December 9 1896
the Supreme Court. The section says: ing case, the Court shall be of opinion that a suit commenced in its summary jurisdiction ought to be heard in its original jurisdiction, the Court may order that the entry of such suit in the register of summary suits be cancelled therein and transferred therefrom to the principal register, notwithstanding that such suit may be within the provisions of this Ordinance. Section 38 provides that it shall | not be necessary to issue a new writ, but simply to make the transfer. There is no doubt that the sult is maintainable in the Original Jurisdiction, and therefore I ask your Lordship to exercise the jurisdiction you undoubtedly possess.
Mr. Hastings-I submit, my Lord, that this section does not apply. The section says in case the Court shall be of opinion that the suit commenced in its summary jurisdiction ought to be heard in its original jurisdiction." According to the judgment which your Lordship has given in this suit you have no jurisdiction to entertain the suit at all. The proceedings are bad from the commencement and your Lordship has no power to make any order in this suit at all. You are without jurisdiction. The section quoted by my learned friend apparently applies to a case which may be heard in the summary jurisdic tion or in the original jurisdiction, but which from its importance or for other reasons the judge considers ought to be heard in the original jurisdiction. It cannot, I submit, refer to a case instituted improperly in the summary jurisdiction and which the judge sitting in the summary jurisdiction has no jurisdiction to deal with at all. 1submit your Lordship has no. power to make any order, especially as you have already given judgment non-suiting the plain tiff in the case. If the plaintiff has any claim proper way in the must bring it in the original jurisdiction. In any case, I ask your Lordship to order that the application be made in the proper way by giving notice, so that we can have an opportunity of considering the matter.
at all in this suit
His Lordship-Looking at this matter on the brief notice: I have had it appears to me that section 36 means in case the Court shall be of opinion that a suit properly commenced, &c. I put in the word "properly," and at present, Mr. Francis, I am against you on the point. If you wish to make an application in Chambers and argue the point I shall be glad to hear you, but as at present advised I do not think I have power.
Mr. Francis-I will not trouble your Lord- ship further.
5th December.
IN ADMIRALTY JURISDICTION.
BEFORE ME. T. SERCOMBE SMITH (ACTING -PUISNE JUDGE) WITH HON. COMMANDER W. C. H. HASTINGS, R.N. (ASSESSOR.)
FRUEN V. HELLBURG..
HFruen, a pilot, of Swatow brought an action to recover, $1,000 from Captain J. F. Hellburg, of the steamship Fictoria, for damages caused by a collision between the Victoria and the plaintiff's pilot boat.
Mr. J. J. Francis, Q.C. (instructed by Mr. Wilkinson), appeared for the plaintiff and Mr. E. Robinson (instructed by Mr. J. Hastings), appeared for the defendant.
Mr. Francis said this was an action in which the plaintiff, Captain Fruen, claimed the sum of $1,000 against the defendant for damage
came up.
CHINA OVERLAND TRADE REPORT. on the 18th April last. On that morning Cap- tain Fruen went afloat on the look-out for the Victoria in an open boat fitted with sail and having four of a Chinese crew on board, the boat being propelled both by oars and sail. Some short distance out of the port of Swatow, when between the Bill and Squat Rocks, which are on the west side of the entrance to the port, the Victoria was seen coming from the northward. As soon as the Victoria was about a couple of miles off, Captain Fruen lowered the sail of his boat, and laid to, to wait for the steamer coming up. The Fictoria approached him apparently at full speed, making no effort to slacken her speed, and when coming towards him seemed to time a little on her starboard bow as she be with a slightly ported helm, he being at that
were backing the boat just to keep her His crew were at the oars and
steady in her place. An ebb tide was run. ning at the time about one and a-half or two knots an hour. It was a beautiful, fine clear morning, smooth sea, little or no wind. When the Victoria came within about a ship's length of the boat her helm seemed to be put hard over to port, and she ran into the pilot boat nearly amidships on the port side, cutting her in two, and throwing the whole of the people into the water. Prompt measures were taken by the people on board the Victoria to rescue the crew, and they were got out of the water and attended to on board the steamer. The beat was wrecked. There were no pleadings in the case, but preliminary acts had been filed. The defendant's preliminary act gave the time of the collision as 8.20 a.m., off Bill Island. There was a light N.N.W. breeze. was a difference between the parties as to the direction of the wind, but both agreed that it was quite light. The defendant stated that shortly after the boat was seen, the helm
done to his boat in consequence of a collision in which the steamer Victoria, then going into the port of Swatow, ran down and sank his pilot boat. The collision occurred on the 18th April last; about nine o'clock in the morning. Captain Fruen was a pilot doing busines in Swatow. The Victoria, the defendant's steamer, was one of the vessels trading on the coast, and she had been in Swatow on a previous voyage in the onth of March, and the defendant, the of the Victoria, had arranged that he plaintiff on his feturn voyage to the port should be, on the look-out for him and should expect him to be in or about the port
There
of the Victoria was starboarded in order to pass under the stern of the boat until they brought her about one and a-half to two points on the starboard bow of the Victoria. When the Victoria bore away the pilot ran across the bows of the Victoria and got on her port side. The Victoria at once blew a blast on her whistle, and the engines were stopped, and she put astern, and the helm was put hard to starboard. Plaintiff was in fault for not showing his pilot's flag, showing a pilot was on board, and for having altered his course and not kept a good look-out: As a matter of fact, said counsel, there was no pilot flag at the mast when the collision occurred, but it had been flying on the mast, and it come down when the mast was taken down. It might be that his Lordship would have to deal with the boat as if she was an ordinary rowing boat. The question, however, was, Was the steamer justified under the circumstances in running the boat down ?
The plaintiff was then called. He said that before the collision the Victoria did not slacken Her speed. When he went on board the defen. dant remarked that it was a bad loss and asked witness what the amount of the loss was. Wit ness piloted the Victoria into harbour and the defendant said he did not see the boat, but he afterwards said he took the boat for a fishing
boat.
In cross-examination witness said the local regulations at Swator required a pilot boat to carry a pilot flag but not carry a number or any marks on the mainsail. If the defendant made an arrangement with the other pilot, O'Sullivan, to pilot the Victoria into Swatow barbour, the arrangement was unknown to witness. After lowering the sail, witness had no time to put up the pilot flug again. He did not tell the Swedish Consul that he would
not claim damages,
***
The case was adjourned until Monday when judgment was given for the plaintiff with costs.
The Norwegian steamer Hermann Vede Jarls burg, Capt. Reimers, unexpectedly put into Yokohama on 22nd November, having been six weeks out from San Francisco. The captain reported that the crank shaft had got out of order. After coaling and making the neces sary repairs he will proceed to Calcutta, his original destination. He is carrying a cargo of wheat.
THE GAP ROCK LIGHT
send
ber
tion, for the information
The Hon T H Whitehe
Commerce and those interested, the following correspondence :-
THE GOVERNOR TO THE SENIOR UNOFFICIAL MEMBER OF COUNCIL,
Government House,
sideration of yourself and your colleagues, the un- Hongkong, 12th November, 1896. Sir,-I have the honour to forward for the con official members of the Legislative Council, the enclosed copy of a letter from the Chamber of the Gap Book Lighthouse rate, which was first impose Commerce suggesting that
he stated could not be binding on his 1890, should be now abolished in accordance with my predecessor's promise, which,
The rate if continued is estimated to during the coming year about $65,000, and if of revenue for 1897 the latter will be exceeded this amount is withdrawn from the estimate by the estimated expenditure. It is therefore necessary either that the rate should continue to be levied, or that the loss which would be entailed by its abolition should be made good from some other source of revenue,
I shall therefore be greatly obliged if you will be so good as to confer with your colleagues on the matter, aud acquaint me with your and their views as to whether it is preferable to continue to levy light dues generally as at pre- sent (including the Gap Rock rate), or to devise some alternative source of revenue in order to make good the deficiency which the abolition. of light dues would entail,
In the event of your recommending that light dues should be abolished, I shall be glad to be favoured with your valuable advice as to the method by which you consider the deficit caused by such abolition may be met. I have the honour to be, air, your most obedient servant,
(Signed) WILLIAM ROBINSON. The Honourable the Senior Unofficial Member of the Legislative Council, &o., &c., &o,
-
(Enclosure.)
THE CHAMBER OF COMMERCE TO THE COLONIAL SECRETARY. Hongkong General Chamber of Commerce,
31st July, 1896. Sir,-This Chamber, naturally regardful of any question bearing on the prosperity of the port, is anxious to see that no impost levied for à special object should be suffered thereafter to become a permanent charge on the shipping frequenting it.
When in reply to a question put by the Hon. T. H. Whitehead in the Legislative Council on the 8th inst. the fact was elicited that the total sum received as the proceeds of the special Gap Rock Lighthouse rate from 1889 (date of lev) to the 30th June last was $358,521, while the amount expended during the same period for construction of lighthouse, laying of cable, and maintenance was $315,935, showing a balance of $42,586 in hand, my Committee felt that the time had arrived to ask the Government to re- deem the pledge made by Sir William Des Voeux to abolish the extra tax of one and a half cents per ton on shipping.
It may perhaps be useful to quote, for the information of his Excellency the Governor, the of Council on the 11th December 1889, when words used by his predecessor at the meeting the Ordinance authorising this special addition to the light dues was passed. The following question asked by Mr. MacEwen, the then William Des Voeux are taken from the short- nominee of this Chamber, and the reply of Sir. hand report
"Mr. MacEwen-The discussion generally takes place on the second reading of Bill, but in a matter of this kind it would be satisfact to know the length of time it is intended to lev this increase, because, if I recollect correctly, was understood that the tax would only in order to pay for the actual cost of the ht house and then be withdrawn. Is that the understanding ?
will not raise $30,000, and I think
His Excellency Most distinctly. The cent very lucky if we get off for $120,000. It will be called the Gap Rock Lighthouse rate, and