HONGKONG DAILY PRESS
FREIGHT ON SHIPMENT
OF MOTOR CAR
Summary Court Judgment Against Shipping Firm
Judgment was given yesterday, in the Summary Court, by Mr. Justice B. E. Lindsell, in favour of the Wai Loong Hong, of No. 148, Wing Lok Street, who claimed the return of $120 from the Jebshun Ship- ping Co. of No. 70, Connaught Road West, on the ground that the sum was paid to defendants as back freight on shipment of a motor car and which should not have been charged.
The claim was a sequel to the decision not to dis-. charge the motor car shipped by the s.s. Marie Moller from Hongkong to Swatow, on account of the hostil- ities, at the Chinese port, and the subsequent carriage of the cargo back to the Colony.
A
D.O.R. ACT
APPLIED TO COLONY
İNA
GENERAL
HK. REGISTERED SHIPS TRANSFER
AND MORTGAGE REGULATIONS
A "Government Gazette Extra- ordinary”... lamed
Hongkong The "Hongkong Government yesterday afternoon, notifies that
Gazette Extraordmary," published
the provisions of the Emergency by authority yesterday contains Fowers (Defence) Act, which was the following notifications:- passed by: the Imperial Parliament
in London last Thursday, have been applied to Hongkong.
This Act in effect, is the old wartime Ɖ:"0. R. A. (Defence of the Realm Act),
The new Act permits, by per- mission of Parliament, the making of any Regulations necessary : or expedient for securing public sate- ty, the defence of the realm. the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged.
Hongkong Goverment
The
may
"HONGKONG
In exercise of the powers con- ferred by the Emergency Powers (Colonial Detence) Order in Coun- cfl, 1939, the Governor makes the following regulations:- Hongkong registered ships transfer
ог
and mortgage regulations I. It shall be unlawful, except- ing under the authority of the Board of Trade, to transfer mortgage, or to tamsfer any mort- gage of, any British ship reg's- tered in the Colony or any share Mr. F. H. Loseby appeared back before reaching her destina-
in such a British sh'p; and if any; for the plaintiffs, and Mr. M. tion and the consignee of the lorry
person purports to effect any M. Watson was for the never had an opportunity of tak-
delivery, wheress in the case 1.-make provision for the appre-transfer or mortgage which is un- defence.
of the Argos it was the nature of hension, trial and punishment of lawful by virtue of this paragraph, STATEMENT OF FACTS The agreed statement of facts the cargo that prevented its dispersons offending against the Re- then, in addition to the transfer or mortgage being void, he shall charge in the Arst instance and gulations, and for the detention was as follows:
whent means of discharging it of persons "whose detention be guilty of an offence agains: this regulation punishable as pro- were later found the consignees appears necessary;
vided in regulation 84 published in did have the opportunity, of which they failed to avail themselves, of
Notification No. 703 of August 26. 1939. taking delivery.
1. The enclosed copy B of Lading is a correct copy of the Bill of Lading under which the goods were shipped.
44
2 That the vessel when off the entrance to the Port of Swatow
was warned, by a Japanese naval launch that it was dangerous to proceed into the harbour and that at that time hostilities bad broken out or were about to break out in. and in the neighbourhood of Swatow.
3. That the cargo in question was duly returned to the Port of shipment .e. Hongkong, where delivery was taken by the Plain- tiffs, the holders of the Bill of Lading
4. That the port of discharge in this case, Le. Swatow, was unsafeļ by reason of war or disturbances and that the Master of the vessel was properly of the opinion that this was the case.
The circumstances of the two
Scrutton's
2--take possession or control, on behalf of His Majesty, of any property or undertaking:
3-acquire, on behalf of His Majesty, of any property other than land:
cases are thus clearly distinguish able and were it not for the state
4-amend and enactment, sus- ❘ ment of the law in Charter Parties and Ellis of Lad-pend the operation of any en- ing (13th Edn.) on pages 394-5 I actment, or apply any enactment should have had no hesitation in with or without modification: holding that the principles laid down. In the Argos case have no application here.
What Scrutton says (article 185) is this: "When the ship " is either ready to deliver cargo at the port of destination or is prevented by excepted perils 'from reaching such port (p). but the merchant does not take delivery or forward in- structions within reasonable time, the master x x has, the power" and the duty to deal "with the cargo in the owners. interest and at the owners ex- pense. He may land and ware- house it or, if that is imprac- ticable, inay carry it in his ship xx and can charge the owner, with remuneratain for and expenses of such carriage under the rame of "back freight ***..
5. That if the ship had been able to enter the Port of Swatow and to deliver the cargo at Swatow she would then have been avail- able and would, as customary, have taken on other cargo had such cargo been available from Swatow to Hongkong and thereby earned freight thereon but that the ship did not enter the Port of Swatow by reason of the fact that, the Master deemed the Port to be un-and in footnote (p)"semble, that, safe for the ship and that the in case the ship is prevented by danger to the ship was not in-excepted perils from reaching her port of destination, the ship-owner 6. That the amount demanded can recover expenses and back by the Defendants in respect of the freight incurred in the interest of carriage of cargo back to Hong-the cargo owner; vide Notara v kong would in ordinary circum- Henderson (1870) L.R.5.QB.346 stances be the correct freight pay- and articles 101, 103."
I have carefully read the report able from the Port of Swatow to Hongkong atid
the
of the case of Notara v. Henderson was amount as the freight which had and can find nothing therein to been paid by the Plaintiffs, on support the view expressed by shipping, in respect of the carriage Scrutton, and it is difficult to ap- of the goods to the Port of Swatow.preciate bow a situation could arise
CLAIM MUST SUCCEÈD The Pulsne Judge sald:—
"creased by the cargo in question.
same
In my judgment this claim must succeed. The facts are simple and agreed and I need not recapitulate
them.
in which on the one hand the ship.
time."
5. enter or search any premises. The imposition of conscription is not empowered.
Wide powers are given to the Treasury.
Provision is made for the con- trol of shipping,” aircraft, etc.
Court procedure may be altered. The Act applies throughout the British Empire, excepting the Do- Kainions.
YOUNG GIRL MALTREATED
2 Notwithstanding anything to section 53 of the Merchant Ship- ping Act, 1894, In application made (whether before or after the coming into force of this regula tion) for the transfer of the re- gistry of a British ship registered" In the Colony shall not be granted excepting with the approval of the Board of Trade.
3. Nothing in section 48 of the Merchant Shipping Act, 1894, AS amended by section $3 of the Mer- chant Shipping Act, 1908, shall apply in relation to any altern- tions of a British ship registered under the arst mentioned Act which, in pursuance of directions given by or on behalf of the Board of Trade, are made on any oca- alon for the purposes only, of pro- viding in the ship additional space, or accommodation for cargo, stores; passengers or crew, pro- vided that such particular altera- tions as may be prescribed by the Board of Trade are. within such time after the completion of the alterations as may be so prescrib- Sentence Of six weeks' hard ed, indorsed on the ship's certia- labour, without the option of a cate of registry by a registrar of fine, was imposed on Chiu Siu-British ships. hmg. 25. a married woman, by It is hereby notined for gañeral Mr. T. J. Houston at the Central information that regulations sim1- Court yesterday for 1-treating a lar to the above and applicable to young girl named Wong Ngan-all British ships. other than yang aged 10.
Cane Marks Found
All Over Body
Inspector H. W. Fraser, of the 6. C. A. said that the girl was found lottering outside the Bhankiwan Police Station. She was taken in to the station where she com- blained that she had been beaten by defendant. Cane marks were found all over her body.
Dominion ahlps, have been enacted" in the United Kingdom under the authority of the Emergency Powers (Defence) Act.
UNEMPLOYED YOUTH CAUGHT IN ACT
An unemployed youth, Ip Yuen, appeared before Mr. R. A. D. Forrest at the Central Court yes- terday. charged with theft of a Jade bangle from a child and, alternatively, with receiving stolen property.
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FRENCH LINER STOPPED AT SAIGON
The Compagnie des Messageries Maritimes advises that according to telegraphic information, the m.v. Jean Laborde has been stop- ped in Saigon until further notice by the French Military Authorities. Any new information received in connection with the my. Jean Laborde will be brought to the pubife's notice immediately.
did not reach her port of destina- tion and on the other the shipper" word "undelivered" includes any did not "take delivery or forward and every case of non-delivery instructions within a reasonable whether on account of a
con signee's default or by reason of an DIFFERENT STATEMENT
excepted peril, and argued that
It was alleged that defendant since non-delivery here was occa-was seen by a district watchman sioned by one of the perils excepted while seizing the Jade bangle by conditions 9 and/or 16 printed He was arrested and questioned, on the back of the hill of lading and is said to have admitted that the defendants were liable for back he had stolen the ornament from freight.
a child carried on a mother's back
Ip plead not guilty and dented| Imperial" Airways: the allegation. by
The defence (if I appreciate it aright) was two-fold. First Mr. Carver's Carriage by Sea, 6th Watson submitted that, leaving the Edn. at p.108, gives a different bil of lading altogether out of ac-statement of the Law: "The cargo cout, the case was covered by owner is only bound to repay ex- the general principle laid down by penses which have been incurred the Privy Council in "Cargo ex specially for the benent of the Argos," (LE.S.P.C.A.134). In that goods. Expenditure incurred on case the appellant had shipped) behalf of the adventure generally, casks of petroleum by the respon- as for example, in putting into a dents' as. Argos for carriage from port of refuge, can only be charged London to Havre. Upon the ship's to him as a matter of general arrival at Havre the Authorities of average contribution," and goes on the port requested the captain to to quote the Argos case in support take her away in consequence of of "this more limited view. the petroleum being on board; Careful consideration has driven thereupon he went to neighbour-me to the conclusion that the ing ports but was not allowed to wideness of the statement in Berut- stay there. Upon returning to ton is not supported by authority Havre he tinloaded his general and that the principle enunciated cargo and discharged the casks of by the Judicial Committee "in the petroleum Into a lighter where Argos cargo case amounts to no, they remained for four days at the more than this, that where the disposal of the consignees. No bill consignee of cargo has had the of lading having been presented opportunity of taking delivery at and no application made to take the port of destination but has. delivery, the captain then reship- failed to do so, and the cargo can- ped the casks and brought them not be put ashore, the captain of back to London"
the ship is entitled, in the absence ENTITLED TO BACK FREIGHT of instructions, to put himself in On the ship-owners sucing the shoes of the cargo "owner and for (inter alia) back freight to deal with the cargo in such a and expenses, it was held that way as in his judgment, prudently where cargo has reached Sta exercised, appears to be in the best port of destination and no ap-
interests of the owner, and in such plication for delivery is made,circumstances to charge him with the captain may land and all expenses properly incurred warehouse it at the expense of whether by way of back freight on the shipper and where that is
otherwise, forbidden by the port authorl- tles, he may in the absence of “advices take it to such a place as in his judgment is most convenient for the shipper and may charge him with all ex- penses property incurred, and that the ship-owners therefore entitled freight and expenses which they claimed:
Were
back
I can see no true parallel be
This is the very position which the special condition chopped on the face of the bill of lading in the present case is obviously intended to cover. That condition reads as follows:-
Consignées must take de yery promptly ex
unclaimed or undeli
Hot.
be returned to "shipment at shipper's risk, and- expense Double freightage to
shipper supratted as his of defence that the
that case and this Here It the ship herself that was com
„by an excepted peril to tawai second
NOT IN AGREEMENT With this submission I am not in agreement. I am satisfied that the special condition cannot be read to mean more than that. I at the port of destination the con- signee does not claim the cargo, or refuses or falls to take delivery
thereof within a reasonable time, then the cargo will be returned at the shipper's risk and expense, such expense including full back freight, to the port of shipment,
Before this condition can take effect the consignee must haye had the opportunity of taking delivery, and its inner- tion on the face of the bill of lading is evidence of lis special and" "unusual nature, and evi- dence that it is not intended to apply generally whenever the existence of in excepted peril has been the cause of - non-delivery.
The case was remanded for 24 hours for the production of wit-
nesses.
CROWN LAND SALE
Two lots were sold at the Crown Land Sales held at the P. W. D. yesterday.
Lot No. 1, known as Inland Lot No. 5548, aktuated at the Junction of Bing Woo Road and Trui Man Street, éomprising an area of 4,500 square feet, was sold to Mr. Lok Tuck Poh, c/o Mr. J. B. Gibson, for $14,000. The upset price being $11,250.
Lot No. 2, town as Inland Lot No. 5579, situated at Bing. Woo Road, with an area of 4,500,- was sold to the above purchaser” for $11,150 The upset price being $11.250.
AIRPORT NEWS
NORTHBOUND Thursday: Bangkok, Hanoi.!
Hongkong,
Delphinus p.m.
SOUTHBOUND Friday: Hanoi, Bangkok,
Dardanus, Denebois-7 and 7.30
de.&.m...
Air France:
NORTHBOUND Wednesday: "France, Hanoi,
Hongkong..
Bervice-Boon,
-SOUTHBOUND).
Manila,
Wednesday: Hanoi. France. Bervice -1,30 pm (zame day). Pan American Airways:
EASTBOUND" Thursday: UNSAN
Hongkong. Philippine Clipper-2 p.m.
WESTBOUND Friday: Maniis, USA. Philippine Clipper 8.30 am. Nate: Due to unfavourable wea ther conditions between Guam and Manila, the China Clipper which was due last week in Hongkong. has been delayed.
urn to Ban that the Clipper will
Nor again in "my judgment can the defendants rely on either 9 or 16 of the printed conditions. It is DR. SOONG TO common ground that the ship
STAY HERE turned back owing to the existence of an excepted peril, namely the Reports circulated locally to the unsafe condition of the port of effect that Dr. Ty, Soong is soon Swatow, and that in the circum- to leave for Manila in connexion Francisco from Guam, The Philip stances the captain was justined with the affairs of the Bank of pine Culpper, which is due t in landing the lorry at the nearest Communications are incorrect. The Hongkong this Wednesday, has safe or convenient port, to wit gen Hongkong, but in such a case all Phi that the said conditions, as I read
who is leaving for the is Dr. a. T. Wang Chinese Ambassador to
been delayed twenty-four hours in Wake Island due to weather and is reported to be arriving in the Colony on Thursday evening.
FERING PRACTICE
Chr
Bow
them, allow as chargeable to the the United States.
of
shipper in the com
or landing the lorr
For these reason that the Plainters
succeed in their claim for the re- turn of the back freight they paid under protest and them judgment with costs.
Light gun fring practice wil carried out between the hours
Em, and 2. p.m. to-day Firing Areg "A" will be a 100
Tel. 28151.
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