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May 5, 1902.
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CHINA OVERLAND TRADE REPORT.
CHINA OV
it is "auʼorder" of the kind to be held appeal. able. As regards the security to be given by the appellants for the prosecution of the appeal, and for the payment of costs, the sum should be £300 sterling, and the security should be by way of bond with one or more sufficient sureties, or by way of mortgage upon some sufficient immoreable property, situato in Hongkong, to the sitisfaction of the Registrar. If such se- curity be given and completed within three months from the date of the potition for leave to appeal, ie, within three months from 1st April, 1902, the Court will, the other conditions precedent having been already complied with, be prepared to make an order allowing the appeal to be prosecated The Court has been informed by the Attorney-General that he has no desire to oppose this application.
The Acting Puisne Judge-I agree. I think that if we were to act upon the case of Lane v. Esdaile and the other cases referred to and re- fus d leave to appeal we should be adding to the Rules and Limitations subject to which appeals We must leave it to the should be allowed. Privy Council to decide whether an appeal to their Lordships from the decision of the Full Court here is competent.
Monday, 28th April..
IN ADMIRALTY JURISDICTION.
K.C. (CHIEF JUSTICE),
YAU NG HỢP P. “PHRA CHOM KLAO This was an action for damages by collision brought by the owner of the fishing junk Ng Hop against the ship Phra Chom Klo Mr. M. W. Slade, barrister-at-law (instructed by Mr. C. D. Wilkinson of Messrs Wilkinson & Grist, solicitors), appeared for the plaintiffs; and Mr. E. H. Sharp, barrister-it-law (in- structed by 'Mr. G. C C. Master of Messrs. Johnson, Stokes & Master, solicitors), for the defendants.
The nautical assessor was Lient. F. W. H. James, R.N., H.M.S. Tamar, King's Harbour Master.
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appeal (the words of the Code, are · special | leave) the judgement of Sir John Car- rington, of 1st December, 1900. The notice of motion was filed 27th February, 1903. It may here be observed that the present Code of Civil | Procedure in Hongkong is Ordinance No. 5 of❘ 1901, the former Code of 1873 having been repealed by Ordinance No. 6 of 1901. The Code of 1901 was passed on 12th March, 1901, and came into operation on 1st July, 1901 (see Section 711). Ry Baotion 710 it was provided that it was to apply so far as might be practicable to all proceedings taken after it came into operation in all causes and matters then pending. It may be added that Section 478 (relating to the mode of preferring claims against the Government of the Colony is similar to Section 83 of the former Code of 1873 the previously referred to. The question Court has now to decide is whether the plaintiffs should have leave to appeal to the King in Privy Council from the refusal of the Falk Court to grant special leave to appeal. No doubt, the courts have held that, where special leave to appeal has been refused, the Court of Appeal has no jurisdiction to hear an appeal from such refusal. It was so decided by the Court of Appeal in Kay v. Briggs, in 343. 1889, Vol. 22, Queen's Bench Division, p. Sim lar decisions are Lane and Another v. Esdaile and Another, 1891, Appeal Cases, p, 210, when the Honse of Lords declined to entertain such an appeal, and in the matter of the BEFORE HIS HONOUR W. MEIGH GOODMAN, Housing of the Working Classes Act, 1890, ez pa te Stevenson and others, where the Court of Appeal uphold a decision of the Divisional Court to the like effect. In the ordinary course of things, therefore, a Court of Appeal will not entertain an application to appeal from a decision refusing special leave to appeal. The reasons for this are fully set out in the opinions of Lord Halsbury, the present Lord Chancellor, and of the late Lord Herschell, in Lane v. Esdaile in the House. of Lords. It must be borne in mind that Section 606 of the Code of Civil Procedure, 1901, is taken (as appears by the marginal note) from Order 58, rule 15, of the English Orders and Rules, alhough, the period of 6 months is fixed in all cases as the limit of the ordinary right to appeal to
The plaintiffs in their preliminary answers the Full Court from any decision of the Court, stated that the collision occurred about 8 p.m. instead of the times mentioned in th English on the 4th December in the open sea Order and Rule. Lord Herschell, in the opinion the southward of the Good Hope Cape. I have mentioned, says :-"It cannot be donbt- The breeze was easterly and fresh, and it ed that the object of the 15th rule of the 58th was a clear, bright, moonlight night with con- It was nearly low water and the Order was to make the judgements, after the siderable sea. lapse of a year, practically final. (Since this current was slight. The course being steered opinion was delivered the period has been re- by the junk when the other ship was first sighted duced to 3 months.) "It is clear that some was due N., and the speed about two miles an time must be fixed at which the right of appeal hour. She saw the steamer's white light almost should cease, otherwise parties would never straight ahead of her, slightly on her star- know what their rights were and there would board side. Some Hittle time afterwards she be no possibility of people being safe in dealing saw. the red light of the steamer. There with the fruits of a judgement, because the an oil lamp exhibited on the mast of The distance and bearing of the judgment might be still subject to appeal. But the junk. then it was thought that there might be special other ship when first seen were four or five miles circumstances in which the Court of Appeal off and about N. On the steamer being seen might relax that rule and consider that, not- to be heading straight for the junk, a flare was withstanding it, au appeal should be permitted. | shown, the look-ont man blew a horn, and all I think that the matter was entrusted, and in-hands ou deck shouted. The Ng Hop held her tended to be entrusted, to their discretion; and course until the steamer was right on her, when that the exercise of a discretion of that sort her helm was put down, but she had only began to turn when the collision occurred. The bów entrusted to them is not, within the true mean- ing of the Appellate Jurisdiction Act, an order of the Phra Chom Kl o struck the junk on the or judgment from which there can be an appeal." port side near the stem. The fanit attributed If, therefore, the present application had been to the other ship by the junk was that she did an appeal to the House of Lords from the re- not keep out of the way of the Ng Hop and did fusal of the English Court of Appeal to grant not keep a proper look-out, that the steamer special leave to appeal, it would appear that the was recklessly navigated at an excessive speed. House would not entertain such an appeal. and not promptly stopped when there was risk This, however, is an application for leave to of collision. The defendants stated in their appeal to the King in Privy Council from the answers that the collision took place in Lat. refusal of the Fall Court of Hongkong to grant 23.05 N. and Long. 116.47 E. The steamer was. special leave to appeal to the Fall Court from showing the regulation lights and was steering a judgement delivered more than 15 months SSW. by compass at a speed of about 10 knots. previously. Appeals to the King in Privy The junk was first seen a a distance of about Council from the Supreme Court of Hongkong 1 miles; no lights were seen on her at any may be brought, if certain conditions preced- time. As soon as the course of the junk ent are complied with, against "Any final could be made out, the helm of the Phra judgement, decree or sentence, or against any Chom Klao was starboarded, bringing the rule or order made in any such civil suit or junk about half-a-point on the steamship's action, and having the effect of a final or de- starboard bow. When the steamer was within finite sentence," subject to the rules and limita- less than quarter of a mile, the junk suddenly tions set, out in the Regulations and In- altered her course, attempting to cross the to the Governor. I presume the steamship's bows from starboard to port. As refusal to grant leave must be taken to be “an 800 as those on the steamer observed the junk nd personally, I should rather leave altering her course, the engines were put full it to the Privy Council to determine whether speed astern, and the helm starboarded. The
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stem of the steamship struck the jank on the port quarter. The fault attributed to the junk was that she did not keep on her course but im- properly altered her course across tho steamer's bows to port; if the junk had kept her course no collision would have occurred. ♪
Mr. M.W. Slade in opening the case stated that on the day preceding the collision the Ng Hop bad bean fishing in consort with another juok belonging to the same owner, and some time in the late afternoon or evening had transferred the whole of her catch of fish to her consort, which had set sail at her best speed for the port where the junks discharged their fish and from which it was taken by launch to Swatow. The Ng Hop w.s proceeding under easy sail to the same place, by name Tatanpo. The people on the junk first saw the white light "of the steamer slightly on her starboard bow and shortly afterwards they saw the red light also. To Ng Hop was kept on her course until about 300 yards distant from the steamer, when they saw her green light. As soon as they saw both lights the captain gave orders for a flare to be shown and a horn to be sounded. This was dope. The steamer came right down on to them without altering her course and at the last moment in an endeavour to avoid the steamer, the junk luffed up sharply, but was in the act of turning when the steamer came upon her and struck her on the port side near her stem. Lines were thrown to the people on board the junk and all five were saved. The junk sank and the steamer proceeded on her way, carrying the crew to Bangkok and afterwards bringing them back to Hongkong, where they were put on board the Haitan and sout to Swatow, their passage Swatow they being paid. On reaching reported to their owner, who sent them down to Hongkong with the object of commencing One thing was clearly apparent, this case. and that was that as the steamship people were able to make ont this junk at a distancs ef- 13 miles, which was about as far as one of these small oil lamps nsually carried by junks can be seen, the question of lights was of compara. The steamer was tively small importance. steering
her courte which brought into very close proximity to this junk, when she might have taken a course that would have rende ed a collision impossible.
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Evidence was afterwards given, and the case was adjourned.
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Tuesday, 29th April.
IN ADMIRALTY JURISDICTION.
BEFORE HIS HONOUR W. Meigh Goor-
Man, (Chief JUSTICE).
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YAU NG HOP v. PHRA CHOM KL10,
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Mr E. H. Sharp, iu opening the case for the fence, said that there was little in common between the two accounts as to how the collision occurred. The defendants' account was that the Phra left Swatow for Bangkok at 4.30 p.m. on the day in ques ion, and at 5.55 p.m, roun led the Good Hope Cape, from where she took a She kept that course for about 8.S.W. course.
9 miles, travelling at the rate of 10 knots. About:6.35 two junks were sighted by the Phra. They were at that time, so far as the chief officer, who was in command, could judge. 11 miles off, and 2 or 3 points on his port bow. They were carrying, o: at any rate showing, no light up to the moment of collision. The other junk, the one with which they did not collide, was about 150 yards ahead of its consort. As soon as the chief officer saw these two junks he used his glasses and for some little time could not distinguish their conrse bat presently he made out that they were ne nearly as he could see on a couras at right angles to his own, N.W. by W. That was what it turned out to be. As soon as he made ont their course he starboarded his helm just little and came round on a steady swing to port until he got the hind most of the two junks-the one with which they collided ultimately—just on his starboard bow, with the view of passing astern of both junks, recognising his obligation to keep out of their way and not to oross their bows. Fr..m the time that the Phra got the junks clear on her starboard bow she went straight ahead and of course at that time steamer and the junks were starboar
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