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392
Mr. M. W. Slade, instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist) appeared for plaintiffs, and Hon. Mr. H. E. Pollock, K.C instructed by Mr. H. G. C. Bailey (of Messrs. Johnson, Stokes and Master) for the defendants.
THE HONGKONG WEEKLY PRESS AND
The statement of claim set forth that on June 30th, 1905, the plaintiffs shipped 280 tubs of indigo on board the 8.8. Yunnan belonging to the defendant Company for Carriage to Newchwang under a bill of lading signed by Mesera. Butterfield and Swire, agents for the defendant Company. The indigo was not delivered at Newchwang, | or any part thereof.
(December 19, 1906,
In cross-examination, witness said he kept the keys of the third floor because the plaintiff blocked the passage.
Witness, replying to his Lordship, said the plaintiff wanted him to leave the premises on the day of the Police Court c188.
of the shipowner until the goods were delivered. | looked up. He is a source of nuisance, sa he He submitted that the function of a mate's does not know what he is doing. receipt was limited to the functions that could be exercised by the mate; that the mate was not allowed to make alterations in the contract of carriage beyond the quality, nature and description of the goots. Regarding the bill of lading, none of the clauses were ever inter- preted in their widest po sible meaning; they were always interpreted in their narrowest pos- sible meaning against shipowners. Mr. Slade then proceeded to quote authorities in support of his arguments, after which evidence was called, and the case adj urned.
IN SUMMARY JURISDICTION.
LESSEE AND TENANT. Tam Chak-u sued Louis Comar to recover $158.20 for two Chinese months' rent and taxes in respect of the third floor of 61 Des Vœux Road Central.
Mr. F. X. d' Almada e Castro appeared for plaintiff, and Mr. E. J. Grist (of Messrs. Wilkinson and Grist) for defendant.
In the statement of defence the defendants admitted the truth of the allegations contained in paragraph 3 of the statement of claim, but BEFORE ME. A. G. WISE (PUISNE JUDGE). further said as follows:-The 280 tubs of indigo were with the knowledge and consent of the plaintiffs shipped as deck cargo at the shippers' risk, and during the course of the voyage in question the indigo was jettisoned by the mariners pursuant to the order of the master in consequence of the extraordinary bad weather which prevailed, and for the safety of the defendants' s.s. Yunnan and of the lives of those on board. Among the exceptions and conditions contained in the bill of lading under which the said indigo was shipped and carried were the exceptions of loss or damage from jettison, and "from all and every, the perils, dangers or accidents of the sea and navigation of whatso. ever nature and kind, "and further " any act, neglect or default whatsoever of the master or mariners or other servants of the company in the management or navigation of the ship." All kinds of goods carried on deck are carried solely at the shipper's risk. The defendants say in the alternative that if, which they deny, the said jettison was improper and unnecessary, or if it was due to any neglect or default on the part of the master or mariners in the mangement or navigation of the ship they are protected by the aforesaid exceptions and conditions from the liability of the plaintiffs.
The reply stated that the indigo was sent off to the Yunnan to be shipped in the ordinary and usual manner. The plaintiffs on delivery of the indigo on board, received the mate's receipt and in due course changed it for the bill of lading which was an ordinary below deck bill of lading and contained no statement that the indigo was to be carried on deck at shipper's risk. The plaintiffs joined issue.
Mr. Elade, in opening, said the facts of the case were exceedingly simple. The plaintiffs employed a Chinese firm, the Yee Txi Cheong, whose business is to ship goods for other people, to ship these goods. The indigo was taken off to the ship in a lighter and shot down a slide into a water ballast tank at the bottom of the ship. As soon as the loading was concluded, the tallyman wrote in Chinese on the face of the delivery order "received 280 tabs of indigo
" with no comment or remark. Then he gave the delivery order and mate's receipt to the shipper, who banded them to the ship's compradore. The compradore or his clerk filled up these forms in English and signed them in English Thea there was an hiatus in the story, and the next item they could prove was that in the course of that afternoon the plaintiffs took the bill of lading to the German Lloyd Marine Insurance Co., and obtained a policy of insurance for these goods as lower deck goods. The authorities were clear that where a bill of lading did not specify where the goods were to be carried, it implied a contract to carry the goods below deck. With regard to the mate's receipt, the defendants had pleaded to one document only, therefore they should be bound by that document-the bill of lading,
Mr.Pollock directed his Lordship's particular attention to the reply filed, in which it was denied that the indigo was shipped in the ordinary and usual manner. The conditions on the mate's receipt were incorporated in the bill of lading, and it was incorrect for the plaintiffs to say that it was an ordinary below deok bill of lading.
Mr. Blade, continuing, said the conditions on which a bill of lading was issued before the goods were shipped were that the shipowner would not deliver the goods alleged to be pro- posed to be shipped unless the mate's receipt was produced at the port of arrival. In such cases the mate's receipt never got back into the hands
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Mr. Almada stated that plaintiff let the premises to the defendant од October 3rd, 1905. Some time afterwards he gave notio 10 the tenauf that he must quit the premises. informing him at the same time that if
he did vot he would be charged $70 a month from November 1st. Defendant continnad in the premises until the 29th or 30th December and did not pay any rent, but he had paid $50 into Court.
Plaintiff deposed to renting the second and third flors of the house in question from Tam Sun-ting. He let the third floor to defeudant at a monthly rental of $50.85 including tar 8. After receiving a notice to quit, written by plaintiff's son, defendant did not leave the pre- mises, neither had he paid the increased rent demanded. Witness did not dare to apply for the increased reut for fear defendant would strike, scold and beat his children. Io No. vember defendaut agreed to pay the Id rent.
His Lordsbig-Did you agree to take the old
rent ?
Plaintiff parried the question.
His Lordship-I have always thought he was not capable of minding his own affairs. He ought to have someone looking after them, although at present he's as clever as I've seen bim, and I have known him for about :5 years Cross-examined-Witness had not a lease of the floor. Tam San-ting, the owner of the premises, was a distant cousin of 1 is. After supplying defendant with a written notice witness saw him and asked for payment of the increased rent, This was about December 16th
Mr. Grist--What have you waited a year for?-My children did not dare to go and ask him for the reat.
·
You could have summoned him. I was summoned by him at the Police Court and bound over in the sum of $10 to keep the peace for twelve months,
Mr. Grist-That's exactly it, and that's why you've trumped up and brought this case?- That is not so.
His Lordship What did he summon vou for at the Police Court ?— Because I asked him for the rent and ho did not give it.
His Lordship - Is that why you were bound over; because you asked for rent?
Mr. Grist-He was bound over for pouring water over the verandah after the usual Chinese fashion,
Witness-I was bonud over for assault. His Lordship-I suppose that was because the water dropped on defèudant's face.
Defendant was then called and said he leased two floors of the house from Tam Sun- ting and one floor from plaintiff. When wit- ness got the notice to quit be showe it to the owner, who told him to take no notice of it. Witness told the owner he could not agree with the old man because of the case at the Police Court in which he put him to peace (laughter) for twelve months. The owner then told him he would turn Tam Chak out and give with es a lease of the whole premises.
His Lordship-I am still more of opinion than ever that he (the plaintiff) ought to be
Tam San-ting was called next, and said he had agreed to let the whole of the premises in question to Comar, and informed the plaintiff accordingly.
Hs Lordship-Why didn't the plaintiff move ?-Because Comar was unable to take over the premises.
Mr. Grist-Tam Chak had no right to collect
rent.
His Lordship-I don't see that Comar should suffer in this matter. I think these two people (witness and plaintiff) should suffer if I can only make them:
Mr. Grist-We are willing to pay the rent for November, but it was so difficult to say which out of the (wo ought to receive it that we paid it into Court.
His Lordship-My opinion is that Comar ought not to pay anything. I shall keep the money in Court and these two people can fight out to whom it belongs.
Mr. Almada asked his Lordship to order the payment of $70 to his client.
Mr. Grist obj-oted, string that the two Chinamen were in touch with one on ther.
His Lordship-Yes; they are both tarred with the same brush. There will be judgment for the amount paid into Court without costs.
Thursday, December 6th.
BEFORE SIR FRANCIS PIGGOTT (CHITE JUSTICE).
CHUNG SHUN-KOO'S AFFAIRS. His Lordship delivered his decision regarding the motion for leave to disclaim the lease made between the debtor and the Hongkong Land Investment Co as lessors,
Sir Henry Berkeley, K.C., instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and Deacon) appeared for the trustes, and Hon Mr. H. E. Pollock, K.C., represented the Land Investment Co.
His Lordship said-In the matter of a dis claimer of a lease entered into by Chung Shun- koo with the Land Investment Company, it looked at first sight as if I should have at last to decide the much vezed question whether the English Bankruptcy rules were in force in the Colony in virtue of the joint operation of section 71 of the Bankruptcy Ordinance and sub-sections 3 and 4 of the C.C.P. It seems probable, however, that the question will only be solved piecemel sad by a gradual process of elimination. I have now only to consider whether the English rule 320 is in force here. The operation of section 71 in this particular is subject to the limitation that the rules shall not be inconsistent with the Bankruptcy Ordinance, and on the face of it the English rule 320 is disclaimed without leave of the Court in the incousistent. It begins
A lease my be
'ollowing cases which fits on to section 55 (3) : "a trustee shall not be entitled to disclaim a leave without the leave of the Court, except in any 0388 which may be prescribed by general rules." The provisions of section 48 (3) of the Hongkong Ordinance are simply "a trustee shall not be
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titled to disclaim a lease without leave of the Court". The € 1808 dealt with lo rule 320, one of which was attempted to be set up here, do not apply to this Colony. This leaves us with the broad general rule that a lase cannot be disclaimed without leave of the Court. This must mean that a disclaimer is not a disclaimer until it is sanctioned by the Court, which of itself precludes the possibility of allowing a disclaimer to have a retrospective operation. Fot the ressons adduced for such a retrospective operation might go to the extent of intro lucing à condi- tion similar to the case contemplated in English rule 320.1 do not think therefore that I need unravel the disputed interpretation of what took place between Mr. Lowe and Mr. Deacon on the one side, and Mr. Deacon and Mr. Shelton Hooper on the other. I must point out, however, that Mr. Lowe in his affidavit