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SUPREME COURT.
Friday, April 2nd.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE.)
SHORT DELIVERY OF SARDINES.
His Lordship delivered his reserved judgment in the case in which Messrs. chuldt and Co. were sued by Ho Wai Hing, trading as the Foo Kat Cheung firm, to recover $316.34, the price of 2 cases of sardines short delivered."
Plaintiff was reprensented by Mr. Otto Kong Sing, while Mr. H. G. C Bailey (of Messrs. Johnson, Stokes and Master) appeared for the defendant firm
His Lordshibered judgment for the plain tiff for $109.05‰nd costs.
A SHIPPING DISPUTE.
The Sze Yap Steamship Co., Ld. brought action against the Tai Wo Company to recover $155, being as to $100 for damages and $55, cost
of divers.
Mr P. Sydenham Dixon (of Mr. R. A. Harding's office) represented the plaintiffs, and Mr. Reader Harris (of Messrs. Wilkinson and Grist) appeared for the defendants.
The statement of claim set forth that one of the defendants boats was improperly anchored too close to plaintiffs' wharf, and in such a position as to entangle the propeller of plaintiffs steamer Tak Hing as she was proceeding to the wharf. This caused a delay of the ship, and necessitated the lowering of divers to disentangle
THE HONGKONG WEEKLY PRESS AND
for the decision, so his Lordship proposed to deliver a short written judgment on this subject He would consider the matter.
[April 8th.]
The Puisne Judge delivered his reserved decision in this action
His Lordship said:-With the concurrence of the parties I have considered the evidence in this case with the valuable assistance of the Assistant Harbour Master Lieut. Bookwith R.N. The facts as given in the evidence are taking them as shortly as possible, as follows:- At 3.20 a.m. on December 4, 1908, the plaintiff Company's steamship Tak Hing was proceeding through the Southern Channel on the way to her wharf. Outside, and before commencing to back into the wharf, the captain saw the defendant's boat lying some twenty feet from the side of plaintiff company's private wharf. The nightsoil boat was hailed by the Tak Hing without effect, and the Tak Hing then came backing into the wharf and picked up as she did so the anchor rope of the nightsoil boat with her starboard propeller. This entailed an ex- penditure on divers to clear the propeller, and a delay ensued which resulted in loss of passengers. The plaintiff's case is that as the nightsoil boat was lying so as to obstruct the wharf and thereby committing an offence under section 3 (2) of the Merchant's Shipping Ordinance 1906, the defendants must be liable for the conse- quences and they claim to recover damages for the detention of the vessel and the divers fees, the defendant may have been in fault, yet the Now, it is a familiar principle of law that though plaintiffs cannot recover if the danger was one which might have been avoided by the exercise of ordinary diligence. I have to enquire, (1) Whether when the captain saw the nightsoil boat close to the wharf, a state of things existed from which he should have inferred that it would be risky to come alongside (2) If there was a risk was it one which he was bound to run; was there any other course open to him at the time which prudent man would have adopted? The answers I have, with the help of Mr. Beckwith, arrived at are follows:-To the first question: In the circum- stances it was not a prudent course for a vessel of the beam of the Tak Hing to come into a wharf at the side of which a junk was anchored within twenty feet. With a flood tide and a east wind the junk was probably lying away from her anchor and even if she had been moved out of the way by those on board the Talk Hing would be very likely to foul the moorings with her propeller. The answer to the second question is that the risk was not one forced the captain in the sense that he bound to take it. Even if he did not
to go
to the other side of the wharf, which was disengaged, it would have been easy for him to drop his anchor out side until the way was clear. No doubt steamers Mr. Dixon-In this case there was an incoming in have a good deal of trouble with fringement of the rules of navigation which gave them wrong at once.
the rope.
Evidence was called, and adjourned.
the hearing
The action was continued on the 5th inst. Yap teamship Co.. Ld. sued the Tai Wo Co. to recover $155, being as to $100 damages caused through defendants' boat being anchored too close to plaintiffs' wharf and as to $55; cost of divers required to remedy such damage.
Plaintiffs were represented by Mr. P. Syden- ham Dixon (of Mr. R. A. Harding's office), while Mr. Reader Harris (of Messrs. Wilkinson and Grist) appeared for the defendants.
Mr. Harris, on the closing of plaintiffs' case, said that but for the master of the Tak Hing's personal objection he would certainly have avoided all danger. Considering that there was a flood tide at the time, the other side of the wharf would surely have been safer. The onus was on the plaintiffs to prove that they could not have avoided a collision with safety to themselves. They had not proved that they were in fault, and although they might have proved that defendants were in fault, and were improperly moored, the onus of proof was on
them..
His Lordship-They were made fast to a ring; I suppose. it was put there for vessels to be moored to..
Mr. Dixon-I don't know, but undoubtedly they are not allowed to obstruct us going to our wharf.. Surely we are allowed to use our own wharf and go to which side we wish.
care
as
upon
was
these boats, especially at night. I expect the captain's past experience had led him to believe that the obstruction might be removed before his vessel reached it. Under the circumstances, however, the plaintiff cannot succeed and I must give judgment for defendants with costs.
Monday, April 5th.
IN ORIGINAL JURISDICTION.
April 12, 1909
Koo further lent to the defendant the sum of $4,000 for which the defendant made two promissory notes of $2,000 each. On March 7th the deferlant borrowed a further $100 from Chung Shun Koo for which he gave a promissory note. On February 8th Chung
hun Koo, for valuable consideration, and with' the consent and knowledge, of the defendant endorsed these promissary notes in favour of the plaintiff. The plaintiff as endorsee and assignee claimed the sum of $7/521.15 and interest at the rate of 12 per cent. per month from the date of the writ until judgment.
The defence was that the $100 and $300 notes, were not made by the defendant, who further denied endorsing the $2.000 notes. Defendant had never seen the plaintiff, and did not know who he was.
notes on which the claim was based were made by Mr. Calthrop informed the Court that the defendant in favour of his brother Chung Shun Koo. The plaintiff's case was that the notes were endorsed over to him by Chung Shun Koo, and he
was the holder of the value. When four or five years ago he made the soquaintance the plaintiff came to Hongkong from Canton of Chung Shun Koo. On February 8th, 1906, Chung Shun Koo called on the plaintiff and took with him the defendant whom he introduced as his brother. Mr Chung Shun Koo then produced four promissory notes; defendant was asked about them, and admitted they were his.
would have amounted to about $5,000. Plaintiff He also said there had been nothing paid on them. up to that time when the principal and interest
then took the notes, which were handed to him by Chung Shun Kco, who signed them after tiff then paid $5,000 over to Chang Shup Koo. which they were endorsed by defendant. Plain- At that time defendant made representations as to his being entitled under the will of his father to certain properties about which an admini. stration action was proceeding. Some three months afterwards plaintiff met defendant and asked for payment, but defendant said he could. not or would not pay at the time because he was waiting for the settlement of property to Several times after this when plaintiff saw de- which he was entitled under his father's will. fendant he asked for the money, but the same he made the $100 and $300 notes, but he did. excuse was made. The defendant denied that
not deny that he made the $2,000 notes.
Sir Henry Berkeley-He does. He made two notes, but not these two.
Mr. Calthrop-There is no special denial in the pleadings. He denies that he made an en- dorsement, and he denies that there was any consideration. Counsel then wished to put in the promissory notes.
Sir Henry Berkeley-They are not notes, they are documents.
Mr. Calthrop That is setting up a special defence..
Sir Henry Berkeley--If a man brought a comic song into Courtit could not be called a note.
His Lordship-That does not raise the ques tion of standard. The defence which has been raised for the last three years and has never come to a head, can hardly come to a head on these pleadings.
·
Sir Henry Berkley-We have not a copy of these documents.
His Lordship On the pleadings I can. hardly say that the documents sued on are not
His Lordship-If you are prevented from using your own wharf you have your remedy in damages, and there is the further provision that the Harbour Master may fine an offending boat. BEFORE HIS HONOUR SIR FRANCIS PIGGOTT promissory notes.
I don't know that you are entitled to take the risk..
Mr. Dixon We took every precaution we could.
His Lordship-You could have gone to the other side of the wharf.
Mr. Dixon-But we should not be forced out of our course. I don't know how long it would have taken to get round to the other side.
His Worship remarked that there was a case very similar to this some six years ago to which he had been referred, and in which Mr. Justice Wise found almost similar conditions. A cargo boat was lying near a private wharf and made fast, and when a vessel came in the rope got entangled with her propeller and divers had to be sent down. The owners of the Stamship Co. sued the cargo boat, and judgment was given for the defendant with costs. In that case no argument was reported, and no reasons given
(CHIEF JUSTICE).
DISPUTED PROMISSORY NOTES..
The hearing of the action brought by Tsoi Kan against Chung Tsim Kwai, otherwise Chung Chik Yu, to recover $7,521,15, amount due with interest on a number of promissory notes, was continued.
Mr. H. G. Calthrop, instructed by Mr. F. X. d'Almada e Castro (of Messrs. Almada and Smith) appeared for the plaintiff, the defendant being represented by Sir Henry Berkeley, K.C., who was instructed by Mr. Č. F. Dixon (of Messrs. Hastings and Hastings).
The statement of claim showed that on January 21st, 1904, one Chang Shun Koo lent to the defendant the sum of $300 upon a promissory note repayable on demand, together with interest at the rate of 1 per cent. per month. On November 21st, 1904, Chung Shun
Sir Henry Berkeley-I am informed that the inspection which plaintiffs say we have had took place last week after the pleadings had been closed for weeks. I take it that I am not called upon to amend; plaintiff has to prove that we gave him promissory notes.
His Lordship-It is impossible for me on the pleadings as they stand to admit the defence that the documents sued on are not promissory notes.
:
Sir Henry Berkeley-Will you permit me to. amend?
His Lordship I must consider. That alters the whole character of the case.
Mr. Calthrop-On December 15th defendant made a declaration in which he said he had had inspection.
:
Sir Henry Berkeley-Will your Lordship permit me to now plead that the documents sued on are not promissory notes.