November 11, 1896.1
5th November.
ADMIRALTY JURISDICTION.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE.)
CHINA, NAVIGATION COMPANY, LIMITED,
· V. ́8,8. **NORMANDIE.'
In this action the defendants moved for an
order that all proceedings in the suit should be stayed pending the hearing of an appeal to the Privy Council from H.B.M. Supreme Court of China and Japan.
Mr. J. Francis, Q.C. (instructed by Messrs. Johnson, Stokes, and Master), appeared for the plaintiffs and Mr. E. Robinson (in- structed by Mr. Hastings, of Mr. V. H. Deacon's office) represented the defendants.
Mr. Robinson said that in the suit in which an appeal had been lodged the owners of the Norwegian steamship Normandie are the plaintiffs and appellants and the owners of the British steamship Pekin are the defendants and respondents, and plaintiffs in the present suit. An affidavit had been filed by Mr. Hastings which set out the facts of the case on behalf of the defendants in the present suit. Mr. Hastings, in his affidavit, said that he had perused a copy of the record of the proceedings in the suit at Shanghai. From information gained from such perusal he was able to state as follows. The suit was com- menced on the 22nd April, 1896, by the filing of a petition by the defendants in which they alleged, inter alia, that on the 3rd April, 1896, a collision occurred between the steamships Nor- mandie and Pekin in the River Whangpo, and that the Pekin was to blame for the collision. The Normandie claimed damages against the Pekin by reason of the collision, and on the 9th May the plaintiffs, the owners of the Pekin, filed their answer to the petition, in which they alleged that the Normandie was highly to blame for the collision. On the 12th May the plain- tiffs petitioned for leave from the Court to file a counterclaim against the owners of the Nor- mandie, and it was ordered that the hearing of the suit and counterclaim be taken together. In pursuance of such leave the plantiffs, on the 14th May, filed their answer and claimed that the owners of the Normandie were liable for damage and loss sustained by the plain tiffs by reason of such collision and for the costs of the action. The trial of the suit and counterclaim was held on the 19th May and on the 26th May judgment was given therein, the Court finding the Normandie highly to blame, and it was ordered that the defendants' action be dismissed with costs, and
CHINA OVERLAND TRADE REPORT.
interim. Counsel then quoted several cases in support of his argument and submitted that the Normandie having given security there could be no oppression or hardship to the plain- tiffs in a stay of proceedings.
Mr. Francis said the plaintiffs opposed the application to stay proceedings in the suit on the ground that there was no appeal pending in another case in which the Pekin were the plaintiffs against the Normandie; that, al- though there were certain proceedings taken in Shanghai in the Supreme Court by way of countercloim in the suit instituted in that Court which, if the Court had had jurisdiction to try it and had tried it and given final judgment in it, would have prevented the plaintiffs taking these proceedings here, the proceedings by way of counterclaim in Shang- hai were absolutely null and void, the Court having no jurisdiction to entertain them; and that there was no final judgment, as his learned friend had shown in the affidavits he read, the Court having itself refused to enter a final judgment. The Court had given merely an interlocutory decree which carried no effect except to authorise the Registrar to investigate the damages. There was no final decree in the suit from which an appeal could be entertained. In Admiralty there were two different sorts of decree. One was an interlocutory decree, which simply pronounced a vessel to be at fault or not and which referred the case to merchants to ascertain what, if anything, was payable in respect of the finding. That was only a finding on the facts; it was not a judgment.
His Lordship-Does not an interlocutory decree, as you call it, settle the main question as to the liability P
Mr. Francis submitted that it did not if it could not be given effect to. His principal answer was that the Court had no jurisdiction to entertain the counterclaim or to pronounce any opinion whatever with reference to that counterclaim or to pronounce an interlocutory decree. But counsel denied that this was an interlocutory decree in form, and if it was he said the Court had no jurisdiction to pronounce
it.
His Lordship-Do you want me to go behind the decree, so to speak P
Mr. Francis replied that he certainly did, as the proceedings on the counterclaim were an absolute nullity, and the Privy Council could not entertain the questions arising on the counterclaim.
His Lordship Is not that for the Privy Council to determine ?
Mr. Francis-No, my Lord, the Privy Coun-
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His Lordship What about the dismissal of her action ? The Shanghai Court dismissed her action. Are not the Privy Council entitled to say that the judgment was wrong ?
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His Lordship-I am throwing the counter- claim out.
Mr. Francis-The only question that the Privy Council has to decide is, not whether both parties are to blame, but the negative or affirmative of the proposition that the Pekin was to blam the collision. If the Privy Council finds that the Pekin was to blame for the collision, of course the judgment of the Shanghai Court will be reversed on that point. The question of whether the Normandie was to blame as well is not in that case before the Privy Council. The Normandie alleges that the Pekin was to blame. and she wins or loses on the strength of that allegation. The only question on the appeal is, was or was not the Pekin guilty of negli gence which led to the collision? The question to be tried in the suit now pending before your Lordship is not is the Pekin to blame, but the Pekin's allegation that the Normandie was to blame and that she was guilty of neg ligence. If there is no final judgment there is no appeal possible.
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Counsel then drew his Lordship's attention to the fact that the Shanghai Court had de- liberately refused to give effect to its own declaration of opinion as to the culpability of the Normandie. He put it that the expressions in the decree or the judgment of the Court in reference to the culpability of the Normandie were simply dicta having no authority and not
being necessary to the judgment of the case, and that the Court refused to give effect by ordering an assessment of damages. Counsel then dealt with the jurisdiction of the Shanghai Court. Could the Pekin have instituted an original suit against a Norwegian vessel in Shanghai ? Ab- solutely no. The Supreme Court of Shanghai had no territorial jurisdiction whatever over anyone but British subjects.
His Lordship-They could not have arrested the vessel ?
T
Mr. Francis-No, my Lord, and they cannot give execution against anyone but British sub. jects. The jurisdiction of the British Court at Shanghai is not territorial. We do not possess an inch of territory there, not even the grounds of the consulate we only rent them from the Chinese Government, and the jurisdiction is purely personal over British subjects alone.
Counsel, drew attention to the Foreign Jurisdiction Act, 1890, 53 and 54 Victoria, Cap. 87, and than quoted the Chishima Ravenna case. An application was made in that suit by the P. and O. Company to file a counterclaim alleging that the Chishima was to blame and that the P. and (). Company sought to claim damages against the Japanese Government instead of the Japanese Government against them.
cil cannot determine the matter until it comes before them in a proper shape. I call your of Japan refused to
The Judge in the Supreme Court allow the counter- the Court further declared that the defendants Lordship's attention to section 131 of the Or- claim on the ground that the counterclaim were liable for the damage and loss occasioned ders in Council which regulate the Supreme
bad no legal foundation, as the question to the plaintiffs by means of the collision and Court in Shanghai. The question of whether
must be decided by the laws of Japan, and by for the costs of the action. On the 7th July, the Pekin was right or wrong is the only ques- those laws the Emperor could not be made the Supreme Court of China and Japan, on the tion that can be decided on that appeal, and the responsible. That decision was appealed against application of the defendants, gave leave to the Court below having no jurisdiction, the Privy in the Supreme Court of Shanghai and fully defendants to appeal to H.M. Privy Council Council will necessarily refuse to decide the argued there and the judgment of the Judge against the judgment. Accordingly, on the 7th question of whether the Normandie was wrong.
in the Supreme Court of Japan was reversed. July, the defendants deposited in Court $2,500 His Lordship-The appeal of the Normandie The matter was then appealed to the Privy as security for the prosecution of the appeal and is against the judgment of the Court declaring Council and the Privy Council, without express- for payment of all costs that might be awarded her to be at fault. the plaintiffs by H.M. Privy Council or by Mr. Francis Our contention is that the de-ing any opinion on the point on which the
counterclaim had been originally refused, § the Lords of the Judicial Committee of H.M.claration of the Court that she was wholly in
decided that the Judge in the Court of Privy Council. He (Mr. Hastings) believed fault is no judgment at all. the Supreme Court of China and Japan had
Japan was right so far as his decision was deposited the record of the proceedings with
concerned, but they based their judgment on entirely different reasons. They based their the Registrar of the Privy Council and that the
indgment on the ground that the Supreme appeal would be prosecuted with as little delay
Court in Shanghai had no jurisdiction what as possible. Counsel also read a similar Mr. Francis-No, my Lord, there is no con- ever, no matter how the Orders in Council were affidavit by Mr. Platt, who appeared on behalf nection between the two. Although as a matter worded, except in so far as the Orders – in of the defendanta in the action in Shang- of convenience suits of this description are now Council were in accordance with the treaty, hai Counsel pointed out that his Lord- either consolidated or heard together by way of between Japan and Great Britain: that Her ship had power to grant a stay of proceed-claim and counterclaim, they are in fact and in Majesty had no jurisdiction. in Japan except until the decision in the appeal to law two separate and distinct suits and not one. that which was conceded to her by treaty with
Council be given, and it was highly His Lordship-I was not touching on the the Emperor of Japan, and that the order - i pedient that his Lordship should exercise that question of counterclaim. Suppose there was no Council was only for the purpose of regulating etion in the present case. Counsel quoted counterclaim and the Normandie brings an how those proceedings were to be carried o case of the P. and O. Peshawur (8, Probate action-
They pointed out in the course of the judgment Division) in which the Court, on the application
that the counterclaim must be treated Owners of the Peshawur, who were the
purpose of jurisdiction as a separate and definite ts, stayed proceedings in a suit
suit, and the question to be decided was, with against them by the Glenroy until
reference to the counterclaim, could P&O hearing of an action in personam in
have instituted a separate and ind Admiralty Court. That case W88%
against the Japanese Governm fours with the present case and he
Supreme Court? Had the Court rdship to await the decision of the
to try it if it had been an ori
original guit Court of Appeal and stay proceedings in the
Privy Council decided that the Court had no
Mr. Francis-The Normandie alleges that the Pekin was guilty of negligence and they claimed judgment for damages. The only point they had to prove was that the people on board the Pekin were guilty of negligence. If they proved that, they were entitled to a decree. They failed to prove that and their suit was dismissed. As taking your Lordship's supposition that that is the only question before the Court--