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Colonial Cases

Wilkie and Laufenberg v. E.C. Kirby and Co., 1870

[ship repairs]


Wilkie and Laufenberg v. E.C. Kirby and Co.

British Provincial Court, Kanagawa
Hornby C.J., 27 August, 1 September 1870
Source: Japan Weekly Mail, 3 September 1870, 417



Kanagawa, 27th August, 1870.

Before Sir Edmund HORNBY, Kt. C.J.


WILKIE and LAUFENBERG v. E. C. KIRBY & Co.-His Lordship asked what course the counsel proposed to pursue.

Mr. Hill said he understood that the former evidence was to be read and then the matter could be argued. He thought the evidence was very full and there need be no additional matter adduced.

His Lordship then read the evidence aloud.

Mr. Hill then applied to examine Mr. Wilkie upon extra work.

Mr. Wilkie deposed that he asked for $1,686.46. The amount was correct. The work was done at the request of Mr. Kirby, Capt. Kirby, and Capt. Robertson and did not form any part of the work contracted for, to be done. They know personally that the work had been done. The rig and sails he did not supply, but the wood and iron work, so that the vessel should be thoroughly seaworthy. He had charged extra for two new knightheads in place of two old ones which were in place and sesworthy. A ship would be seaworthy even if there were defective knightheads. "Two new knees for Windlass bitts" good ones were there, but they wished to have new ones.

Frederick Townley deposed to the damage actually sustained by loss of charters. A forfeited charter to Chefoo would have realized in all probability $800, and they had to pay $377.50 forfeit money. He had also to charter on the 14th February a vessel (the M. M. Jones) to go to Saigon for rice. Had the Bezaleel been ready it would have realized $1,100. The other carried 7,000 piculs at 50 cents a picul. There was also loss incurred by the engagement of sailors and captain before they were necessary. He estimated this at $300.

To Mr. Hill.-He claimed demurrage for four months and a half. No one but Kirby & Co. could have employed the vessel so profitably.

To the Court.-The ship carried about 300 tons, and her expenses averaged $700. She could not be insured. Insurance was refused because Lloyds' agent refused to certify her.

His Lordship said that unless special cases could be shown, he should not feel disposed to hold that "seaworthy" meant that the vessel should be insurable.

Captain Robertson deposed that be surveyed and certified the Bezaleel for a first class certificate in the German Lloyds. A month would have been sufficient for the extra work. In January, when he left off superintending the work, he could not have certified the risk. He gave a certificate of seaworthiness to Mr. Townley, on the understanding it should not be used till further notice from him. Nevertheless he had heard that it was made use of to get insurance, which was refused. In consequence of this, other insurance offices sent other surveyors on board. With a part of her false keel off and fifty sheets of copper to be replaced, he should not consider a vessel seaworthy. The BezaIeel's timbers were fine, though she was 29 years old. He had the knightheads pieced, as he considered them seaworthy, but knew they were afterwards replaced. The alterations below in the cabin had nothing to do with her seaworthiness. In the account for "extras," there were several items-which ought not to be separately charged for. Three months ought to have been sufficient for repairs.

To Mr. Hill.-A vessel might go to sea and be perfectly seaworthy without false keel or copper.

Captain Kirby deposed that there were no new knightheads in the vessel-only the old ones repaired; six weeks or two months were sfficient [sic] to repair the vessel. Whilst on the voyage to San Francisco, in consequence of defective ironwork, the cathead gave way and caused the loss of a jibboom and two jibs. On the way back she made seven inches of water per hour through the knightheads on the starboard bow. When the new or repaired part was out of water, the vessel was perfectly dry.

The Counsel for defendant argued that the sole issues were; "what was a reasonable time for the repairs to have been completed in?" secondly; " what damage had Mr. Kirby suffered?" It was needless to argue the accounts which ought to have been submitted to arbitration-they must be left to his Lordship-und it had been proved that two months was a reasonable time.

Mr. G. W. Hill did not admit this last. In the evidence was a variety of statements as to this. Henry Cook, an experienced ship-builder required 120 days to do the work of repair, asking $7,500 for it. If time was an essential element in the contract a penalty would have been fixed in the contract.

Another witness said three and four months were necessary to do the contract. work, besides the extra work. It took a man longer to do things haphazard than when he had a proper plan made and pursued it regularly. He could not see that the supposed profits which Mr. Townley had estimated could enter into the measure of damages. As to the phrase "seaworthy condition" its precise meaning must be determined by his Lordship. It would seem that the vessel, being unequipped with sails or rigging on the 1st April, which were to be supplied by Mr. Kirby, could not have constantly earned freight ever since the 17th January as was claimed. Whatever Captain Robertson found were requisite to put the vessel into a perfect condition, plaintiffs would be willing to take off. He had no doubt that these repairs had been delayed, but urged the appointment of Captain Kirby was a proof that defendant knew the vessel not to be ready on the 17th, and that this action tended to increase any delay.

The Judge stated that he would give his decision next week.


1st September, 1870.

Decision was given in this case. Sir Edmund Hornby said:-I am by no means certain that the plaintiffs are entitled in strictness of law to recover one farthing beyond what they have received, and had these cases been conducted on either side in accordance with the ordinary procedure, or any regard to the rules of pleading they must have failed, not on the ground, however, that the defendants had a set off by way of damages larger than the balance due on the contract. but simply and solely because it is clear on the evidence that the plaintiffs have not done the repairs, stipulated sit for by them to be done, properly and according to the meaning of the contract; they have no one but themselves to blame if they took the contract at a price less than that for which it could have been fulfilled, the terms are clear-they were to repair "thoroughly " and to deliver the vessel up in a seaworthy condition. It is clear as the result of the Yokoska survey shows, that the vessel was not " thoroughly" repaired and was not "seaworthy." The plaintiffs, it is true, procured a certificate of the defendant's Surveyor, Captain Robertson, but this certificate was given prematurely, if indeed it ought to have been given at all, which I much doubt. The repair at Yokoska were executed at the defendant's expense, and for these repairs the plaintiffs must pay, for they were necessary to the thoroughness of the repairs and to the seaworthiness of the ship.

As I have already said, I do not think that the plaintiffs are entitled to recover on their contract, but there have been so many admissions on both sides fatal to the strict legal rights of both parties making them, that I am relieved from the necessity of doing more than give a verdict which is the nearest approach I can make to an equitable adjustment of the several causes of action involved.

I give therefore to the plaintiffs their contract sun of $6,000, subject to the following decuctions, [sic] although I do not think they deserve it. In the first place I deduct the repairs at Yokohama, viz $413.98. I think the plaintiffs employed a wholly unreasonable time on the repairs which they did make, and that by so doing they caused the defendant irremediable loss, I deduct therefore $377.50 for actual loss of charter party, and a further sum of $450 for what I consider should be the wages of a captain for something less than 3 months; this will diminish the balance due to the extent of $760.

As regards the cross actions, I find that the defendants supplied goods and materials to the sum of $1,045.45: on the other hand there is a bill of the plaintiffs of $1,686.64 of which amount the defendants admit $1,177.1 but dispute the remainder. I think they are right to a great extent, as the evidence shews, in disputing the extra hill, and I shall therefore diminish their indebtedness by a sum of $260 so that on this bill of extras they will have only to pay $917 instead of $1,686, this sum must therefore be deducted from their bill of $l,045.45 which the plaintiffs owe them and the balance of $128 is due to the plaintiff. This sum, however, will have to be deducted from the amount due on the contract, $760 and when this is done a balance is due to the plaintiff of $532.

Much of this litigation however has been wholly unnecessary, and as the defendant offered arbitration, I shall not give costs to either side, but leave each party to pay his own.


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