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the sum of $4,023, being the amount of damages sus ained by the steam launch Hoi Po in conse. quence of her having, on the night of October 21st, 1906, struck the hulk Stanfield in the
harbour.
Sir Henry Berkeley, K.C.. instructed by Mr. A. Jacks n (of Messrs. Johnson, Stokes and Master) appeared for the plaintiffs, and Mr. M. W. Blade, instructed by Mr. F. P. Hett (of Messrs. Brutton and Hett) for the defendants,
The statement of claim showed that the plaintiffs
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THE HONGKONG WEEKLY PRESS AND
a danger to navigation. Defendants admitted; that the Harbour Master required them to place a light on the wreck; in fact, they pleaded that they did light. He thought the case would turn
lighted on the night of the collision. represe: tative of the defendant company, Mr. Gorham, claimed from the Yangtse Insurance Co. £30,00) for total loss, which claim the Insurance Co. was not prepared to accept. Ultimately it was set out in another letter and agreed that Mr. Gorham should accept £26,000, value of the bulk, and £10,000 for machinery, and that he should retain possession of the hulk until he had salved the the machinery. It was while the salving was going on that the Hoi Po run on the sunken wreck. If it was a fact that the Stanfield was | not lighted on the night of the 21st, and in con sequence the Hoi Po struck her, then the owner of the Stanfield must be liable, and their contention was that on the night in question the hulk was not lighted.
Evidence was called, and the case adjourned.
on the fact as to whether or not the hulk waS The
IN SUMMARY JURISDICTION. BEFORE MR. A. G. WISE (PUISNE JUDGN). ANOTHER EM "LOYEE'S AGREEMENT CASE, The Great Northern Telegraph Co. Ld. sued C. F. Franco to recover $25, being damages for breach of agreement, whereby the defendant agreed to serve the plaintiff com- pany as telegraph operator upon the terms and conditions (inter alia) that the agreement could be terminated only by three months' notice in writing, which condition the defendant failed to observe.
were owners of the steam launch Hoi Po, and were shipbuilders carrying on business at 29 Wing Wo Lane. Defendants were the owners of the sunken hulk Stenfield, and carried on business at 3 Pedder Street. The hulk Stanfield foundered and sunk in Yaumati Bay during the typhoon of eptember 18th. It continued to be and WAS ou October 21st, at the time of the happening of the injury hereafter mentioned, in the possession, and under direction, management and control of the defendant company. The said hulk was allowed to remain sank in a position dangerous to navigation-without sufficient steps being taken to indicate her position, or warn approaching Vessels of it. Prior to Octover 21st the defendants had been directed by the Harbour Master to affix a light to the said sunken hulk for the purpose of indicating her position, and on the day in question there was no light affixed to the said hulk, nor anything to indicate her position. At 10.30 on the night of October 21st the Hoi Po, while on ber way from Mongkoktrai to Hongkong, could not and did not see the sunken hulk, owing to her position not being indicated, and in consequence came into collision with the said sunken halk, unlighted as aforesaid, at a time when the tide was just on the turn, and as the tide ebbd the Hoi Po gradually sunk. In consequence of the injuries sustained by the Hoi Fo by reason of the said collision, the Hoi Po was unable to earn any profits from October 22nd to November 12th inclusive. The plaintiffs had also incurred expenses in raising and refloating and repair-damage. ing the Hoi Po. The plaintiffs therefore claimed 84 (23 damages, made follows:- Loss of profits, $50 a day, from October 22nd to November 12th, $1,100; cost of raising the Hoi Po, $1,800, and cost of repairs $1.123.
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The defence set forth that the defendants did not know and could not admit that the plaintiffs were owners of the Hoi Po, but admitted that plaintiffs were shipbuilders. They further admitted that up to September 18th, 1906, they were the owners of the hulk Stanfield, bat stated that prior to October 21st they had abandoned the hulk to the Yaug- tse Insurance Co. Ld., the insurers there- of as being a total loss. They denied that on October 21st the hulk was in their possession, and under their management, direc- tion or control. It was also admitted that prior to October 21st the defendants bad been requested by the Harbour Master to affix a light to the sunken halk, but denied that they were under any obligation to affix such light. On October 21st the hulk was, at all material times lighted with a red single light showing all round. Defendants did not admit that the Hoi Po on October 21st came into collision with the hulk, or was injured in any way, and say that if the Hoi Po did collide with the sunken hulk it was owing to the negligence of those in charge in not keeping the proper lookout, and in navigating the Hoi Po in an
Mr. E. J. Grist (of Messrs. Wilkinson and Grist) appeared for the plaintiff, and Mr. P. W. Goldring (of Messrs. Goldring and Earlow) for the defendant.
His Lordship-The agreement is admitted, is it not?
Mr. Goldring-Yes, my Lord. It is merely a question of damages. We have paid $25 into Court, and say it is the extent of the
R. Nielsen, manager of the plaintiff Com- pany at Hongkong, said he employed the defendant who signed a preliminary agree- ment for three years. At the end of that time he signed the agreement before the Court, which made his appointment definite. When the second agreement was signed he was sent to Amoy. The Company paid his fare of $30, and granted him an extra allowance. In the beginning of April the defendant said he was sick, and gave a week's notice. He did not conceal the fact that he was coming to Hongkong to another position, and later gave one month's notice.
Mr. Grist As regards the damage there is his fare.
Mr. Goldring-That is provided for by his agreement.
Witness, continuing, said the defendant had been taught his duties during the three years he was in the Company's employment. When he left, his work had to be distributed among the staff.
Mr. Goldring objected. The witness could not speak as to what happened at Amoy.
Witness- I am daly informed of what happens at the Amoy branch.
Mr. Goldring-That is not evidence, my Lord.
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(June-10, 1907.
In cross-examination, witness said they brought the present action as a warning to other operators who might wish to break their agreements.
Mr. Goldring—As a matter of fact, this man WAS never an operator ?-Ha was counter clerk.
charge
And his principal duties ?-To telegrams.
That work is done by Chinese usually, isn't it? -By Chinese, ortuguese and Europeans.
A Chinaman is quite competent to do the work after being trained ?—He is not.
Then why do you employ Chiramen ?—They are incompetent because, as a rule, they know very little about geography.
His Lordship, after hearing the solicitor's address, said he thought $25" was an absurd 611 m. It might be hard on the defendant to have to pay more, but it was equally hard on the Company for him to break his agreement and go home. Out of pocket, perhaps, the damage did not amount to the sum mentioned, but his Lordship certainly thought the inconvenience suffered in sanding him up to Amoy did. There had been too many of these breaches of agree- ments of late by captains, clerks and others, to further their own ends. The defendant would have to pay $100 as damages.
Tuesday, June 6th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF
JUSTICE).
A DISPUTED MORTGAGE.
His Lordship decided on some of the pre- liminary points in the application brought on last week to set aside a deed of mortgage. The parties were Long Kee of the firm of Messrs. Fook Wo Chong, merchants carrying on business at 36, Wing Lok street and Ng Wai, merchant, carrying on business in Hoogk ng. The Hon. Mr. H. E. Pollock, K.C., and Mr. H. G. Calthrop (instructed by Mr. A. G. Jackson of Messrs, Johnson Stokes and Master) appeared for the plaintiff, and Mr. M. W. Slade (instructed by Mr. G. K. Hall Brutton) represented the defendant.
His Lordship said:-
The agreement to engage the compradore, signed immediately after the mortgage which was given as security for the compradore's due performance of bis duties, and the fulfilment of his liabilities as such, should on general principles I think be construed, as far as necessary and possible as one document with the mortgage security, for the mortgage contains an extended summary of those duties and liabilities. I do not think this general principle is affected by the fact that the agreement is made use of for the purpose of completing the security by the deposit of $20,000 cash, which deposit, it is to be observed, was made by the mortgagor, But in the case of the twelfth clause of the agreement the reference to losses resulting from sales, etc, seems clearly to refer to the losses which are specially mentioned in the clause of the mortgage which makes the compradore liable to pay such losses. I am therefore of opinion that clause 2 of the agreement governs the liability, clauses of the mortgage in the matters to which it refers. With regard to the mortgagee's bave BOMB power of sale I confess I difficulty, 88 although it must 16 point of practice frequently arising, the standard books do not throw too much light on it. The nearest case I can find to the present is Rhodes v. Auckland (16 L. C. R. 212). It is not on all fours, but I think it will guide me to, I hope, a correct decision. I think in such a casefas the present the mortgagee has clearly right to redeem, and therefore to the amount, enquiry and inspection which I have given him. The consequence of this essentially is that the power of sale is in suspense till the enquiry is completa. The mortgagee, however, as I understand, does not intend to press the sale, of which he has given the mortgagor notice, and therefore I will not go into the Mr. Grist-Even if my friend could plead question whether, and on what terms, I should it, I should have no trouble in showing that restrain its going forward. The mortgages the contract was for his own benefit, and | asks however for an express declaration in the would be uphold by any Court.
decree that his power of sale is not affected by
Witness, proceeding, stated that in con. sequence of the defendant's leaving, there had been a considerable amount of trouble at the
improper and reckless manner, and at an ex-Amoy branch. cessive speed.
Sir Henry Berkeley submitted that under the law. notwithstanding what passed between the Yangtsze Insurance Company, and the defen dants, the bulk remains in the possession of the latter. A ship could only pass from one to another in a particular way under the Merchant Shipping Act. The claiming from an insurance company on a total loss does not in any way that pass the property. His position was in law the defendants were the owners of the hulk on the day the Hoi Po struck her, and even if they were not pwner they were in actual possession, management and control of the wreck. Therefore it followed that the legal obligation of anyone having the management, *direction and control of a wreck was to take the necessary steps to prevent that wreck becoming
His Lordship-I should like to know about this $250 damages ?
Mr. Grist- i he man becomes valuable to the Company after learning his work, then he suddenly quits.
His Lordship-I don't know how the other side arrive at $21.
Mr. Goldring-I have a letter showing that my client had a man to take his place. He was only a clerk, not an operator We con. tend they suffered a loss of not more than $25, the cost of letters and telegrams. The defendant is a minor, but, of course, cannot plead that.
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