362
would have been a special resolution which the court cannot accept.
Sir Henry-Certainly; but Ho Tung did not prevent it being confirmed.
His Lordship-So far as this point is con- cerned, and on fbe as umption that the oreditors are bois fide, I think there has been A mistake from which I cannot relieve Ho Tung. Now comes the proper time to take your motion which is to call on the others to prové,
Sir Henry I am instructed that the debtor was made bankrupt with the assent of the petitioning creditor and not by Ho Tung.
Mr. Slade That statement is hardly correct. It appears that Ho Tung appeared and supported the application. Up till the time of the adjudication the trustee has nothing to do with the matter. It was then the
official receiver.
the
is the the
THE HONGKONG WEEKLY PRESS AND
|
Mr. Slade-My learned friend tries to per- suade your Lordship that this is a purely technical and frivolous objection.
It is po thing of the kind, but a very serious and important question which has to be decided with. in the interpretation of the Ordinance. Section 3 of the Ordinance is the section which deals with proved debts, and that section is taken in the main from the second schedule to the Bank. ruptcy Act of 1883 with considerable omissions.
After quoting authorities in support of his case, Mr. lade continued: The official receiver has exercised his right and that excludes the trustee. If, as
the learned counsel for the receiver has asserted more than once, he is in a
position to bring forth evidence to show that these claims are fraudulent claims, his duty is to bring that evidence before the Court. The trustee has no inherent power; his power is derived solely from the Ordinance.
ir Henry quoted cases to support his conten. tion that a trustee should never be preclud-dat any time from making inquiry into claims until case was finished, and that bankruptcy rules were not to be regarded as imperative, but merely directory.
Д
His Lordship reserved bis decision.
THE B NKI O DIFFICULTY,
In connection with theChungShun-ko insolv eney Mr. Looker previously sought his Lord- ship's assistance relative to a banking account of the debtor's estate, pointing out that the Houg k ng and Shanghai Bark, the only bank sauctioned by the Governor, had refused to open such an account.
His Lordship stated that in consequence of the Governor's indisposition he had not been able to do what he said he would, but under subsection 3 of section (0 he would give leave to the trustee to retain the money in his hands
for a further week.
Sir Henry-It is au cannot keep it on his hands.
enormous sum; he
His Lordship-He can put it into his I want to regularise private banking account. his position until a further order is made.
MARINE COURT.
Friday, November loth.
STRANDING OF THE "KINSHAN.
A marine court. of inquiry was hell at the Harbour Office respecting the circumstances connected with the stranding of the British steamship Kinshan. The Court was composed of Lieut. C. W. Beckwith, RN, (President), Li ut. H. C. R. Boucher. R.N, H M.S. King Alfred, Captain E. Beetham, master of the 8.8. Empress of India and Captain J. F. H. Park,
Sir Henry-This is a motion to ask your Lordship to expunge the proofs of Chan Hon- ting. Som Cha-obuen. A. F. de J. Soares, Li Sbu, Li Yee-cho, Li Shun-cho and Chan Chek-sang unless before November 30th they substantiate their claims to the trustee in
estate of the debtor. It something to be regretted that for sake of true justice being done to motions as a whole that the application I made in the first instance that this motion should be taken first, was not acceded to. It was all application that did not suit my learned friend to establish that persons here claiming to ba entitled to support a resolution put forward by the creditors were not really bona fide creditors, and to object to any irregularities. I put it to you first that it is a clear duty of any trustee in a bankrupt estate to investigate the claims of those who come forward in the character of creditors. If he does not do that he is not per- forming bis duty, and if he has made au investigation, and has any reason subsequently to believe that that investigation has not been sufficiently searching, it is his right and it is his duty to make further investigation; and I put it to you as a further proposition that it is the duty of the debtor to assist the trustee in investigating claims, and further that it is the duty of the creditors to behave in like manner towards the trustee. Both the debtor and the creditor must treat the trustee with uberrima fides; they must keep nothing from him. The debtor, indeed, is liable to pains and penalties under the act if he is guilty of conduct which amounts to impeding the trustee in the investiga. tion of the estate, and the creditors are, in the eyes of the Court, bound to give a true and faithful account, when called upon by the trustee, of their claims against the estate. The creditor cannot "jump a claim," as it were, He cannot come in, and because the official receiver has admitted his proof, put that forward if the trustee calls upon him to substantiate. It is obvious that it is essen. tial the trustee should have such powers,
The President stated that in this case there otherwise the creditors, who was not a bona were three points they had to satisfy themselves fide creditor, might illicitly get upon the
On, Firs ly, was the mister justified in anchor. list of creditors. The trustee might, within ing at Pillar Point? Secondly, when he found any reasonable time after the claim is filed, his ship drifting eastward, did the master take require further evidence in support of such the ordinary precautions of a seaman to save the proof so long as the matter is before the Court.cargo, lives aud his ve sel? Thirdly, if the ship The trustee in this case has called upon those persons whose names are before your Lordship to substantiate the proofs they gave to and were accepted by the official receiver. The r ason of this application has arisen in this way: Some. -time in September, shortly after the order of adjudication had been made, the official receiver handed over bis papers to Mr. Lowe, who had been appointed as creditors' trustee. The trustee went into the papers handed over to him, and was not satisfied with the sort of proofs which had been accepted by the official receiver. He was
aware that a resolution had been come to by the meeting for the purpose of accepting a e mposition put forward by the debtor, and he was aware
that certain creditors were in four and certain against the composition. The trustee was aware that certain of these creditors were desirous of having a further meeting for the purpose of confirming that resolution. He then conceived it to be his duty to inquire into the claims of these creditora who were supporting the com- Sir Henry then position, and he did it. quoted authorities in support of his motion,
after which
8.8. z du a.
The letter from Captain Lessius of the Kinshan calling for an inquiry was read. also the warrant of the Governor constituting the court,
had her anchors down and all chain out, and her engines going full speed or half, did the court consider from is experience she had a reasonable chance of going aground?
Captain ossings, mister of the 8,8 Kinshan, stated that his ship left the wharf at 8.34 on the morning of September 18th. It was blowing pretty hard from the northwest at the time, and the harbour was full of small craft running for shelter, from which they found great difficulty in getting clear. They ran across to a water- logged cargo host in the middle of the channel and picked off a crew of 13. In due time they arrived at Cap uimun Pass. The wind had shifted by then to west north west and the squals of rain and wind increased. A little of the East Brothers' Island the wind shifted back to north, the sea was running very high, so witness decided to anchor off Pillar Point. This was between 10 and 10.15 a.m. The port anchor was run out and gave 50 fathoms to the water's edge. There wore 427 Chinese passengers on board and four Europeans, while the crew," "Chinese and. European, numbered 100. When the vessel left her wharf her draft was 8 foot 3 inches aft and 7 foot 6 inches forward. The black drum
[November 26, 1906. Indicating a typhoon east of the Colony, was hoisted at the Harbour Office at 8.28 a.m.
The
the
26
Kinshan carried two bow aneborn/ weight of one of which was about cwt. and of the other 19 owt. Ninety fathoms of chain was supplied to each anchor. They got through the Capsuimun Pass about 9.15 a.m., and passed the Fast Brothers about ten minutes to ten. The wind was then about west-north-west, and about ten minutes later shifted to north. The wind was north when he anchored off Pillar Point. The rassel bad only got her chain out when the wind backed to west again. She then fell off breadside on to the wind. Witness tried to get her head to wind with his engines. He hove in on his chain to try to bring her head to wind to stop her rolling. She then commenced to drag He could see at intervals between the squalls. The ship drifted with 30 fathoms of chain to her anchor broadside on to the wind, head to starboard. He could not say what time it was when he was off the Brothers, but when he got clear of them the wind shifted to south-west. Witness managed, by working his engines, to get her stern to the wind. At five beach. the took minutes past eleven she
the whole of the Brothers, and
The passed very olose to them.
wind at. hurrio na force.
HA
Was
дат
After
then blowing When witness passed the Brothers the wind was south west and blowing southerly, so he tried to get inside to the eastward, From the time they passed the Brothers until the ship took the ground would be about 20 minutes. passing the north point of the East Brothers witness did not give the ship both anchors and chains because he thought she would have foundered had he done so. He had had previous experience in a typhoon when a ship was dragging and had been ten years in the river trude
By Captain Beetham--What did you hope to do by having your anchor on the ground with 30 fathoms of chain paid out?--To keep her from rolling.
Why did you not let po the other anchors when off the Brothers ?-Because I was afraid of foundering the ship.
When you left Hongkong did you think you were going to be caught by a typhoon ?—I did not; but thought I would get strong gales as my glass was still high.
When you got to. Capsaiman, did you think you were justified in going to Pillar Point to Anchor? Yes, because the wid had shifted to north
Supposing you had slipped your anchor could you have steamed up?—Yes. If I had knowa the typhoon was going to be so shortlived I think I could have kept her g ing.
By Captain Parks-How much chain had you ont when you took the beach?-About 30 fathoms.
Why did you not give her all the chain ?— Because I wanted to get inside the Brothers,
By Lieutenant Boucher-When she got beam on to the s-a was she absolutely unmanageable? Almest so.
ΚΟ
Chief ficer Smith said the wind was blowing very hard from the westward when the Kinshan left her wharf. On the way to the central channel they stopped to take the crew off a cargo boat. After that witness was employed in getting everythior secured. Before they passed the Brothers the captain told him he did not intend to pass them, but to anchor in Castle Pak Bay. Witness then went forward, having received orders from the captain that when he l-t
the
he WAS to Riva port anchor the ship 45 fathoms of obsin well ontside.
the wiod By this time
was. blowing very hard and was accompanied by blinding The port squalls. It
Dearly ahead.
so much anchor was let go, but there was strain on the cable that witness had to ease away to nearly 60 fathoms before he dared put on the brakes. The vessel then appeared to swing with her head to the South West, still keeping a big strain on the chain. Witness thought they aachor-d on a muddy bottom. After anchoring he knew the ship was dragging by the jump on the chain. Awning spars. and stanchions were blown away and broken. About 20 minutes after anchoring witness received
order from the Captain,
officer to heave in the port chain. Just then
ад
Was
through the second
st
од once
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