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November 28, 1904.)
latter came into Sulphur Channel, and did not, to the knowledge of those on board, again sight the Wongkoi till she came into collision with her. But surely before they came into collision they observed the lights of the Wonakoi, but which did not occur to them to
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be the Wongkoi. So they saw the ship but did not give any name to her; perhaps, also, there were a great many ships about. When inside Sulphur Channel the Captain passed a junk, and had to alter his course slightly and he varied bis course very slightly again. I do not think any of these incidents help me in drawing a conclusion, but merely mention them as being before that which occur. red when the Captain was making for an anchorage near Stonecutter's Island. now to the point. He saw a steamer which might or might not have been a river steamer crossing ahead of him, showing a red light. This is the cap'ain's evidence and the other evidence of witnesses. There is, however, no evidence of the fact that at the time when the Ujina was on her way from Sulphur Channel to her destination at Stone- cutter Island that she had come within a short distance with either one or more steamers. showing a port or red light. On the way to his berth the captain sees a light ahead, which he presumes to be that of a steamer cross- ing. The Ujina suddenly uses her helm in anch a way which brings her into colli.
■ion with the Wongkoi; she suddenly for some reason altered her course It then falls on the Ujina to give a satisfactory explanation to excuse her from running into the Wongkoi ou that occasion. The onus of proving that the Ujina is not in fault and that the Wongkoi is in fault is thrown on the Ujina. The captain has given the explanation that a red light suddenly appeared, leading him to suppose that it was on
a ship crossing his bow. Mr. Blade says that this evidence ought to absolve him, notwithstanding the denial of the Wongkoi as to the matter of the display of the red light--the light which led the Ujina into the error to believe that the Wongkoi was showing her port light. The witnesses of the respective ships swear oppositely. The
difference between these two classes of witnesses is that the one set of witnesses was able, from surrounding circumstances, to swear absolutely
to fact; the others could do no more than swear that they believe such and such to be a fact, and that it is reasonable to believe so. The captain of the Wongkoi was absolutely certain that there was no light, because "Isaw the light blown out " The Ujina can only say there must have been a light. Assuming that the witnesses are 'o be honest in both cases, I really cannot find fault against the Wongkoi, unless I say they have deliberately and knowingly stated that which is false. The light which the Ujina was supposed to have seen could only have been the port light which is kept on the port side of the bridge. The captain of the Wongkoi has told us that it is the rule of his ship that when lights are taken in they are blown out, and he swears, without reservation, that he saw the man on duty take in the nort light and blow it out There is no mistaking this officer; he said as a fact he did see it. There is no reason why he should see it Mr Slade had said the man was practically an automaton, yet it did not occur to him, if that is so, why this automaton broke down that night. Why if it was the established and common rule to so take in the port light would it not be noticed by the captain; why am I to suppose the captain did not do so. It that what is supposed to have been done is this: The automaton departed altogether from the course he is supposed to do, and that he walked away with the light past the captain and first officer and put it down somewhere on the bridge; as that was not the custom it would have drawn the attention of the captain. It seems to me that a correct inference would be that the captain seeing the light taken in would have paid attention to see that very essential operation performed. In my opinion it comes to this, the captain and officers of the Ujina are either mistaken in seeing a light on the Wongkoi, or they did not see it at all, and have made this as an excuse. I am not obliged to say why they ran into the Wongkoi The Ujina must establish as a fact that the Wongkoi did show a red light. I am willing to accept it, for the sake of their honour,
seems now
CHINA OVERLAND TRADE REPORT. that they did see a light, but I do not believe AB а fact that there was any red light on the Wongkoi. Coming to this conclusion I have had the assistance and con- currence of Capt. Barnes-Lawrence. In short I find this conclusion:-The Ujina came în contact with the Wongkoi without any fault of those on board of the Wongkoi, They were mistaken in the light they saw.
1 he parti s will proceed in the usual way as to the assess ment of damages. The Ujina is solely to blame;
with costs.
Friday, 25th November, 1904.
ORIGINAL JURISDICTION.
BEFORE SIR H. S. BERKELEY (CHIEF JUSTICE).
OSAKA SHOSEN KAISHA V. OWNERS OF 8.8.
PROMETHEUS'
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the
This was an action brought by the Osaka Shosen Kaisha against the Owners of Norwegian 88. Prometheus in respect of alleged damage and loss sustained by them on account of the Captain's refusal to load provisions to be carried between Japan and Formosa, declaring them contraband of war.
Hou. E. H. Sharp, K.C., instructed by Mr. John Fastings, appeared on behalf of the
Osaka Shosen Kaisha; Mr. M. W. Flade. instructed by Mr. C. D. Wilkinson, on behalf
of the Owners of the 8.8. Prometheus.
Hs Lordship delivered judgment as follows: This is a special case stated for the opinion of this Court by the arbitrator acting under a submission to arbitration contained in a certain cha ter party made at Hongkong on the 10th of February 1904, between Messrs. Sander, Wieler & Co. "agents for the steamship Prom theus,under Norwegian colours," on the one part, and "The Osaka Shosen Kaisha. Osaka, by their Hongkong Office, Charterers" on the other part, by which that ship was chartered to the Osaka Shosen Kaisha for six months subject to, inter alia, a special stipulation that she was not to carry any contraband
of war.
The charter party is signed “Sander, Wieler and Co., as agents for the captain and owners of the Norwegian 8.s. Prometheus";
"Osaka Shosen Kaisha, T. Arima, Manager.'
M
"
998
Formosa commenced. On the 19th of March the master of the Prometheus received at Kobe a telegram from his owners directing him tỏ decline rice and provisions between Japanese ports" and further directing him to "try cancel the charter party. The direction to decline to load rice and provisions was com. municated by the Master to the Osaka Shosan Kaisha. A correspondence ensued between the Charterers, and the Master, in which the Char- terere denied and the Master asserted that rics sugar and provisions generally were contraband”– of war. ending by the Master declining to load rice, sugar and provisions" for carriago between Japanese ports unless an increased amount was paid for the hire of the ship, alleg ing as the ground for this refusal that provisions were contraband of war, which, by an express term of the charter party, was not to be loaded on his ship.
In consequence of this refusal of the Master to load rice, sugar and provisions, for the reason stated, the cargo of the Prometheus which was -- then in course of being loaded was completely discharged at Kobe and the ship left in " ballast for Nagasaki. Subsequently she was employed elsewhere than on the line between Kobe and Formosa for which she had been specially chartered. In consequence of the refusal of the master to load this cargo the whole purpose of the charter party was frustrated. The intended voyage for which the Promethes was loading at the time was on the regular line between Kobe and Formosa, and the ports to which it was proposed to sand- the Prometheus were not porte of military or naral equipment, but ordinary commercial ports. The rates of chartering had increased enormous- ly between the 10th of February, the date of the charter of the Prometheus, and the 26th of
March, the date of the discharging of the cargo which that ship was then in the course of loading at Kube. This fact is of importance in con. sidering what he parties had in their mind when, as will appear hereafter, they used the word
contraband in clause 37 of the charter party; for it is suggested by the charterers that the objection of the owners to carry provisions was n t made bona fide, but was made with the object
at
stage to this exception because an argument, based upon its presence in the charter party, was addressed to me by Mr. Slade in justifica. tion of the act of the master in unloading the ship at Kobe, with which I will deal later. The second clause of the charter party limits the duration of the charter to six calendar months, and concludes with the following typewritten words: "this agreement not to be cancelled in the event of war being declared.” I may say at once that the insertion of this provision makes it in my opinion manifest that when this charter
of obtaining if posible a fresh charter at the higher rates then ruling. The first clause of the charter party provides that the ship Prome theus shall be placed at the sole disposal The facts out of which arise the questions of the charterers or their agents to carry submitted by the special case for the opinion cargo and passengers for lawful voyages of this court are, so far as material, as follows:-- to all parts of the world, open ports The charter party was signed at Hongkong on only,
the same time expressly the 10th of February 1901, subsequent to the declaring that ports in America, Europe, Aus- outbreak of hostilities between Russia and tralia, and Africa, and in the Amur district are Japan. The fact that Russia and Japan were excluded from the operation of the charter and at war was unknown to the parties at the time also "interport trading in the Pbilippines." they signed the charter party, but the charter The first clause also contains the exception with party was made in anticipation of war, and respect to "arrest and restraint of Princes, the fact that war had broken out became known Rulers, and Pe ple" which is commonly insert. to the parties immediately after the chartered in a charter party. I make reference at this party had been signed. The owners of the Prometheus are Norwegians, subjects of a Pow、 r neutral in the war between Russia and Japan. The charterers, the Osaka Shosen Kaisha, a Japanese Steamship Co., are subjects of Japan one of the belligerent powers. The Osaka Shosen Kaisha is a well-known company engaged prior to the outbreak of war in running a regular line of steamers carrying cargo and passengers from Japan to Formosa and back, calling at Japanese interports each way, and carrying ordinarily and regularly as part of such cargo sugar, rice, and foodstuffs gen-party erally. That fact was known to Messrs Sander, Wieler & Co. at the time of the negotiations for the charter of the Prometheus, and the Prome- theus was chartered for the express purpose of being employed in that line, so running between Japan and Formoss, to replace certain, steamers regularly theretofore so employed which had been taken up by the Japanese Government. The charter commenced on the 22nd of Febru ary and the Prometheus left Hongkong on the following day under her charter, for Takao, a port in Formosa. She there loaded a cargo of sugar and rice and proceeded to Anping, another port in Formosa, where she agam loaded sugar and rice for Yokohama and Kobe-ports in Japan. The Prometheus arrived at Yoko hams on the 9th March and at Kobe on the 17th of that month. The cargo loaded in Formoss was duly discharged and the loading of the ship for her return voyage from Kobe to
Was entered into, both parties expected that there would be war between Rumin and Japan before the expiration of the charter by effluxion of time. There is nothing in any other clause bearing upon the case until the 15th by which the amount to be paid for "the use and bire" of the steamer is fixed at the rate of $6,750 per month payable half monthly in advance. With respect to this it will be sufflei- ent to remark in passing that this sum is stated to be a moderate charge for the use and hire of this steamer, and that the arbitrator has found as a fact that the rates of chartering had enormously increased between the 10th of February, when the charter party containing the clause was signed, and the 26th of March when the master refused to load the cargo Of the remaining tendered by the charterer. clauses of the charter party the 37th only sorma to bear upon the matters in dispute between the charterers and the owners of the Prometheus.