August 29, 1903.]
proposing the adoption of the report and passing the statement of accounts, I shall be glad to answer to the best of my ability any questions you may desire to ask.
There were no questions, and the CHAIRMAN moved the adoption of the report and accounts as presented.
}
Mr. Ho TUNG-Gentlemen,-We have met to-day for the purpose of adopting the report and passing the accounts, which indicate a very satisfactory if not too brilliant state of affairs in connection with the business of the Dook Com- pany. The observations which the Chairman has just made concerning our property and the business of the Company cannot but be regarded in the most pleasing light by the shareholders of the Dock Company, which, from its great financial soundness and the unas. sailable position it enjoys, holds second place to no establishment of its kind in the Ê st. (Applause.) In the policy which the Chairman and his colleagues on the board have initiated by the formation of a marine insurance account, I for one fully endorse the wisdom that dictates pendence; in adopting this policy we shall be shaping a course to strengthen and consolidate our position, and on this principle must our future prosperity be built. To be able to duck, approximately, ten per cent. of the entire shipping entering this port is indeed satis- factory. (Applause. Assuming that the tonnage of this port increases in the same ratio as it has done in the past, and that the business of the Dock Company correspondingly increases, the work we may have to handle should about double itself within the next teu years; hence it is that I fall in entirely with the proposal for the lengthening of the No. 1 dock at Kowloon, in connection with which scheme the announcement that attention has been given by the board to the general question of shipbuilding is particularly pleasing. That this industry can be made a remunera ive one under judicious management future reports should furnish ample testimony. At no time in the history of the Company has more increas- ing confidence on the part of the shareholders rested in the management than at present, and I think we may safely leave our affairs to be maintained at least in the present satisfactory state, and in all probability to be greatly improved as opportunity arises. With these few remarks I have much pleasure in seconding the motion for the adoption of the report and the passing of the accounts. (Applause.)
The motion was put to the meeting and carried unanimously.
This was all the business.
CHINA OVERLAND TRADE REPORT.
163
the
before the charter party was entered into a water back to Hongkong, and the charter was steamer, the Futami Maru, was wrecked on or grauted for a term limited to three months. near the island of Mindoro, in the Philippines, The value of the vessel was fixed at $15,000 and aud the defendant, who is an engineer the owner was to have the benefit of the $10,000 residing at Yaumati, having made certain neur ance money if the vessel met with an arrangements in that behalf, was desirous of accident and could not be taken back to salving as much as he could of the cargo of Hongkong to be restored to the owner, the that wrecked steamer. Accordingly he entered owner bearing the other $5,000 loss. It seems into negotiations with the plaintiffs, who, under the charterer effected the insurance and the name of So On, were cwners of a lorcha deducted the premium out of his payment under oilled the Shun Wo Cheung, for the hire of that this charter. The charterer was to have vessel for three months with a view to facilitate liberty to direct the vessel to sail or stop, his salving operation, and to bring to Hongkong and if he wanted the services of the orew so much of the wrecked cargo as he succeeded for loading and discharging cargo he was in salving. Th se negotiations resulted in an to arrange for their reward. The instru- agreement in Chin-se, dated the 4th February,ments for dredging the wrecked goods were 1901, being entered into between the owner of to be supplied by the charterer. The the lorcha (the plaintiff in the action) and the charter money of $1,550 a month, payable On Cheong Company, who may be taken to be in advance, was to commence from 1st February, in reality the defendant in the action. As the 1901; and accordingly the first $1,550 WBS plaintiff in the action is really the defendant in duly paid. Two pilots were also put on board, the counter claim. I will, to avoid confusion whose wages were to be paid by the hereafter call the respective parties the charterer, the captain not being familiar "owner" and the “charterer.” The translation with the locality to which the vessel was to of the charter party as cartified to by the Court go. The charterer placed on board the ap translator to be correct is as follows:-
paratus to be used for salvage operations, and the lorcha started for Mindoro on the 9th February, 1901. It unfortunately got wrecked through a "peril of the sea
on 12th February before reaching Mindoro. It is admitted by both sides that the wreck was not owing to the negligence of anyone; it was through a peril of the sea. The lorcha having practically ceased to exist, the charterer claims that the owner has broken the agreement and is liable to pay as damages for breach of the charter party the value of the salvage apparatu: on board, which was lost, the cost of new apparatus, and $5,000 damages for the delay rendered necessary in commencing the salvage operations, whereby it is alleged a quantity of the cargo was los to the salvor (the charterer). The charterer, moreover, contends that the $1,550 paid in advance for first mouth hire must be refunded by the owner. It is well in the first place to con.. sider what are the well-known principles of law where the performance of a contract becomes impossible owing to the perishing of the thing which is the subject matter of the contract. These principles were fully discussed and clearly established in 1863 in the well-known case of Taylor v. Caldwell, 3 Best and Smith's Reports, page 826. There, A agreed with B to give him the use of the Sarrey Music Hall on certain specified days for the purpose of giving four concerts and fêtes, at a rent of £100 for each of these days. The agreement had no express stipulation for the event of the destruction of the Hall by fire. This event, unfortunately, occurred, and the Hall was burat down before the first concert day. Therefore, B, who had been put to considerable expenas in advertising and preparing for the concerts, sued A, al eging that as À had agreed to let the Hall without expressly excepting fire, he was liable to pay damages for breach of contract. Black- burn, J. (afterwards Lord Blackburn), kowever, held that the plaintiff could not recover. In a learned judgment, after reviswing the Roman law as to obligations de certo corpore, and stat ing the principle to be that the debtor corporis certi is freed from his obligation when the thing has parished, neither by his act nor his neglect and before he is in default, unless by some stipula- tion he has taken on himself the risk of the par- ticular misfortune which has occurred, he goes on to point out that common law authorities esta- blish that, in such a contract, the same condition of the "continued existence of the thing is implied by English law." After discussing such contracts as promises to marry, to paint a picture, apprenticeship deeds and other cases where the implied condition is of the life of a human being, he goes on to discuss, others in which the same implication is made as to the continued existence of a thing. Then, at page 839, he sums up by saying, "The principle seems to be that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is im- plied that the impossibility of performance arising from the parishing of the person or thing shall excuse the performance." He con. tinnes as follows (referring to the cases he has discussed): "In none of these cases is the promise in words other than positive, nor is there any express stipulation
The maker of this writing for granting the charter of a vessel is Captain So Yeung, who, on behalf of the vessel-owner, So On, grants to the On Cheong Company the charter of the Shua Wo Cheung strongly-built lorcha, with brass-covered bottom, built by him (So On), holding a capa ity of about 7,000 piculs, includ ing all the tackle on board, together with the foreign rifles, cannon, gunpowder, shells and shots all complete, and carrying a crew of sixteen bands, So Yeung, the captain, and employees and sailors included, valued at the price of fifteen thousand dollars as agreed. It is distinctly decided that (the vessel) shall go from Hongkong to Mindoro Island in Manila and convey goods damaged by water back to Hongkong, and the term shall be limited to "three months. The charter-money shall commence from 1st February, 1901, and shall be one thousand five hundrel and fifty dollars per month payable in advance in bank- notes. After the term of three months, if a few days have elapsed, they shall be counted as ten days and rent for same shall be calculated accordingly; if over ten days have elapsed they shall be counted as twenty days; if over twenty days have elapsed they shall be counted as one month; if one full month has elapsed it shall be counted as one month and ten days; and if further time has elapsed it shall be counted in the same way accordingly. After the vessel has been chartered, the manager of the On Choong Company shall have the liberty to direct the vessel to sail or to stop. Should the On Cheong Company require the assistance of the employees and sailors on board the ves el in the loading and discharging of cargoes additional wages must be arranged for com- pensating or rewarding them. The instruments for raising goods, pulleys, blocks, cards, ropes and divers, etc, used for dredging the goods, shall be supplied by the On Cheong Company. In case of the vessel being detained by the authorities on account of the infringement of the Chinese or Western laws, or in case of such like evils, the On Cheong Cmpany s'all at- His Lordship delivered the following jalg. tend to it and settle it properly. If the em- ment: In this action brought by the plaintiffs ployees and sailors violate any law the (owner to obtaju paymeat from the defendants of a sim of the) vessel shall attend to it and so fle it of $1,339 21, principal and interest dus unter a properly. If the vessel meet with an accident promissory note, judgment was given in favour and cannot be taken back to Hongkong to be of the plaintiffs last November, but execution restored to the vessel-owne (the On Cheong Com- was stayed pending the hearing of a counterpany shall voluntarily let the vessel-owner So On claim set up by the defendant claiming some take the ten thousand dollars for which it is in- $13,203.19 damages against the plaintiffs, insured by the Insurance Company in satisfaction respect of an alleged breach of a charter party. The question whether the plaintiffs in the action were liable, whether they had in law committed a breach of D charter party between them and the defendants, was argued before mo some days ago by Mr. Slade for the charterer and by Mr. Morgan Phillips for the owner. It was arranged that if I held the plaintiffs (the shipowners) liable for breach of contract, the question of the quantum of damages could be decided later on. This judgment, therefore, deals with the question : Certain facts being admitted, do such facts show a breach of charter party by the shipowner rendering him liable to pay damages to the charterer ?" The facts out of which the counter claim arose are as follows. Some.time
v.i
SUPREME COURT.
Saturday, 22nd August.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIE WILLIAM M. GOODMAN (CHIEF JUSTICE).
A PERIL OF THE SEA.
In the matter of Un Wang Fang Ling Sze Tang Kow, action No. 174 of 1902,
$
of the valus of the vessel, as the remaining five thousand dollars shall be borne by the vessel. owner himself; this together with other sum amounts to fifteen thousand dollars. This is voluntarily agreed to by both parties and no disputes under any pretext shall be allowed. Lest words of mouth should bear no evidence, this writing for granting the charter is forthwith mide and handed over to the On Cheong Company to be held and kept as a proof.
Witness-Kwok Cheong,
The Shun Wo Tsung, So Yeung, on behalf of the vessel, So On, his true handwriting.
4th February, 1901,
The vessel was to go from Hongkong to Mindoro Island and convey goods damaged by