owned junk Ching Yung Li and the steamship Hangchow came into collision in the River Woosung under the circumstances hereinafter recited and they deny all the allegations of the petition so far as they are at variance with the statements hereinafter set forth.

   [2.] - The British screw steamer Hangchow of about 1572 ton register and worked by engines of 180 horse power nominal with a crew of 36 hands left Shanghai on the 21st of January with a general cargo bound for Kobe Japan.

   [3.] - About 6.55 p.m. the Hangchow with her regulation lights duly exhibited and burning brightly and a good look out kept on board her crossed the inner bar of the Whangpoo River her engines going slow ahead. There was a little moon nine days old, but it was obscured by the clouds, the wind was about North by East and the tide was about last quarter flood. The Hangchow so proceeded keeping to that side of the mid channel which lay ion her starboard side and close over to the junks and pilot-boars anchored on the Pheasant Point side of the Channel. There was a steamship approaching her going up the river on the Woosung side of the Channel. When near the Customs hulk Kwa-shing, those on board the Hangchow saw two Chinese junks near the Woosung Creek standing across the river under reduced sail towards Pheasant Point. The two junks were a little on the port bow of the Hangchow and neither of them had any lights showing. The engines on the Hangchow were at once stopped; both junks then kept away in order to un up the river, and if they had kept their course no damage or collision would have ensued. Suddenly however the outer or northernmost one, which afterwards proved to be the Ching Yung Li, hauled up again across the river and across the bows of the Hangchow. The engines of the Hangchow were put at full speed astern but nevertheless the Ching Yung Li came into collision with the Hangchow, striking the Hangchow's stern with her starboard side.

   [4.] - The Hangchow having backed clear of the Ching Yung Li anchored and despatched boats to her assistance. When the boats arrived alongside the Ching Yung Li they found her anchored, but eventually with the assistance of those in the boat her anchors were got up and she was beached in shallow water.

   [5.] - The said collision and the damages and losses consequent thereon are attributable to the negligence and improper conduct of those on board the Ching Yung Li. No blame is attributable to the Hangchow or to any one on board her.

   Mr. McNeill, in opening the case, said that in all these cases there was generally a considerable conflict of evidence, but in this instance it was more marked than usual. After a brief reference to the claims of the respective parties he proceeded to call evidence. The first witness sworn was,

   H. Robinson of the Customs Service, who said that on the 21st of January he was on board the hulk Kwashing and remembered the collision which occurred close there between a junk and the Hangchow about seven in the evening. He did not actually see the collision, but on hearing a noise he went out on deck. He saw the steamer backing out clear of the junk, which appeared to be at anchor, without as far as he could see any sails set. In the afternoon he noticed a number of junks at anchor at the usual junk anchorage.

   By Mr. Platt - The junk appeared at anchor, although he could not see whether the anchors were down. Witness pointed out the position of the junks at anchor which he saw in the afternoon.

   Mr. A. Copeland also spoke to being on the Kwashing on the day in question when the collision took place. He was down below at the time but when he heard the people on the junk crying out he ran out on deck. He saw the Hangchow backing out of the junks. He could not see which was the junk from which the cries were proceeding. He went out in the gig to render what assistance he could. The junk in question was anchored with two anchors, and in the afternoon he noticed a number of junks all anchored in this spot. That was the proper junk anchorage.

   By Mr. Platt - He did not identify the junk which was collided with as one of those he saw at anchor in the afternoon; if it had been flood time at the time the junks would have been swinging with sterns up steam.

   Ta Kwei-sin, master and owner of the junk in question, stated that he had returned from Shantung to Woosung with a cargo of cabbages for Shanghai. He arrived at Woosung at two o'clock in the afternoon and anchored with two anchors, one at the bow and the other at the stern. The junk was heading upstream, there bring a number of other junks around. He was on the deck at the time the collision took place. He saw the steamer coming down and noticed four junks under way, bound into Shanghai. Those on the steamer called out to the junks, but they could not get out of the way, and the steamer, which proved to be the Hangchow, crashed onto them. The junk commenced to sink, whereupon the steamer let go her boats to save the lives of the crew. The compradore of the steamer told him not to be afraid, but to go up to the hong and the steamship company would settle the claim. The owners of the Hangchow offered him Tls. 500 to settle, but that was not sufficient. After the collision the junk was towed to Shanghai. They did not start to repair the boat because they had no money. At the time the collision occurred they had no sails set.

   By Mr. Platt - He anchored at Woosung on arrival, in order that the Customs authorities might examine the nature of the cargo. It was the rule. The Customs officers came on board at half-past three. These were the native Customs. Flood commenced to make about half past six, but although there was a favourable wind he did not start for Shanghai, because he was not clear of the Customs and had no permit. He did not receive his permit when the officers came on board at half-past three. As a rule he only dropped one anchor - but always two if he was going to remain over the night - on account of the setting flood. He made up his mind at six o'clock to remain overnight. 

   The witness, replying to further questions, corrected his evidence by saying that there was no anchor at the stern, both being at the front, one on either side.

   A plan was produced showing the head of the junk pointing up stream. He did not show another plan to Captain Whittle showing the head down stream. Witness indicated the position of his junk as compared with the Kwashing. After the collision one of the officers severed the cable of his anchors after saving their lives, and towed them to a certain spot he pointed out on the plan where they were beached. The hawsers that the officer cut were in the bow.

   (Re-examined) - The anchors had not yet been recovered but he had a man in a sampan on the look-out, a small buoy having been made to mark the spot. He was mistaken when he said there was one anchor at the stern. Both were in the bow.

   Ching Chung-sung, a sailor on the junk, was called and spoke to being on deck when the collision took place. They put down one anchor when they arrived and another at half-past three, both being down when the collision took place. They had no sails set and were pointing up stream. After the collision the steamer let go the lifeboat and saved them. He was saved by the Chinese Life Saving Society. The junk carried three lights. He lighted the lamps himself at half-past five.

   By Mr. Platt - The native Customs official came aboard at four p.m., but he did not give a permit to sail, and that was the reason for anchoring for the night. The Captain told him so. They were anchored on the Pootung side. The other junks were all heading up stream.

   Ching Fung-ting, a sampan man, spoke to having been watching the buoy for the anchors since the collision. The anchors had not been recovered and the buoy had been moved.

Cross-examined - He had not pulled them up because he had received no orders to do so.

   At this stage the Court adjourned for tiffin.  On re-assembling Mr. McNeill said he had no more witnesses to call.

   Mr. Platt said he should at once proceed to call his witnesses for the defence, who would tell their story, and His Lordship would notice that the whole difference between the story for the defence was that the defendants denied the junk was at anchor, but said she was under way.

   Mr. Joseph Pierce, captain of the Hangchow, was then examined and said he had held a masters' certificate for the last sixteen or seventeen years. He had been in command of the Hangchow for the last eighteen months, and left here on the evening of the 21st of January last with a general cargo for Kobe. His vessel was drawing 13 feet 9 inches forward and 16 feet 9 inches aft. The lights - the usual lights - were burning brightly. He was on the bridge with the second officer and a quartermaster. The chief officer was on the forecastle head in company with a weather look-out man, the boatswain, the carpenter, and perhaps another sailor. The wind was North by East.

   He left the buoy at Shanghai at 5.10 p.m., the young flood then just making, and the ships in the lower reach straightening up to the flood when he passed. The tide was in the last quarter flood, one hour and twenty minutes before high water, when he was at Woosung. The junks at anchor there were swung to the flood and the tide - neap tide, was about two knots in mid-stream, possibly less. The weather was fine, but cloudy. It was between 6.45 p.m. and 6.50 p.m. when he crossed the inner bar. The engines had been going slow and stopping, waiting for water, there being insufficient water on the bar. When they reached the bar the engines were put at half-speed at the half-mark. Passing this mark she was put close over to the Kwashing in consequence of another steamer coming in. Between the mark boat and the Kwashing he saw a junk close to Woosung Creek, with two sails set, and just about the same time he saw a junk with three sails set. Witness pointed on the plan produced the position of the two junks referred to. The Hangchow was still hedging over "port a little," "steady," past the Kwashing. The junk had no lights but appeared to be end on, ready for s ailing up the river. 

   Had she proceeded on that course she would have cleared him, but the three-sailed junk shut her in from view. As the three-sailed junk shut in the two -sailed junk the sails in appearance got mixed.

   They were then getting pretty close and he ordered the engines to be slowed and afterwards stopped. He expected then to see the two-sail junk astern of the three-sail junk but she did not and he afterwards saw the two sail junk open out heading across the river. She had then changed her course from the time he first saw her. It was quite impossible for him to see her change her course while shut in by the three-sail junk. There were numerous junks at anchor at the Pootung point below the Kwashing and a large Ningpo junk anchored in a position which he described. 

   The two-sail junk opened out and he, seeing a collision was inevitable, ordered the engines full-spoeed astern. The Hangchow struck the junk a little abaft amidships just about right angles with the stern on the starboard side. The engines going astern caused the steamer's helm to go a little to starboard with the weight of the junk crossing the bow at the same time and carried the junk under the quarter of the Ningpo boat. He let out the boats as soon as possible but before they got there the Kwashing men had sent out their boats. As it was impossible to estimate the damage done he gave orders to have the junk beached, which was done. He also sent the second officer later to see if any damage had been done to the Ningpo junk but she had sustained no injury. 

   The whole of the junks at anchor were swinging with the flood, sterns upstream. A junk anchored with two anchors at the bow would swing with the tide. The wind that night would have assisted the junks to swing with their sterns up stream. The Hangchow whistled on several occasions. In the first place to a junk that passed between them and the mark buoy and several times afterwards particularly to warn the steamer coming in.

   By Mr. McNeill - He was quite confident that all the junks he saw were swung with their heads in one direction. The full speed of the Hangchow was between ten and eleven, but deep ten. They were full laden but not down to their marks. Their speed in open water would be ten and a half knots. At half speed in open water they would steam five knots in the river, and at full speed ten with a clear stream.  He personally gave the orders with regard to the engines. A deck log was kept on the ship by the officer on duty. This officer entered them on a rough log and they were entered on the ship's log by the Chief Officer afterwards. The log produced was not signed by him because there had been an erasure and it did not quite agree with the deck log. But as far as he knew the original entry made by the Chief Officer was quite correct. It was an oversight that he had not signed it since.

   The Hangchow steered well but she was rather unfortunate. He had heard that she had been in trouble previously. The engineer on watch made the engine room-log on a board or a slate from which the Chief Engineer made up his log. 

   It seemed a foolish course for a junk to shape for Shanghai to head across the river and then back again.

   The Captain of the El Dorado did not visit him immediately afterwards. So far as he knew nobody hailed him from the El Dorado.

   Re-examined - The Kwashing and the mark boat like the junks were swung with their sterns up the river.

   William MacAdam, Chief Officer of the Hangchow, was called and said he had held a master's certificate since 1880. When the vessel sailed he was on the forecastle head with others. When he first saw the junks they were about 200 or 300 yards away. They had no lights. When he first saw the junks he could not say whether thee engines of the Hangchow were stopped or not, but at any rate she was not going very fast. Witness corroborated the evidence given by Captain Pierce.

   By Mr. McNeill - It was his duty to write up the log, and the log produced did not pass the Captain because it did not quite agree with the deck log. The deck log was not exhaustive enough and he amplified the log in consequence of what the engineer told him. He had not seen the engine-room log.

   At this stage, by the permission of his Lordship (there being no objection on the part pf Mr. Platt) Mr. McNeill called,

   Yang Cha-ming, who said he was compradore of the Hangchow and at the time of the collision was on deck. He did not actually see the collision, but heard the crash. He looked over the side and saw the junk was stopped and the hawser cut. She had no sails set. He asked the laodah about the anchors and he replied that the hawser was cut. The collision took place in the junks' anchorage and not in the fairway. The plan produced gave a correct idea of the situation.

   By Mr. Platt - He saw a number of junks and they were swinging with their sterns towards Shanghai. He could not say whether this was in every case but when he went in the damaged junk she was in that position.

   Mr. Platt then called,

   Wm. John Ewing Foray, the Second Officer of the Hangchow, who gave similar evidence to the Captain and the Chief Officer. When he boarded the ship he did all he could to stop the Chinese round about from stealing the cabbages with which the junk was laden.

   Cross-examined - He was not giving any orders. He had to enter the orders in the log.

   A sailor on board the Hangchow at the time of the collision was called and stated that the junk was sailing when the collision took place.

   George Woolley, Second Engineer of the Hangchow, deposed to being on duty on the night in question. When they received orders from the deck it was customary to enter them on a black board from whence they were copied into the Chief Engineer's log.

   Mr. Platt asked for an adjournment through circumstances he was unable to control. He wished to call the Captain and Chief Officer of the El Dorado who as independent witnesses could state that the junk was under way. Unfortunately the El Dorado sailed on Monday and they had been unable to obtain the Captain's evidence.

   Mr. McNeill offered no objection to an adjournment.

   His Lordship accordingly postponed the further hearing, pending the arrival of the El Dorado.

 

Source: North China Herald, 22 May 1899

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 18th May

Before Sir Nicholas J. Hannen, Chief Justice.

TSAI KWEI-SUNG v. THE CHINA NAVIGATION COMPANY, LTD.

  This was an action in which the plaintiff, the master and owner of a Chinese junk, sought to recover damages from the defendants in respect of injuries caused to his junk by the s.s. Hangchow colliding with her at Woosung on the evening of the 21st  of January.

.  .  .  The case (fully reported in these columns) was adjourned from the 9th inst. for the testimony of the captain of the Indo-China steamer El Dorado, which was steaming up the river at the time of the collision.

  Captain Tamplin was now called and spoke to the circumstances, stating that the junk was under way when the Hangchow collided with her.

  His Lordship dismissed the petition with costs.

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