388.
Witness--No, I do not.
THE HONGKONG WEEKLY PRESS AND
Hopkins-Did they tell you that "grand His Lordship Did you charge for at- chop" meant a larger sum of money than the
passenger licence ? Witness--No.
tendance?
Witness--No.
His Lordship-Have you looked at your attendance book ?
Witness-I did not put it down. His Lordship-Don't you enter attendances in your book?
Witness-No, my Lord. I do not keep an attendance book.
His Lordship-You don't know when he came, is that it? It might have been the 11th, 12th, or 13th. You don't keep books?
Witness-It was a little after twelve o'clock when he came and gave me instructions.
His Lordship-We are talking about the date and not about the hour.
Witness-When the agreement was signed? His Lordship-No, when he came and gave you instructions.
Witness-It was a little after twelve o'clock, His Lordship-What date? Witness-I believe it was the 12th; I can- not say for certain.
His Lordship-It might have been the 8th? Witness-No, it was not the 8th. It was a day or two before the signing of the agree ment.
His Lordship--It might have been the 11th. Witness-It might. Ho Tim came and gave me a memorandum in Chinese, and said he was representing both parties. In the afternoon Leung Tim Po saw me and asked me to draw up an agreement in accordance with the Chi- nese memorandum as soon as possible. drafted the agreement.
I
His Lordship-Where did you get the ex- pression "passenger licence" from
Witness-I guessed that was what "shun kau kum meant.
Just think What does must have
His Lordship-You guessed it! again; wasn't it suggested to you? it mean? Just think; surely it been suggested to you, wasn't it?
Witness-No. It means ship's head money. His Lordship-It was purely your own idea? Witness-Yes.
His Lordship-You are sure of that, Mr. Ho Wyson ?
Witness-I am quite sure of it. His Lordship-Have you heard the expression before?
Witness--No. I knew that the passenger licence was necessary, and I assumed that was what "shun kau kum meant. After draw- ing the agreement Leung Tim Po saw me, and I asked him if the Chinese characters meant passenger licence.
He said that Europeans called it “
grand chop," and I understood by that that "shun kau kum was called "grand chop" by Europeans. He did not convey to me the idea that passenger licence was "grand chop." I put my pen through passenger licence" and wrote grand chop over it. I mado a fair copy of the agreement and after wards Hopkins, Chun Yat Po, and Ho Tim came in. I gave Hopkins a copy of the agree- ment and he, Chun Yat Po, Leung Tim Po, and Ho Tim had a conversation together.
His Lordship Did you not explain to Mr. Hopkins what alteration you had made?
Witness-No; I did not.
C
C
Ho Fuk assistant compradore to Messrs. Jardine, Matheson & Co., said that "shun kau kum" meant tonnage dues or "grand chop," and the term was perfectly well known amongst shipping people..
licence
Cross-examined-Hung pai" means 'red and witness did not understand it to mean "grand chop."
Carl Heinrich Rogge, ship broker, corrobo- rated the last witness, and added that the about the matter secretary spoke to him and witness asked him how he could afford to pay the grand chop, and he said the charterers would have to pay.
His Lordship said that in this case the de- fendants were not exactly the charterers of the vessel.
The supercargo on the Propontis said that 880 in fares was collected from the fifteen extra passengersį
His Lordship told Hopkins that it was a mat- ter for argument whether this money belonged to him or the plaintiffs. The agreement was that he should put on board as many passengers as the vessel could lawfully carry. He might possibly be entitled to a penalty for the extra passengers, but his Lordship could not say that these passengers were Hopkins's.
The captain of the Propontis said he reported the extra passengers as stowaways.
11
Mr. Robinson, in summing up the plaintiffs' case, contended that stowaways were not pas- sengers. The point about the "grand chop was a difficult one. There was either deliberate fraud on the part of the plaintiffs, or Mr. Hopkins had taken advantage of a flaw in the agreement and endeavoured to evade his liability. Counsel submitted that the probability was that Hopkins had risked a loss in this new venture, as he was compelled to send the coolies down.
His Lordship, in delivering judgment, said- This is a claim for money dud under an agree. ment. It is admitted that the money is due subject to a set-off which has been raised in the answer; that set-off, though perhaps not strictly the subject of a set-off. Las been dealt with for convenience and by consent of the plaintiffs. There are two heads to the defendants' claim; the first. Is that they are entitled to a second sum under a clause in the agreement which provided for a penalty if the steamship com. pany carried any Chinese passengers other than those shipped by the defendants; and the second head of the set-off is the claim for the return of 874 which the defendants had to pay for what is called the "grand chop " at Hoihow in order to enable the passengers to be shipped on the steamer, and that claim is based on the allegation of false and fraudulent misrepre- sentations by the agent of the plaintiff company in effecting an alteration in the agreement just at the time of its being signed, whereby the words." grand chop
were substituted for the expression "passenger licence;" the misrepre- sentation being that the defendant, or rather Hopkins, one of the defendants, was told by the agent of the plaintiffs that the alteration was immaterial. Now as regards the claim for the penalty the clause in the agreement is" If the said steamship should carry any Chinese passengers other than those shipped by the firm at Hoihow, then the company will pay to the firm a penalty of $20 for every such other Chinese passenger." That clause must be read in connection with the night of Hopkins, Cumming and Co. to put on board as many passengers as the steamship would hold; that is to say, of course, as many as the steamship is lawfully licensed to hold. The meaning of the Hopkins-You didn't ask him if he had my penalty evidently was to secure for Hopkins, Cumming and Co. the right to put on board all Witness-No.
the passengers which the plaintiff firm could Hopkins-You say you were acting for both carry down to Singapore. Now there is a little parties, and you did not think it worth while doubt as to how the number of passengers was reckoned on the different occasions. It to question me about the alteration?
Witness-I thought when you came round appears that the licence which was obtained at Hoihow limited the number of passengers to that you had seen it.
Hopkins-You thought I should understand 751; Mr. Hopkins has told us that he accord- the meaning of the term "grand chop"? You ingly issued 750 tickets to the Chinese hongs for distribution amongst passengers. Then we his duty as emigration officer he examined the
His Lordship-Nor to Chun Yat Po? Witness-No.
Mr. Robinson-What was the reason? Witness--I thought Mr. Hopkins knew about it. Nothing was said to me about the grand chop at the time the agreement was signed. Each party paid half my costs.
Hopkins (cross-examining)-When the secre- tary asked you to alter the agreement, did you say anything to him?
Witness-No.
sanction ?
November 21 1895.
passengers, and there are various particulars as to what he did, but the only part material this case seems to me to be the number of passengers he arrived at on the occasion of his inspection. He gives the number as 790 pag- sengers, namely, 710 adults and 80 childeren. Now Mr. Hopkins was with the Consul on the occasion, and it seems to me not improbable that that being the case these passengers which are mentioned in the Consul's certificate -were identified by him, with Mr. Hopkins's assistance, as being passengers who were put on board by Mr. Hopkins. Well, there are 710 adults and 80 children; this makes a total, reckoning each child as half an adult, of 750, which
WB
are told is the approximate standard. There is another count made afterwards at sea, when the tickets were collected, and the result of that counting was that there were 715 men and 60 children; that makes a total of 775 individuals, and it is stated there were fifteen found without tickets, whom the captain reckoned as stowaway. Well, it certainly is remarkable that the difference be- tween 790, the Consul's reckoning, and the 775, the reckoning made on board is 15, the exact number which the captain reckons as stowaways; and I cannot help thinking that it must be the case that all these people who were collected on board when the Consul saw them, that is to say 790 people, I cannot help thinking that those were the people who were represented by all the tickets which were issued by Hopkins, Cumming and Co. Further, I do not think it is really material whether these people came on board through the agency of Hopkins in this way and were actually presented to the Consul, or whether they were stowaways, because I think, looking at the agreement with Hopkins, Cum. ming and Co., the defendants got everything, as between them and the plaintiffs, that they were entitled to under the agreement. Mr. Hopkins issued 750 tickets, and according to his account 745 were used, and it is not shown or suggested that the plaintiffs shipped passengers for any other firm. Mr. Hopkins availed himself to the fullest extent as far as he could of the licence which he had received from the Consul, and inas- much as the object of this penalty was to secure that he should have the full use of the Consul's licence he got, in my opinion, everything he was entitled to. I think, as Mr. Robinson has said, if it came to the question as to whether there was any cause of action by reason of the breach of this clause of the agreement, the question would be what were really the damages suffered. The sum of $20 for every extra passenger found on the ship was meant to be what is known as a penalty, and nothing more ;* penalty and the principle of law is that when a is provided for it shall be applied, so far as is necessary, to the carrying out of the contract and no further; but inasmuch as Hopkins, Cumming and Co. got the full benefit of the licence to carry passengers it does not seem to me that the pro- vision for the penalty comes into force at all,”
think that that branch of the and therefore defendants' case has not been. consistent. It seems to me that he put on board all the passengers he was entitled to put and that certainly there was no shipment of passengers on the part of the plaintiffs in breach of the agreement with Hopkins, Cumming and Go: If the people were not stowaways it seems to me they were put on board by Hopkins, Cum- ming and Co. through Mr. Hopkins; if they were stowaways it does not seem to me that Hopkins suffered any damages through their presence. Moreover, I am strongly inclined to believe that, as Mr. Robinson suggests, if they were stowaways they would not come with- in the term "passengers" under this agree- ment. Now I have to consider the second defence. Mr. Hopkins went down to Hoihow and engaged to send off from there number of coolies, and then he had to make arrangements, in order to meet that engagement, to send down a steamer from Hongkong to Hoihow for the purpose of carry- ing the passengers. An arrangement we know was come to through the agency of Ho Tim and a draft agreement was prepared. It is suggested on behalf of the plaintiffs that the plaintiffs' secretary, who represents the plain- tiffs in this matter, knew all along and intended agreement with Hopkins, Cumming and Co.
did not know that the term was understood by find the Consul going on board and as part of | all along tộ charge, or rather to provide in the
Europeans to mean tonnage dues?
Witness-No.