Page
October 24, 1895.]
measured in exactly the same way as other cargoes of timber were measured.
Mr. E. Osborne, Secretary of the Godown Company, Mr. Danby, and other witnesses were called, who said that it was the custom in Hong- kong to measure timber according to Table 2 of Hoppus.
His Lordship-Subject to anything that Mr. Hastings will say I am prepared to hold that there is a trade custom here, but whether that custom is applicable in this case is what you have to deal with.
Mr. Hastings-I am with you there, my Lord. His Lordship. I mean that there is a custom in Hongkong, and here you have a charter party without any reference to the trade measurement, and the question is, will that, excuse the custom? Mr. Master again addressed his Lordship, and said that, assuming there was a custom, this charter party must be read as if the custom were incorporated. There was nothing re- pugnant to the words of the charter party if his Lordship, agreed with the custom being incorporated, and he submitted that the words could be read "each and every cubic foot of timber computed according to customary method or customary measurement." He sub mitted that his Lordship was bound to so read the charter party unless it was thought that the added words were repugnant to it. It was to be presumed that Messrs. Butterfield and Swire and Captain Wilson entered into the charter party intending to incorporate the or- dinary method of measurement in it. There was nothing to include that measurement, and therefore counsel asked his Lordship to follow a number of cases decided on the point and to give judgment for the defendants.
Mr. Hastings submitted that in this charter party the defendants had contracted out of the trade custom. Moreover, a custom was not admissible as evidence in this case because the question of what is a cubic foot has been deter mined by the law of the colony, and the fore no custom could be admitted to explain what a cubic foot was. Then again, the custom was unreasonable, and was inconsistent with the plain words of the charter party. A custom which says that a captain must carry 3,000 cubic feet of timber and not to be paid for it could not be received in evidence, as it was in contradiction to the words of the document.
Judgment was reserved.
3
21st OCTOBER.
CHINA OVERLAND TRADE REPORT.
cover the full cubic measurement. He goes on to say
that if the defendants desired to put in any custom of that sort they ought to have stipulated it in that clause. There is nothing here about the measurement except the "22 cents of Mexican dollars for each and every cubic foot," and in this respect he is rather supported by another charter party put in, which contained special words of limitation to the effect that the timber was to be measured ac- cording to Hongkong trade measurement, which, I believe, is the same as the measure- ment adopted by the defendants. Plaintiff says that when these words of limitation are omitted in a charter party they cannot be included and that he is entitled to payment for what he carried. His measurement, of course, is better, for himself, and he states that it is a more
at way to arrive
the cubical accurate contents of a round log of timber (and I think as a probable fact it is), and that there fore if the defendants take the measure- ment that is least accurate, they ought to show it in the charter party. That contention is good under ordinary circumstances, but there are features in this case which rather alter the matter. The plaintiff came down here some time ago from Borneo with timber under a charter party which contained these words of limitation. Even in the face of that he claimed to measure the timber according to his own rule. Of course he did not recover, and he was then and there informed what the invariable rule in Hongkong was, and that no other method. of measuring timber had ever been employedj What are the facts now? He goes down, and enters into a charter party with the full knowledge of the custom or regular rule in Hongkong; he is not a stranger to the custom; he goes down there with the full knowledge of it, and with the full knowledge that the defendants would reasonably expect that the timber should be measured in the usual way. It seems to me that the argument he applies to the other side, namely, that if they wish to take the least ad curate measurement they should have added the words in the clanse, applies equally to him. If he is going to put aside the usual rale and wants to take an unusual rule, he knowing what is the usual rule, he ought to have had it put in the charter party. It seems to me that he has not proved his case, and is not entitled to anything at all. Judgment for defendants with costs.
His Lordship delivered the following judg. ment-The plaintiff is the master and part owner of the British barque Stanfield, and he is suing for a balance of freight al- leged to be due on a cargo of timber brought from Sandakan to this port. The cargo consisted of square timber, planks, and round logs; but it is only in regard to the round logs that we have anything to do. The clause in the charter party-the freight clause I call it on which the plaintiff is suing reads as follows-or rather a part of it reads:--- 22 cents of Mexi. can dollars to be paid for each and every cubic foot of timber delivered in Hongkong." It is this clause under which the dispute arises. The question is, In
should the timber be measured? It is perfectly clear that before the freight can be ascertained the timber has to be delivered in Hongkong.
what way
The defendants measured that timber in a certain way which is calculated out in what has been called Table 2 of "Hoppus's Measurer "- a book which has been produced in court. They state that under that measurement the plaintiff has been paid in full, and therefore there is nothing due to him. To support their
case a number of witnesses were called who stated that they had had a certain amount of experience in the measurement of timber, and that the in- variable rule in Hongkong was to measure timber according to Table 2; and some even went so far as to say they had never heard of any other measurement, and that the measure- ment under Table 2 applied to timber fór all purposes-freight, storage, and sale. The plain tiff, on the other hand, measured his timber by Table 5 in the same book, and he states that under the words in this clause he is entitled to freight for the full cubic measurement of the timber he carried; and he further states that the measurement of the defendants does not
THE BENEVOLENT SOCIETY'S CONCERT.
305.
Castle," which was sung in the same per- fect style. Mrs. Craddock's clear soprano voice was heard to advantage in Balfe's tuneful song
Killarney." Miss Lammert sang "The dream- of golden years" in her usual pleasing style and as an encore gave "The children's home." Mrɛ. Dowler was also encored for her song
"The promise of life," to which she responded by repeating the last verse, Mrs. Marten, whose singing always affords pleasure, received a warm greeting on her appearance on the stage, and her song was of course encored. In "Over the hawthorne hedge," by Mrs. Craddock and Mrs. Cox, the soprano and contralto voices blended well and a tasteful rendering of the duet was given.
On the 16th instant & most enjoyable concert was given at the Mount Austin Hotel in aid of the funds of the Hongkong Bene- volent Society. There was a very fair au- dience, which, however, would probably have been larger had the progamme been published in advance. The entertainment had been an- nounced simply as a ballad concert, and outside the acquaintances of those more immediately interested it was not generally known who the performers were to be ar whether the concert was likely to prove attractive or
otherwise. However,
those who attended were richly rewarded and those who stayed away missed a treat. The concert was under the patronage of H.E. Sir William Robinson, K.C.M.G., H.E. General Black, and Commodore Boyes, all of whom were present.
The programme was as follows :—~ Pianoforte Solo Song "Phyllis is my only joy" Song
"Killarney" Violin Solo Song "The dreani of golden years
"Whistle an' I'll come to ye" Song
Mr. G. Grimble. Mr. Goodman. Mrs. Craddock. Mr. Gaffe. Mrs. Vallings.
Miss Lammert.
were en-
Mr. Goffe's violin playing seems to be more appreciated the oftener it is heard and both his solos on Wednesday evening cored. The Hon. W. M. Goodman gave a spirited rendering of his two songs, Phyllis is my only joy" and "Ill sing thes songs of Araby," and was warmly applauded for each. The popular Colonial Secretary, Hon. J. H. Stewart Lockhart, sang "Loch Lomond," and a number of the audience insisted on taking up the refrain as a chorus and when the song was finished having it over again.
The concert was organised by Mrs. Master, who is to be complimented on the excellent' programme that was presented.
HONGKONG PUBLIC LIBRARY.
PUBLIC MEETING.
:
A public meeting of the supporters of the Hongkong Public Library was held at the City Hall on Monday afternoon. His Excellency the Governor, Sir William Robinson, presided, and among those present were-Hon. J. H. Stewart Lockhart, Hon. T. H. Whitehead, the Rev. R. F. Cobbold, Rev. G. J. Williams, Messrs. R. Shewan, T. Jackson, G. Sharp, H. E. Pollock, E. H. Sharp, G. C: Cox, J. C. Thomson, A. J. David, A. Woolley, G. Piercy, A. J. May, C. C. Platt, J. Hastings, H. L. Dennys, W. G. Barlow, W. Stanton, and J. Duggan.
I
His EXCELLENCY-Gentlemen-I am sorry cannot say ladies and gentlemen-I can assure you that I accepted the invitation to take the chair this evening with a great deal of pleasure, because I consider that this is a very important meeting, notwithstanding, the very scant attendance; and I may say it is the most important meeting from a recreative and educational point of view that I have had the pleasure of taking the chair at since I came to the colony. I wish that. some one more qualified than I had been asked, but if there is any deficiency in my remarks it will be filled up by Mr. Cobbold, the Colonial Secretary, and Mr. Granville Sharp, who have promised to address the meeting. I have to announce to you the formation, not the in- auguration, of a public library in Hongkong. (Applause). You will probably ask, where is that public library? So far as I can see echo
answers Where ?" But Mr. Cobbold will very likely tell you. You may also ask, where are the books which form that library? Well, gentlemen, here is the catalogue of nearly 2,000 books which will form the nucleus of a library, and an additional 300 books are now on the way from England to be added to the store. One of the deficiencies in this colony is a public library. We all know there is a disconnected library, and we are all to some extent under obligations to the Club library. But the Club. library is quite inadequate. Whenever I send down a list of fifteen or twenty books I get perhaps one or two, and all the others are dut. Violin Solo
Whether they are lost or not I cannot say, such a state of things ought not Song "Loch Lomond " Mr. Stewart Lockhart. but Song "I'll sing thee songs of Araby" Mr. Gooduan.
to exist in a rich colony like Hongkong. Song
There was "Abschied" by Korchat... Mrs. Marlen.
a memorandum issued by the "Over the hawthorne hedge"
trustees of this library.in which it was stated Mrs. Craddock and Mrs. Cox that Hongkong was worse off than most of the The feature of the evening was Mrs. Vallings' small towns in Australia. Mr. Sharp will song "O whistle an' I'll come to ye me lad." enlighten us on that point no doubt. I had Mrs. Vallings, who has not previously appeared eighteen years' experience in the West Indies. in public in Hongkong, possesses a sweet and
My first Government was the Government of the flexible soprano voice, which she uses per-Bahamas. That is a very old colony with a feotly, and her singing of the charming Legislative Assembly which they have enjoyed ballad elicited an enthusiastic encore, to which for 150 years. There is a public library she responded with "Willie's gane to Melville which is publicly managed and is open from ten
Duet
INTERVAL.
:
Mr. Goffe.
i
,
the te