500
have been a mistake. It could not have been intentional because it was diametrically opposed to the facts, and yet it was attempted to put it in in evidence. Continuing he said that the Government was bound by the judgment in the former action, and he suggested that one point,by agreement between Chu Chuen's executors and the Government, should now be referred home for the opinion of some person-preferably the law officers of the Crown to determine. Mean while judgment must be entered for the defendant with costs.
On the application of Sir Henry Berkeley a stay of execution was granted while plaintiff considered the position.
|
•
of
[June 12, 1909.
or
THE HONGKONG WEEKLY PRESS AND
and therefore that a non-suit should be entered. we go down into the cabin ; the stern was
one in the stern which was out six feet above Reverting to the facts, he said there appeared wrenched off and sank with four persons on
her hull or sixteen feet above the sea. If she in the Government Gazette of 19th December board, who were drowned. The remainder of had a second light it was on her main mast and 1891 a notice which contained a list of lessees the junk was towed to the shore by another junk not on the foremast; it was not at the top even who had accepted and among them figured the which was in company with the plaintiff's junk, of that mast and was not so high as the light in name of Yu Chow in respect of sections B and and afterwards towed round to Shaukiwan; and
the stern. The defendant relies on this fact to D. It was attempted to get that in in evidence there she is, or was, when this action was com- bring the junk within sub-section 30 of a new and of course it was objected to, but the Evid-menced, on the slips, in witness of the story, as section introduced into the Merchant shipping ence Ordinance of the colony contained a curious Messrs Long Hing's excellent photographs show- Act of the colony by Ordinance 16 of 1906. provision which he could not pass over without | ed. And a Chinese firemen from the Holstein came The misprint of section 11 for section 5 of the criticising most adversely. By section 26 (3) | and told us that he had seen the bit of the stern an earlier amending Ordinance of 1905 may be of Ordinance 2 of 1889 it was provided that in floating down the starboard side of the ship level treated as such as it is immaterial; because civil proceedings "all proclamations, etc., and with the water, apparently just on the point of section 25 of the principal ordinance is other official communications of the Government sinking. He also heard cries of "save life," but in fact amended by the Ordinance of 1905 appearing in the Government Gazette may be the master and second mate of the Holstein and therefore incorporated into it irrespec- proved by the production of such Gazette and threw doubts on this story and questioned the tive of the erroneous recital. The object shall be prima facie proof of any fact of a identity of the junk on the slips with that of of this section is to extend the provisions public nature which they were intended to the junk with which they were in collision. For as to lights prescribed by section 25 of the notify." The provision ought to be at once this reason it is quite true that their ship principal ordinance for junks when under way in repealed. It was impossible in this way to maks did strike a junk about where the junk people the waters of the Colony to junks when they any document which was of a public nature and say she struck theirs, but there was no crash, are beyond those waters. It provides that if in which was put into Gazette prima facie evidence only I suppose a bump and they heard no any section brought in a court in the colony in of the truth of the contents; that was, shift the cries; and as the junk with her sails set slipped respect of a collision between sunset and sunrise, burden of proof on to the other side, compelling down alongside the Holstein both master and in or outside the waters of the colony, between him to prove the untruth. The Gazette was mate say they saw the outline of her sails and a junk and another vessel, it is proved that the generally in charge of the Assistant Colonial her three masts standing; that is to say, they saw junk did not carry the lights prescribed for sail- Secretary or sometimes of a chief clerk and it the pole in the stern on which the stern lighting vessels by the International Collision simply made anything which a junior officer would have been suspended. Therefore, accord- Regulations or the lights prescribed for junks by chose to put into the notice prima facie evidence. ing to them, this junk was not cut in two at all, section 25 of the principal ordinance as amended,
such The danger of the provision was well illustrated and the vessel on the slips of which we had the then
shall be deemed to be in by what occurred in this case. The notice must photographs is not the junk with which they col- fault. I think the grammar, although it was lided, and that one has joined the fleet of the criticised, bears the meaning I had given to it. Flying Dutchman." In order to get at the It is intended to be a procedure ordinance, truth of his preliminary fact of identity I pro- denying the right of action to junks unless posed two questions to the assessor. First: Would certain conditions have been fulfilled; but is a junk with her stern knocked off, as shown in the drafted in such a way as to make it differ hardly photographs put in evidence, keep sufficiently if at all from substantive legislation having afloat to enable her to be towed some seven
an extraterritorial operation. But in view of miles to the shore? And further to enable the decision I have recently given on the
non-allowance the King's her to be towed round the coast to Shan-effect kiwan? His auswer is: Yes. As a water express allowance of Ordinances in Crown logged junk she would tow a wash in colonies, the question whether this provision is smooth water a long way; certainly all of ultra vires the Hongkong Legislature or not, seven miles. Probably some strengthening need not be considered. Subject therefore to the would be done to her by cross beams proviso of this section 1 must hold in virtue of it before she left for Shaukiwan. Second: Would that the junk was in fault. The proviso is as a steamer of the size of the s.s. Holstein going follows unless it is shown to the satisfaction at half speed, about seven knots, according to
of the court that the circumstances of the the mate's evi ence, coming into contact with a
case made the omission to carry such lights junk sailing slowly across her bows at more or necessary. On the plain meaning of these less of a right angle, at a point just aft of her words this case does not fall within them after bulk head, do her no damage at all, but because there is nothing to show that the omis- merely cause her to swing round and glide past sion to carry the prescribed lights was necessary. the steamer uninjured? His answer is:
I But I was referred to the case of the consider that certain top damage would be done Englishman where, so it was said, similar but not the amount shown in the photographs; words used in a section of the Merchant Ship- as the blow would be a glancing one with the ping Act 1894 had received a different con- based on B tendency to push the junk away after impact. struction. The Englishman was These answers show that the assessor thinks judgment of the Privy Council in the Fanny either that the damage done to the junk was M. Carvill which is a very important decision; very slight and was deliberately aggravated but on a careful perusal of the judgment it will when she was brou ht to Hongkong, or suffered be seen that these words were in fact interpreted What the more damage while she was being towed down, according to their normal meaning. or that the junk on the slips was not Committee decided was the proper effect of a the junk with which the Holstein collided. law which says that, if regulations have been He naturally cannot do more than give expres- infringed, the ship by which they have been sion to his doubts. I must therefore decide infringed shall be deemed to be in fault. It was the question on the evidence. I cannot accept held that these words do not mean that there is the theory that the junk is a different one an absolute presumption of culpability against altogether, for the coincidence would be too the vessel guilty of such infringement, to which extraordinary for me to adopt in the absence of the Court is bound to give effect, whatever the anything but surmise to guide me. And if she nature of the infringment may be; but that the was the junk and was on the slips she was there reasonable construction was to be placed upon because she was damaged, presumably by the them; "that the infringement must be one hav- collision; this would not affect the judgment ing some possible connection with the collision but only the amount of damages, as to which or in other words, that the presumption of there would have to be some precise negative enlpability may be met by proof that the evidence. I have reason to doubt the infer infringement could not by any possibility have ence drawn by them on the night in ques- contributed to the collision." The words which tion. I conclude that they must be mistaken were interpreted by this decision were "shall be as to what they saw of the junk as she deemed to be in fault"; and not the proviso as slipped by the steamer. Moreover the identity to the departure from the regulations being of the junk was not formally challenged so as excused if it was necessary. These same words to throw the burden of proving it on the plain-shall be deemed to be in fault" occur in the tiff; it was only done somewhat superficially in local legislation which I am considering, and cross examination, so that the onus was on the they must clearly be interpreted by the light of Holstein and many points occur to me which the decision and that of the Englishman. if proved might have gone far to substantiate | Therefore I put to the assessor this third the suggestion; such as careful examination of question-The junk having infringed the the junk itself, and as to the ownership as regulations as to lights and carrying only shown by the books of the owner of the slips. a stern light, can it be said that this While therefore, admit the force of the fact could not by any possibility have assessor's doubts. I'must hold that the junk's contributed to the collision? In other words identity has been established. I now come to the do you accept the mate's statement that question of lights. The evidence of the plaintiff had there been the regulation lights he could himself shows that the junk was not carrying have told the junk's course more accurately? two bright white lights of which one was on His answer is Emphatically, it cannot be the foremast head; she was apparently carrying said that the infringement of the regulations
IN ADMIRALTY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT) WITH LIEUTENANT BECKWITH, R.N.
AS ASSESSOR.
A COLLISION CASE.
Judgment was delivered in the action for damages for collision instituted by Wong Cheong Wai, owner of the junk No. 12,115 against Michael Jebsen, of Apenrade, Schleswig- Holstein, in the Empire of Germany, owner of the steamship Holstein, plaintiff claiming $10,000 for the loss of the junk and her cargo. The collision took place place on the China Sea on 4th October, 1908. The Hon. Mr. H. E. Pollock, K., instructed by Messrs. Goldring Barlow, and Morrell, formerly appeared for the plaintiff who was now represented by Mr. H. G. Calthrop, and Mr. M. W. Slade, instructed by Messrs. Deacon, Looker and Deacon, appeared for the defendant.
·
His Lordship said:-' The plaintiff is the owner of a certain juuk and he brings an action in rem against the s.s. Holstein for damages re- sulting from a collision, which is alleged to have occurred in the hina Sea, during the night of 24th October, 1908, about seven miles due south of Tong Mi Point. The stories as told by those on board the two vessels are more than usually discrepant. The junk was, according to the story told by the master and his steersman, proceeding to her regular fishing ground which lies about fifty miles south of Tong Mi Point; she had been fishing in the bay between that point and (bi Lang Point and was sailing on tho port tack with a light northeast wind, as near to the wind as she could sail, and with only just steerage way on her. The men say that the course they were on would take them in ordinary circumstances about six hours, to get to the fishing ground without tacking; also that they did not tack at all after they were once on their course, which was set before they got away from the Point. The Holstein was proceeding on her regular course from Swatow to Hongkong at about eleven knots. The night was clear with starlight but there was no moon. The discrepancies in the two stories begin at The junk, says the owner, was hit by the Holstein aft of her after bulk head "just where
orce.
}
་་