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Colonial Cases

Blakiston Marr & Co. v. Howell & Co., 1870



Blakiston Marr & Co. v. Howell & Co.

Consular Court, Hakodate
Eusden, 4 November 1870
Source: Japan Weekly Mail, 26 November 1870, 570-572




Before Mr. Consul Eusden.

A. P. Porter,

G.R. Thompson, Assessors

Blakiston Marr & Co. versus Howell & Co. Mum at Co.,

4th November, 1870.


In the case in which Blakiston Mare & Co. of Hakodate are Plaintiffs, and Howell & Co. of Hakodate Defendants.

At Her Britannic Maiesty's Consulate at Hakodadi, the 1st day of November 1870.

The Plaintiffs come before me Richard Eusden, Her Britannic Majesty's Consul at Hakodadi, and say as follows:-

That Messrs. Howell & Co. havlng agreed to insure in the Akindo from Hakodate to Yokohama and subsequently refused to carry out their agreement, the Plaintiff's claim the sum of ($8,700) Eight Thousand Seven Hundred Mexican dollars, being the amount of Insurance for which they applied, and for which they notified Messrs. Howell & Co., they would hold them (Messrs. Howell & Co.) responsible in case of loss, which has occurred.

Taken before me at the time and place first above written.

(Signed) R. EUSDEN,

[L.S.] Her Britannic Majesty's Consul.


Defendants Reply,

That they distinctly and emphatically deny having accepted by word of mouth any Risk in the Barque Akindo

That they distinctly and emphatically refused in two letters dated the 5th. Oct., 1879, the Risk offered by Messrs. Blakiston Mare & Co.

That the Plaint made by Messrs. Blakiston Mare & Co., is utterly and entirely false,

Defendants pointed out that the plaint was made against them personally-and requested Plaintiffs to amend it. 1Plaintiffs refused. The Court pointed out that Howell & Co. as agents of the North China Insurance Company were held responsible and the plaint must be amended or Plaintiffs nonsuited.

DEFENDANTS offered to allow the case to proceed upon its merits.

Court.-The plaint must be altered. To Plaintiffs-will you amend it?

Plaintiff Capt. Blakiston-No-I will not.

Case dismissed. Verdict for Defendants. Plaintiffs to pay costs.


9th November, 1870,

Amended Plaint Read.-Defendants Reply.

That they distinctly and emphatically deny the acceptance of any risk in the Barque Akindo, either by word of mouth or by writing, whilst it was distinct refused in two letters dated the 4th October.

That the case has already been tried and dismissed, and that the Plaint besides being utterly untrue is unnecessary and vexatious, and Defendants possess ample documentary evidence to prove that there are no grounds for any action.

Plaintiffs represented by Captain Blakiston stated that this was an action for breach of contract. Not for Insurance, but for non-Insurance. With it was intimately connected the question of a Bill which he would-

Mr. HOWELL objected to this, the Bill had nothing to do with the Insurance. It would be the subject of an action which he should subsequently bring against B.M. and Co.

Court overruled objection, and Captain Blakiston proceeded.-Before the 30th September Messrs. Howell & Co. wished to remit money to Yokohama, and in a measure pressed it upon Plaintiffs. Mr. Wilson several times asked Plaintiffs to take it. Plaintiffs agreed to do so, if they could place it with Japanese who were shipping by the Akindo, but they only wanted it, if they could get Insurance.

Cross-Examined by Mr. Howell.-In consequence of a dispute or misunderstanding about the wording of the Bill, you did request us to return the money, and cancel the Bill, but we refused to do so.

Mr. Duus Examined by Captain Blakiston.-I heard Mr. Wilson speak to you about the Bill and ask you to take the money. You twice asked about Insurance, but he did not reply. I surmise that you only wanted to get the money, if you could get Insurance. It is not unusual to give merely a verbal request for Insurance. I would do so if I met Mr. Howell in the street. I sometimes accept a Risk verbally, and sometimes say "write." B. M. & Co. did not apply to me before the 4th September.

By Mr. Howell.-I have accepted Risks verbally, but I cannot recall even one particular occasion. Messrs. B. M. & Co., applied to me for the same Risk on the Akindo, as you refused. I declined to accept it. I did not then know that you  refused it. It is not usual to note Risks that are declined.

Captain Blakiston proceeded.-Some time before the 30th September, M. Wilson came to our office and asked us to draw on Yokohama. I said that we should want Insurance. He said-"Have you a survey Report?" I said-"No, and we never give them." After some conversation he turned to Captain Wills and said-"How about the Akindo? Captain Wills said-" She is as good a Risk as any on the Coast." He then said-"Then the Insurance will be all right"? I considered it settled. Exhibit A. and B.

By Mr. Howell.-I did not say to Mr. Wilson. "In the event of any difficulty about Reports we always insure ourselves"! On my oath I considered it all arranged before the 30th September.

Mr. Howell.-If so, why did_you write, (see letter C. dated the 1st October) saying that you "will arrange the draft and Insurance on Monday, the 3rd October"?

Captain Blakiston.-"I meant I would send particulars, I considered the Risk settled and would give details when the vessel was loaded."

Mr. Howell.-called upon the Court to dismiss the ease, as Plaintiffs case was now disproved. 

CAPTAIN BLAKISTON Continued.-After receiving the draft, Messrs. Howell & Co. requested us to alter it to ten days' after sight instead of ten days after arrival of the Akindo, but we refused as we had agreed ten days after arrival (letter D. It was written before Howell & Co. declined Insurance). We sent two letters early on the morning of the 4th in one envelope, one about the Bill E. and one about the Insurance F. the former was answered immediately, but the latter not till past two in the afternoon, when G. was sent. It was delivered byMr. Wilson to me and seems as if held back and only produced as a threat to us to alter the bill, which we think was objected to by third parties to whom Messrs. Howell & Co. wished to give it.

Mr. Howell strongly objected to the imputation of any such unworthy motives. The Court must see that their refusal to insure diminished their security on the bill. It was absurd to think that they increased their risk by refusing Insurance if they had agreed to insure. He could prove that two months ago, he had publicly stated that without a report, he would accept no risk in the Akindo.

CAPTAIN BLAKISTON.-Resumed. We then sent in H, to which we received K from Messrs. Howell & Co. who declined to continue the correspondence. On the 4th October we applied for Insurance to Mr. Duns, agent of the Canton Insurance Company. He declined. We wrote to the Hongkong and Shanghai Bank, enclosing drafts and were so sure that we were insured that we said so. We also accepted a risk for a Japanese and charged him 1 1/2 percent and received premium. We had two opportunities of writing for Insurance, one to Shanghai and one to Yokohama, but we considered ourselves already insured. The sum we sue for is but a small part of the loss. We wrote to Messrs. Grauert & Co., stating that owing to a misunderstanding we were not insured here, and requested them provide it. Our letter arrived after the news of the loss of the Akindo.

By Mr. Howell.-The letter to the Hongkong and Shanghai Bank was written before 2 o'clock on the 4th. It went to Yokohama though you declined on the 4th, and the Akindo did not leave until the 6th.

Mr. Mann Sworn; am partner in Blakiston Marr & Co. Do not remember date, but it was before the 30th September when Mr. Wilson in our office spoke to Captain Blakiston about the bill. I overheard the conversation. Captain Blakiston asked for Insurance and Mr. Wilson asked Captain Wills; "How about the Akindo"? Captain Wills replied that "She was as good a risk as ever." Mr. Wilson then said "Then the Insurance will be all right." We agreed to draw a bill payable ten days after the Akindo arrived. Mr. Wilson came twice to get us to alter it or return the money, but we would do neither. I fully considered the Insurance accepted.

By Mr. Howell.-Mr. Wilson did not speak to me. I never heard Captain Blakiston offer to accept the risk himself. I accepted a risk for a Japanese and charged 1 1/2 per cent. Before the Akindo left, I told him that you had refused and offered to return the premium. He requested us to put it to his account. He still holds the receipt.

Exhibit D is in my handwriting, but I wrote it before two o'clock on the 4th, which is proved by our also writing toYokohama stating that we were insured. The bill has not been paid, and we have declined to accept it here; I refuse to answer whether it will be paid or not.

Captain Wills.-Am master of the Schooner Khankai; do not remember the date, but one day in Captain Blakiston's office, I overheard a conversation with Mr. Wilson. Captain Blakiston asked for Insurance and Mr. Wilson said "It would be all right." He then turned to me and said, "the Akin-do is all right, I suppose?" I replied-as good a risk as ever or words to that effect; I also overheard the terms of the bill, ten days after the arrival of the Akindo.

By Mr. Howell.-I decline to state if I have a Master's Certificate. I was made Captain in March 1869-no, 1868. Have a bad memory for dates. Mr. Wilson only said "all right " once, and he accepted the risk before he turned round to me. Messrs. Blakiston Marr & Co. are my owners and agents. I only know them.

Mr. Howell, commented severely upon the conduct of the Plaintiffs in bringing such a case into Court. It was a discreditable attempt to fix upon defendants a loss which had been caused by the obstinacy an discourtesy of Plaintifs. Insurance there was none. Contract there could be none, for the parties were not agreed, and no consideration was paid for offered for the risk. Messrs. Blakiston Marr & Co. would never have paid the premium if the vessel had arrived safely, but they took 1 1/2 per cent from a Japanese. They are perfectly passive till they hear of the less. They then, without a word of notice or remark, with their consistent rudeness, at once commence an action. The North China Insurance had gained universal credit by its liberality in meeting claims, but would resist all attempts in which equivocation or deception was practised. He met the case on its merits, though he might have requested instructions from the head office. He called attention to the contradictory evidence of the plaintiff's witnesses, one a partner and sufferer by the loss, and one a Captain of their schooner. He also showed that his firm, being Agents for an Insurance Company, it was their business to accept risks, and they could only decline them, if doubtful of the risk. He called upon the Court to dismiss the case and award him costs for having to defend a vexatious and discreditable suit.

He called Mr. J. A. Wilson-Am junior partner in firm of Howell & Co. Remember the circumstances of the conversation at Mr. Duus's and at Captain Blakiston's oflice. To the best of my recollection I never accepted any risk and certainly never considered that I did so. On the first application I said "Have you a report?" to which Captain Blakiston replied "No, and we never give them. In case of dispute we always insure ourselves." I then said "then I suppose it is all right," meaning that they would now insure themselves. I enter all the risks accepted. Book produced. There is no entry of any risk by the Akindo. I never asked Mr. Marr for particulars of Insurance. I have no power to accept a risk without consulting you. The Bill and the risk were totally unconnected. Mr. Marr informed me in Mr. Alexiiff's that they declined to accept the bill because when they gave it they considered themselves insured which they afterwards found they were not.

By Capt. Blakiston.-There was no particular reason why one of your two letters was answered a few hours before the other. I think it was because Mr. Howell was up at the house at breakfast, and he answered that of Insurance. I do not remember delivering that letter to you; I might have done so, but do not remember it. You refused to return the money or alter the bill though I went twice to your office-you always said that it was according to our verbal agreement. I did not so understand it though your letter says clearly ten days after arrival, but mine of the same date says as distinctly ten days after sight. I sign Policies and risk notes

Court adjourned.


10th November, 1870.

Decision of Court.

Plaintiffs all the time were labouring under the idea that they were insured which they were not. There are therefore no grounds for any suit.

Judgment for Defendants. Plaintiffs to pay costs.

Assented to. A. Porter.

Dissented from. G. Thompson.-As I consider that Messrs. Howell & Co. ought to have replied to Messrs. Blakiston Marr & Co.'s letter of the 30th September.

Defendants applied for their costs.


30th September, 1870.

Dear. Wilson,

Shall want to insure about $8,000 on Cargo of Akindo will send particulars to-morrow.

If you want to do the Rios 2,500 let us have answer at once, and I will send my banto to look at the Niboo stamps. Perhaps can do some more on Akindo: don't know yet. Terms for whatever we take, Boo for Boo 10 days after arrival of Akindo, Draft on Hongkong and Shanghai Bank.

Yours truly,

T. B.



30th September, 1870.

Dear Blakiston,

Herewith the Rios 2,500 as per your order; should you want any more, you can have it on the same terms, viz: Boo for Boo, Draft 10 days sight on Hongkong and Shanghai Bank.

Kindly let me know if the Akindo will leave on Sunday evening for certain. Brent wants to go to the country for two days, and should like to be in time to write our letters.

Yours truly,




1st October, 1870.

Dear Wilson,

We will take now Rios 1,500 more, making up Rios 4,000, and will arrange draft and Insurance on Monday, between now and which time we may be able to work off some more in same way.

Yours truly,




Hakodate, 4th. October, 1870.

Dear Sirs,-Herewith we beg to hand on Draft on the Hongkong and Shanghai Banking Corporation, Yokohama, for the sum of Rios 4,000, payable ten days after arrival of the Akin do at that Port as agreed upon.

An acknowledgment will oblige.

Yours faithfully,




4th October, 1870.

Dear Wilson,

The Draft is made out as verbally agreed upon between you and Blakiston, and as you wish I have now inserted "payable in Nibookins" that being the coin we received from you.

As the draft is, it is unnecessary for your giving any guarantee that the same will not be presented until the Akindo's arrival at Yokohama.

In the event of the loss of the Akindo on her present voyage, this Draft will meet with due honor ten days after the fact of her loss has reached Yokohama.

Yours truly,


Draft for Rios 4,000 enclosed. 

E .


Hakodate, 4th Oct., 1870.

Messrs. HOWELL & Co.,

Agents N. 0. Insurance Co.

Dear Sirs,

Please Grant Policy of Insurance on the undermentioned articles shipped by us per Akindo for Yokohama.

Valued at

517 bales Seaweed   $1,500.00

15 Guns and Appurtenances   2,000.00

159,612 Salt Fish    5,200.00

In all...  $8,7000 [sic]

Say eight thousand seven hundred Dollars.

Yours truly,




Hakodate, 4th October, 1807.

Messrs. Blakiston Marr & Co.,

Dear Sirs,-In reply to your request of to-day's date for insurance on the Akindo we shall feel obliged by your sending us a certificate that the repairs effected here since her disaster on the 19th July have not disqualified her from the class she previously held.

Yours truly,


Agents North China Insurance Company.



Hakodate, 5th October, 1870.

Messrs. Howell & Co.,

Agents North China Insurance Company.

Dear Sirs,-As we distinctly arranged with your Mr. Wilson (at which time there were witnesses present) for Insurance per Akindo we think it right to inform you before the sailing of that vessel, that in the event of loss on the present voyage, we shall- hold you responsible to the extent of the amount stated in our note of yesterday.

Yours faithfully,



Hakodate, 5th October, 1370.

Messrs. Blakiston Marr & Co.,


Dear Sirs,-If-our Mr. Wilson agreed verbally to accept your risk, we are surprised that you ever considered it necessary to make any further application. Mr. Wilson denies ever having accepted any risk and therefore the notification that you make even if regular or business like, is wholly inapplicable and of course we repudiate it.

Before granting you a policy of Insurance we requested you to give us a survey report, which you are quite able to do. With it, we will accept a risk, if it is satisfactory; without it we decline, and shall notify the Agents of the Company at Yokohama and Shanghai of our reasons for so doing.

Yours faithfully,


Agents North China Insurance Company.



Hakodate, 5th October, 1870.

Messrs. Howell & Co.,

Agents North China Insurance Company.

Dear Sirs,-In order to correct an misapprehension you may be under regarding Insurance per Akindo, we have to say that yesterday we sent such particulars of Insurance as we had stated we would do to your Mr. Wilson when we knew what we wished to cover. 

At the time of your Mr. Wilson's agreeing to insure we distinctly told him that we never furnished survey reports, nor are we now going to depart from that rule. As Agents for Insurance you could have satisfied yourselves as to the seaworthiness of the Akindo.

We still hold you responsible in the event of loss.

Yours faithfully,




Hakodate, 5th October, 1870.

Messrs. Blakiston, Marr & Co.


Dear Sirs.-We regret the necessity to correspond again on the subject of your application for Insurance and this letter must close it as far as we are concerned.

Without again referring to the question of acceptance or not by Mr. Wilson, we have simply to point out to you that no Insurance is valid until the Policy or Risk note is made out, and the premium paid, and no amount of verbal acceptance, which we deny, and no amount of notification of our responsibility from you can make us liable. Insurance like any other contract must be for value received, on both sides on agreement mutually made.

It is not our custom either, to apply for survey reports, when as in the case of the Akindo, the class of the vessel is well known, but under the exceptional circumstances of her accident, and undergoing repairs at a Port like this, we require to be satisfied, that she is-as regards her class-still a first class risk. Unless therefore such report is given to us we cannot recede from our refusal.

Yours faithfully,


Agents North China Insurance Company.



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