206
SUPREME COURT.
Monday, 30th August.
́ ́IN CRIMINAL JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR F. PIGGOTT).
EXTENSIVE THEFT OF OPIUM. A special session was held for the trial of the three men and a woman concerned in the theft of a considerable quantity of opium. The three men were charged with stealing from the ss: Kutaang on the 13th July 164 balls of Benares opium, the property of Messrs. Jardine, Matheson & Co., and the woman was charged with receiving it well knowing in to have been stolen. The Acting Attorney General (Sir Henry Berkeley, K. C.), instructed by Mr. Dennys, who appeared for the Crown, said he would not offer any evidence against the third defendant and that his friend Mr. Alabaster would conduct. the prosecution in his absence. Mr. Alabaster was instructed by Mr. Shenton, of Messrs. Deacon, Looker and Deacon. The first and fourth defendants (the latter being the woman) were defended by Mr. Eldon Potter, instructed by Mr. F. X. d'Almada e Castro, the second defendant (the quartermaster) being un- defended.
The jury was empanelled as follows: Messrs. J. C. Gow, A. Krantler, E. Jacobs. J. P. Douglas, W. M. Humphreys. P. Davidson and R. L. Brown.
The facts were outlined by Mr. Alabaster, from which it appeared that seven men approach- ed the Kutsang about midnight, in a sampan and on getting close to the steamer the first defendant and three others went up the gang- way. The second defendant, the quartermaster of the steamer, met them on the gangway and received money from the first prisoner. after which they passed on and entered the hold. One of the three men remaining in the sampan climbed the rigging and in that position received the bags of opium which were handed him through the cargo port. Finally the four men returned to the sampan and were rowed, off. Shortly afterwards the quartermaster gave the alarm to the officer on duty that "thief man have come.". He pointed to three junks as having been concerned, but suspi. cion fell upon him and on the arrival of the police he was taken into custody. Subsequently the first prisoner was arrested and then followed the recovery of the opium in the woman prisoner's lighter, whence it had been transferred from the sampan, and the arrest of the others.
Evidence was called and the hearing adjourned.
The case was continued in which two men and a woman stood charged with being concerned in the theft of 164 balls of opium, valued at $4.000, from the s.s. Kutsang.
The Chief Justice said it had occurred to him that a great deal must turn on whether it was possible to prise open the hatches of the steamer, and he had therefore arranged that the jury should go on board and make an inspection with the assistance of the officers of the vessel.
It was
Mr. Potter said he had a point to raise which, if upheld, might save the trouble of visiting the ship. It was that there had been no identifica- tion of the alleged stolen property. necessary when the charge was larceny that it should be proved that the goods, which were the subject of the charge were in fact in the ship at the time the larceny was committed.
His Lordship said that was a point for his consideration later.
The jury then left the Court and proceeded by launch to the steamer.
When the jury returned,
Mr. Potter dealt with the question of identification of the opium and argued that there was no evidence of proof that the opium found on the cargo boat was ever on board the Kutsang. There being no such evidence, the prosecution must fail. It must be proved that the opium came off the ship. It might be that somebody from Calcutta saw it taken from the ship.
His Lordship-Then there would never be a thief imprisoned. There is no law especially applicable to larceny on board ship.
THE HONGKONG WEEKLY PRESS AND
Mr. Potter-There is a special provision and special punishment.
His Lordship Then all the thief has to do is to drop it overboard.
Mr. Potter-If he is seen dropping it over- board that might have a bearing on the matter. His Lordship-Your contention comes to this: that there being a special provision in the law to protect shipowners from thefts on board ship, it is so drafted that it makes it impossible to prove a theft.
Mr. Potter-Not at all. There is no witness who could prove that the opium found in the carge boat was even in the Autsang. I admit it is only a technical point, but technical points will, as your Lordship knows, overthrow an indictment. It is an accepted proposition of law that where the evidence against any prisoner is only the evidence of an accomplice or accom-- plices, the learned judge presiding would withdraw the case.
His Lordship-Unless it is corroborated. Mr Potter Yes, my submission is that it is not corroborated.
T
The first prisoner was found guilty and sentenced to five years' imprisonment with hard labour, and the second (the quartermaster) was sentenced to seven years' hard labour, while the woman was discharged.
[September 4, 1909
of
to conclude a case, such as the present, where the question is the fact that goods have touched land temporarily in the process of landing somewhere else a landing within the meaning of the policy? Lord Justice Bowen was considering the question of transhipment, something which happened before the landing; the land, so to speak, lay in the distance beyond the transhipment; and a broad general proposi- tion sufficed. But when we get to the land, other questions may arise not foreseen which require special consideration and which cannot be concluded by a general proposition in the absence of such consideration. And this is I agree necessitated by the facts of this case. that "landing" means "landing," but Strong v. Natally is an authority for saying that the mean what they say, and words safely landed if the goods have to be landed in a lighter the. risk covers the transit to the shore in the lighter in normal circumstances."Risk of craft" is a clause introduced since the day when the early cases were decided, and if it is inserted in the policy makes the matter still more plain. But His Lordship-I think there is sufficientit. introduces some special considerations of its own. I am of opinion that insurers Peorroboration.
bound to know the conditions are the trade which they insure. The fact that Messrs. Butterfield and Swire do not take oil into their godown seems to me to be irrelevant ; a consignee is not bound to put his goods into the nearest godown: the fact that some well known oil godowns were across the water must or should have been known to this insurance company, and I think that even without this clause were it necessary so to decide, but of the certainly with it, the intention
that in the pro- INSURANCE CLAIM FOR OIL.
parties clearly was Judgment was given in the action in which cess of landing lighters would be used: the Tung San Wo firm of Shanghai claimed further, that "landing" means "putting the from the Po On Marine Insurance and Godown goods upon the land or upon that which is its Company, Limited, of Wing Lok Street, the equivalent by the custom of the port," "where, suni of 7,000 taels said to be due on 350 in the clear intention of the parties, it was packages of ground nut oil. Mr. M. W. Slade, intended that the goods insured should be instructed by Mr. R. A. Harding, appeared for landed, and so the voyage terminated. If, the defendants were therefore, according to the practice of the the plaintiffs, while
"which is a much more suitable ex- represented by Sir Henry Berkeley, K. C., and wharf, Mr. D McNeill, who were instructed by Mr.pression in the circumstances than "the custom A. Holborow (of Messrs. Deacon, Looker, and of the port,” it is necessary, in order to get to the lighter, to tranship overwharf, then it is Deacon).
not landing but an incident of the voyage, is not concluded until the craft which has completed it by taking the goods to shore. The interference of the con- the signee at the scales does not bring the case within the other doctrine, which deals. with the termination of the voyage by the consignee's own action, which I shall refer to presently.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
His Lordship in giving judgment said-The questions raised in this case take up the points which were not fully gone into in my judgment in Hip On Insurance Company v. Hang On Insurance Company. The goods were insured on board the s.s. Shao Hsing from Shanghai to the port of Canton. The policy contained a “risk of craft" clause. The ship was moored to Messrs. Butterfield and Swire's pier-wharf opposite their godowns at Honam. The goods, oil in baskets, were put into lighters, some on the water side of the ship, some across the wharf into lighters. In each case the oil was weighed by or on behalf of the consignee and the lighters were hired by the consignee. The usual Custom House formalities were ful, filled either on the ship or on the wharf with a day's delay on account of the Emperor's birth- day, though the unloading of the cargo was continued during that day. The cargo consisted of 550. baskets of oil, and 200 of these were sold to a customer out of the lighters. On these facts the question arises whether the risk of craft" clause in the, policy cover the oil so landed. I do not think that it appears very clearly whether all the 350 baskets were landed overwharf, but in the view that I take of the low this is immaterial, and I shall assume that it was,
Was
case
On behalf of the defendants it was contended that the overwharf transhipment into lighters constituted a landing, and Lord Justice Bowen's dictum in Houlder v. Merchants' Marine Insurance Company was relied on. He said, "Landing goods means putting them upon the land, or upon that which by the custom of the port is its equivalent. I have no doubt that by "equivalent
But the meant wharf or pontoon.
was whether the
"risk of craft" there clause covered the goods in the lighters during transhipment to another vessel, and the use of the words "safely landed" in connection with that clanse meant clearly that the craft covered by the risk must be craft used for the purpose of landing and not craft used for the purpose of transhipment. The diotum illustrates this argument; but in view of the circumstances in which it was used it cannot be stretched so as
|
Clearly, weighing the baskets as they went into the lighter did not terminate the voyage. I am fully alive to the fact that the law, as I am laying it down, might be somewhat severely tested if a typhoon or tidal wave were to arise suddenly and destroy the goods while they were in process of transhipment on the wharf itself. But should such a case arise I am not afraid that the logic of the proposition, as I have enunciated it, would be equal to the task of deciding the case. A small point may be It was suggested that while here referred to. Messrs. Butterfield and Swire's wharves were in the port of Canton, the oil godowns were not. It could not be put higher than a sug- gestion. I am satisfied that what lies in or about the port is included in the port if shipping or goods in lighters usually go there, and that in this instance what was done was fully covered by the intention of the parties. I now come to the use of lighters, and I do not think the law is very clearly stated in Arnould. I shall first deal with the authorities. Sparrow v. Carruthers decides that if the consignee sends his own lighters for the goods there is an end of the voyage, but that it was otherwise if the goods were sent on shore by the ship's boats, or presumably the shipowners' lighters. I notice a possible anomaly which might arise, supposing the ship itself to have been chartered by the consignee, which does of itself show that the law was not quite clearly estab lished then. But this case was doubted in Hurry v. Royal Exchange Co., though it appears to have been set up again in strong v. Natally. But in Hurry's case distinction was drawn bet ween a public and a private lighter. The public lighters in question were described by Justice Rooke as being "publicly registered, in short, that sort of lighter which is equally known to the
Page 10Page 11