Page
Loss OF THE "FUEN ON."
MARINE INSURANCE
-DISPUTE,
THE HONGKONG DAILY PRESS, TUESDAY, JULY 26TH, 1921,
In a case of this sort it is obvious that demonstration and certainty are unattainable, but the Court has to draw an inference from such facts and prob- abilities as point to a conclusion;. See per Buche AC in The Pelayo 87 L.J. K.B.
1047.
T
sinking of the Luza On by a peril insured against were so great that I ought to hold, that as a matter of fact she was so sunk. I thought she might have been but I could. not say that she was, “Equally. I could not say that she was not
cross
पात
SALE OF A MOTOR BOAT.
MESSRS, LAMMERT BROS. SUED.
An action was begun before the Puisne Judge, Mr. J. R. Wood, in the Summary Court, yesterday afternoon, in which. Mr. Le Nagel, merchant, of 39, Morrison Hill Rod, sued Messrs. Lauert Bros., auctioners, of Duddell Street. They claim was for $533, of which $423 was for money received by the deferalants as agents for the plaintiff, and SIUS, money expended by the plantiff, on the care of the motor- claimet 333 for negligence. bont Ler. Alternatively, no plaintiff
NEW TRIAL ORDERED.
1 felt bound therefore to enter judy The Full Court, consisting of Mr.
Now the Luen. On lett Hongkong on
ment for the defendants.
The matter has been now eargued Justice Skinner Turner, of the H.B.M. November lots at 10 or 11 a... Her Supreme Court, Shanghai, the Acting best speed is stated to have been 10 before the Full Court, and 1 have and Chief Justice of Hongkong (Mr. H. H. J. knots her lowest. 7: these figures are the advantage of discussing the facta ex- Rompertz), and the Puise Judge (Mr. given by Captain Wheeler from the deshaustively with my karned brethren, R. Waud), env: its decision yesterday cription of the vessel given him by the The alient features of the case a twe. rating as Wat Tsze, appealed against us as to her actual speed was in consideration that leaving out for the the ease in which Yeung, Kong-yung, builders. No evidence from any other The first is the state of the weather,
am inclined to hold on further careful de decision of galr, Justier Gompertzking & koots as an average speed for moment the question of collision, it is living judgmen for the Yeung Shing Manis bring 630 miles, she would take had an appreciable stretch of stormy Mr. A. H. Crew (of Mears. Hastags
and the distance from Hongkong to.
Mr. Watson (of Messrs. Johnson, Stokes more than probable that the Lurn On ft Master) represented the plaintiff and asurance and Investñient Co., Ltd., in i
action in which the appellant surd about so hours to do the trip, e, she
Water 14 have reached
before she reached Hastings) appearvil tor the defendants. Manila he Insurance Company för 820,000 as aught, to
shelter. November 20th. At midday on Noveni esitit of the loss of the Lurn On.
If other perils are ruled out I think the custody of the boat. It was explain. A preliminary point was raised as to mites, leaving her with 210 miles to go. finding that heavy weather was the cause tinued in ber 19th she would have done shout 300 that a jury would have a difficulty ined that the plaintiff's caretaker had con in the absence of any evidence point of loss.
It is in evidence that tiff consite of the boat but the plain- ring the earlier portion of the surge every enquiry has been made, but that Mesars Lhamert a week before sale,
that delivery was made to during voyage. nothing can be ascertained which throws July, 1040
in it is reasonable to suppose that (always light on, the disappearance of the veel. Tat the lower Court defendants con-assuming she was seaworthy when she cannot-but think that if she had been tended that the onus of proof was on started)" she did grach that position. in collision with another vessel, whether plaintiffs. They had to prove that the And we have evidence of what the that vessel had herself bera sunk by the regel was lost owing to one of the part weather was at that tinic.
alar causes mentioned in the insurance Wheeler was in command of the s.s.transpired, some information would have Captain collision or not, something would have neks, waves, typhoon or wind-and Mr. Fun Sung, a Hustice, Gaupertz upheld this view, and and much larger than the Lum Q: he drew the wrong inferences of fact from well-known vesart here been obtained. Ou the whole 1 think that ave judgment in their favour.
was on the run from Manila to Hong the evidence then before me, and that my kong and left, Manila at 4.20 p.m., on judgment should be set aside. the afternoon of November 17th. At
Mr. C. Alabaster, instructed by dessrs. D'Almada and Sason, appeared or appellant, and Mr. F. C. denkin, in- Aructed by Mr. C, R. Haywort, for the
espondents.
THE PRESIDENT.
THE PUINNE JUDGE,
afr. Lampert has never seen the bout.
Mr. Crew. We have never had delivery.
purchaser at the auction but he had never Mr. Watson, said Mr.Wenton was the taken delivery.
"The Judge: Did he pay?
order was never cashed.
Mr. Watson: Yes, but the compradore's
ཇཱ།
Mr. Crew offered to help" by explain- ing the defence. Before the compradare's Possibly should not have come to the order was sont to be eashed, Messrs. Lum- This is an aqwal from a judgment of midday on Serember 19th he ran into conclusion I did; had the ease now maileert received a statement from the pur he Acting Chief Justice of this Certa gale, he had then done sche 180 miles; been presented to me at the trial,
chaser that the bout was not as warranted elivered on July 9th, 1920. The netione completed his trip in 6 hoars, so for I have come to my present conclusion and they notified Me, Nagel of this.. as brought to reenver $100 Under 4 practical purposes he may be taken to with much hesitation and difficulty but Mr. Wenton got experts' opinion that the oligy of marine insurance issued by have gone at 10 knots an hour. At mid-after the most careful and anxious con- boat was duil
and Insed to take he defendant company on the Euent day, then, he would be about 60 miles sideration i can come to no other. There delivery Mr. Crew submitted that the
stram launch of some 10 tons for a away from the rem On, and his des must be an order for a new trial.
plaintiff should sue the owner, not thei wad from Hongkong, to Manila in eription of the weather is this:-Wind
auctioners. The defendants raised various de force 6 or 1, NE. or. N.N.E. sen rough the judgment appealed from must be set that criticism of the boat was conveyed The Puisne Judge sail Tagree that Mr. Watson said the plaintiff denied nees, but owing to the course taken into high, so had that the Fuen Sungaide.
Court below only one of these was aboured beavily and shipped water doubts as to the circumstaners surround-
I do not say that all to him. Ose so-called "missing" jurt. jied out. The procedure in the Court | And this weather lasted until he was
was the magneto: I had been removed Hy is fully detailed in the judgment a miles from Hongking on the early rest: but it does seem to me that they Plaintiff and the boat was in good run- ing the fate of the Luru te are set at from its place in order to preserve it. the end Acting Chief Justice in morning of "November 20th.
He was is Court; it does not appear clearly given the description of the Luen the and favour of the inference that she was lost and that Messrs. Lammert, had repeatedly give rise to n substantial probability sinning order up to the tinte of the sale, ith his notes of the trial. At the con- condition as to loading, etc., and through stress of weather after encounter promises to fore the purchaser to take usion of the plaintiff's exs counsel be said tant under these circumstances ing conditions of the character observed delivery.
the defendants submitted that there he might possibly have crossed the belt by Captain Wheeler. This constitutes a lying at Causeway Bay under the Bag of All this time the boat was has no case in law for him to answer; of stormy weather at the time prevail: loss jasmuch as, the insuraner being against ing, but it would be particularly dange a low within the perils named in the it was the duty of the auctioneer to give though winds on waves, that is, the auctioneers. Mr. Watson argued that rtain named perils of the seas, the rous. It is right to point out that he policy of insurance on which the appellant delivery. No one else could do so, be Arden ay on the plaintiff to show that was careful to say, both in vxamination has surd.
foss ching within the pulley and that in-chief and in cross-examination, that
cau Mr. Nagel had not been told who had failed to discharge that burden. the weather be expertented was normal
the purchaser was, the duty of the auctioneer to get the He contended it was trial Judge Alid not newpt that posimonsoon weather for that time of years
order enshed. on, but held that the evidence called anyone would expect it there at that
had been lost, and had only been found He understood the order y the plaintiff was not enough to lead time.
that day. The way the whole thing had in to the clear conclusion that the luss is ro nised, and he, therefore, enter
to negligence. been mismanaged amounted, he alleged, judgment for the defendants. Thus be other issues raised on the pleadings inve not been tried.
There the evidence ended, and I think the true inference to be drawn,, from it that the Luen On did encounter for some time at all events the gale describ ed by Captain Wheeler, and I find. It is clear that the interpretation of The position then is that, by law she he poley in question is raised; is it is presumed to have been lost owing ne against gertain named perils 7.or
tah peril of the seas; and in fact she s it a more general one against perils encounter when on the voyage n gale f the seas! Mr. Alabaster for the apparticularly dangerous to her. It soms to me that this strongly points to the allant sought to the terms of 2
Joss being a loss by foundering caused by the action of wind and waves; and
Eventually
you may get a vote Why Not Now? Help on the good work by
SIGNING THE PETITION.
other policies for the purpose of arriv. ing at the meaning of this one. I have no doubt that he cannot do so. '‚I accept the position that these other policies were issued at the same time and through- the same broker as the one under dís cussion: they are upon the same vessel and for the same voyage, but they are in different companies and in somewhat different terins. What in fact happened
REFUNDING COSTS PAID
The President: There will be an order for a new trial, appellants to have the costs of these procedings and the cost of the original proceedings to rest on the result of the new trial.
Mr. Alabaster pointed out that the appellants had already paid the taxed costs of the other side in the origiasi trial. The order for the payment of thore costs was part of the judgment which had been set aside and the appellant was entitled, counsel submitted, to have the money refunded
as the result of the appeal.
the new trial would take place early next Mr. Jenkin said thet as is was boned
only have a week to wait for his money werk the appellant, if successful, would
|
WA9.
was an understanding between him and Mr. Nagel, giving evidence, said there Messrs Lanimert that the boat turned over to the auctioneers and the latter put their flag up on it. He did not withdraw his men from the boat. The actionerrs informed him of the safe
that for eight months after the sale he in, cross-examination, the plaintiff said but not of the name of the purchaser.
mence legal proceedings against the was pressing Messrs. Laminert to "com-
it being, as I have said, for me in an any case of Justice (to Mr. Ai parchaser. He admitted Mr. Lammerti
case where demonstration and certainty are unattainable, to draw my inference from such facts as point to a conclu- sion, I hold that on the evidence, as it stood the right conclusion to draw was that the loss did occur owing to a peril insured against. It follows, therefore, that the learned Judge was wrong in the view he took. I am assuming for. the purposes of this judgment that the vessel was Menworthy. I think the case must go back for a new trial..
THE ACTING "CHIEF JUSTICE.
baster): What do these costs amount to?,
The acting
was constantly pressing Wenton to take 31. Alabaster: About 84,000.
delivery of the bout. The plaintiff add- would be made for the refunding of the Messrs. Lammert, in the intervals of The President intimated that an ordered that he complained forcibly that costs within fourteen days.
their client, should have cashed the compradore's order when it came in, and. in the second place, if a min bought a thing he should be compelled to take it. I believe that is the law in Eng- land,
said Mr. Nagel, "as it is in my Jown country, America."
MISDIRECTED INGENUITY.
SHAUKIWAN PAWNBROKERS
SWINDLED.
Mr. Crew urged that plaintiff's case)
his judgment said:
Mr. Justice Gompertz, in the course of A pawnbroker fronr Shaukiwau related wis based on an error. He had a griev to 31. Orme, at the Magistracy, yester; Mr. Jenkin submitted that in law there day afternoon, that a youth, before the admittedly, but not against diessts, Court on a charge of fraud, came to him Lammert: against the purchase. There was no case for the defendants to answer, as the plaintiff had not proved that loss pawn some beads which, he said were was no law by which an auctioneer could of the ship was caused by a peril insured gold. Examination under a magnifying be compelled, unless indemnifier, to she ugainst.
glass illustrated the, proverb, all is not party who bought from him. gold that glitters the beads proved to happened was perfectly clear. Alr. be tiny brass coils with a thin coating of Wenton bought without inspection. He gold. The youth said he made them him- purchased on the strength as the state- self; the pawibroker took him to the ment in the advertisment that the police station.
engine was unmounted but in good work-
"Mr. Drummond urged that once he had was that the total insurable value of proved facts raising a presumption of loss $45,000 was divided between 3 con by perils of the set, the onus shifted, and panies; but fail to see how it can defendants had to show that the loss be held that the wording of one policy occurred by some peril not insured can be used to help the interpretation against. My own view of the law was of another. The policy must be con- follows.-1 had no doubt that the true strued as it stands; and in my view it construction of this contract was that it ja a policy against loss by sinking due was an insurance only against particular to certain specified perils of the seas: specific perils. The plaintiff had then to in effect, due to stranding or the action prove a loss by the perils insured against of winds or wares. The learned trial if he failed to establish this with reason Judge was therefore, right in putting able certainty, he had not made out his the burden of proof as he did it lay c
Now my own note of the cure is some- on the plaintiff to show that the loss what meagre and there is no shorthand occur owing to one of the "named
What in fact decided was as
nole..
sured
What
The police, taking up the story, suiding order. Mr. Lainnert would say that that while the inatter was being investi-one bid of $10 by a Chinese was made gated another pawnbreker enme in with at the auction. He then notified the
story of beads found to be worthless public the reserve price of $400 and Me after money had been advanced upon Wenton, Father foolsibly purchased it. them and identified the defendant, as the When he viewed his prize it did not person who had pawned them. More come up to expectations and from that body were found in the defendant's moment he was out to get away fro lodgings.
The youth's misdirected ingenuity was Wenton to take delivery and eventually contract. Mr. Lammert pressed rewarded with a sentence of six weeks imprisonment with hard labour: he will it up for sale again Messrs. Lant
inert, received po 'instructions from, the
DAN
perils and the question for that one An auctioneer at Present is whether he succeded in doing that. See The Eu Plaintif to show a loss, by the perils in twist oakum into new and profitable was only an agent. terpeter Hoplat! Jy s T.L. 640 hold and did not hold that, is a matter
against. I was not prepared to shapes. Interaman per Bailhache J.). 88 L of law, there was no case to answer,
Bp Britain Steamship Ca. nothing in short to be deft to a jury. The King 1921 A.O. 93.
In my opinion on the case as it stood there was in law i eise: not a strong on, but something that required to be met. As a judge of fact, however, exercising
·
A STREET INCIDENT. POLICE AND SAILORS AT VARIANCE.
Now appeals to this Court are by way of re-hearing and in the case of a trial by a Judge without a jury, where there 18 DO real conflict of evidence, the ap-the functions of a jury and availing my pellate tribunal is in the same position self of the ordinary knowledge of a lay: "Williamran and
man with some small experience of local
to judge of the facts and the true infer
Magistracy, yesterday Seane David Before Mr. R. E, Lindsell, at the
... Farmeli were charged with a
O'Donnell. of the
Constable Hooper.
ence to be drawn from them as theaters I found myself in this positionsaulting Gaol Warder Leeson and Police Court below"
J were unable to find as a matter of fact that the vessel was lost by a peril insured
a
In reply to The Judge, Mr Watson said the plaintiff would base his claim on the ground of negligence in not cash- ing the compradores order and, in fall ing to sue the purchaser and compet hila to take delivery..
except for cash; True, they received n auctioneer, was not to give delivery My Crew replied that the duty of an
letter, was received complauding that compradore's order, but within 12 hours the engine was not in running order.
never in a position to hand over because taking a compradore's order. They were There was not the slightest negligence in
they never had possession the advertisement amounted to guar
The Judge intimated that in his view. antre and that the contract was not an enforcible one.
I turn then to the evidence in the against. I was in doubt as to whethering Mestá Brewer & Co.'s shop in The complainants said they were pass efst as presented by the plaintiff. The she was of instances it seemed to me Queen's Road, on Sunday night, when Lud Optarted on her voyage from In thega Hongkong Manila on November 16th, useless' to call on the defendants for their they mer the defendants who had just 2017: she returned from a previous evidence and I entered judgment for left the Astor House Hotel. Without start je copanduener of bad weather and them. Whether I draw the right infer, y provocation, first defendant spoke to had taken on more coal as fuel and as ences of fact from the evidence before me, Warder Leeson in obscens language. ballatie bas never been heard of is, of course, a question for this Court Leeson's remonstrance was followed by. stuce, though all possible eriquiries laye I will say at once that in my opinion
The case was adjourned for questions of scrap, been nude she was insured in the de- the only peril, not covered by the policy Lerson was hit in the face and kicked gone into; plaintiff to pay the costs of in the course of which warranty and enforcible contract to" be fendant company for the amount of here which need be seriously taken into in the chest by Williamson. Pe. The adjournment. $50,000 again sinking caused by run- Account is that of collision. It was Hooper, who closed with O'Donnell, bad ning on rock or reefs, or by damage | argued that in case of collision there is the better of his assailant and chased. due to windsto wyes. The fact that usually a report or other evidenen, avail him to Jardine's verandah, where de- she haur never heard of raises the able to prove the fact.. But even a lay fendant was intercepted by
CARGO JUNK WRECK. well known presumption of Insurance with experience of the local waters. Belcher. Williamson was caught on the DRIVEN ASHORE IN THE STORM. Law that she fanndred at sea: in other knows that on the coast and some way Praya by P.-c. Savy. The prosecution words that she was lost owing to
out to sea large fleets of native craft are alleged that defendants were under the end, large cargo junk was wrecked During the stormy weather of the weck peril of theseus. This presumption has encountered by day and by night. They influence of drink.
between Shanmi and Hongkong and two
P.-C.
been stated gene to
to exist even in war frequently navigate without lights. Defendants denied they were the ag lives were lost. The master of the steam time: sou lack the case any of them are from Macto or from of the Audit: 110 To show ports in China. The probability of their res; in fact they were provoked by launch Wo Leang came to the that she was last date of the specibed putting into Hongkong to report a colli- one of the complainants, who passed the of the junk and was towing it toistance perila the palm called Captain Sian in which the other vessel had sunk! first rennurk, which they said was in kong. At Fa Tau Chat, the towing rope | Wheeler to speak the weather at that with all hands would seem to me as to have taken a few drinks. A
judge of fact somewhat small.
ime and to give his own experience) when passing through the same area and
I enquired of plaintiff's counsel if he to-show that the probability is that, the hat none was tendered.
was calling any evidence on this point, storm which he encountered was the real
I found myself in this position. I was cause of the loss of the Zuca On.
unable to say that the probabilities of the
bad language Complainants appeared snapped and the junk was driven ashore, where it was wrecked. The crew of 26 Mr. Lindsell said he believed defend men was thrown overboard, but the Wo ants had received some provocation, Herung succeeded in saving fifteen men, bound them over in personal bonds of whom they conveyed to the Water. Police $100 each to be a good behaviour for six Station. Two ate known, to have been; months.
drowned.
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