1912-04-20 — Page 2

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ESTEMATIKY

A. S. WATSON & CO., LTD.,

ESTABLISHED A.D. 1841,

THE HONGKONG DAILY PRES”, SATURDAY, APRIL 20TH, 1912.

all probability there will be enough male Japanese and Chinese born in Hawaii, come of age, to constitute a clear majority of the electorate. It is scarcely to be expected, how- ever, that the American Government will be content to allow the political, as well as the industrial control of the islands to be gained

CHIEF JUSTICE OF HONGKONG.

·APPOINTMENT OF FER HÖN. MA, DEES

DAVIES. K.C.

We are officially informed that H.M.. The King has approved the appointment of Hon. Mr. William Rees Davies, K.C.,

to be Chief Justice of Hongkong on the retirement of Sir Francis T. Piggott, Kt., with effect from 1st May next.

Mr. William Rees Davies was born in

by the Asiatic population, and so it is argued that unless an immediate change is made in the policy of the administration which has encouraged this development “Hawaii will be deprived of her charter and 1863 and is the oldest son of the late status as a territory, and reduced to a Com-William Davies who was for many years. mission Government, and 75,000 genuine M.P. for Pembrokeshire and a Justice of the Peace and Deputy Lieutenant for American citizens deprived of the vote and that County. He was Educated at Eton WINE & SPIRIT MERCHANTS, reduced to a status of political vagrancy on

the plea that only in that way can Asiatic and Trinity Hall, Cambridge where he out committing any act of discrimination of in the Chambers in the Temple of Mr. William Graham, then standing counsel which Japan can complain." The complaint for the Times newspaper and one of the made against the administration is that most prominent junior barristers on the Americans are not sacouraged to settle in Common Law Side at that time, and he the islands. Many, since aunexation, have was called to the bar at the Inner Temple gone to the islands with the intention of in 1887. He joined the South Wales engaging in industrial disputes, but, find- Circuit, and for some years he was

BRANDY

Our Brandies fre

SUPREME COURT.

Friday, April 10th.

IN SUMMARY JURISDICTION.

BEFORE MA. H. H. J. GOMPESTE (PUISNE JUDGE).

SHIPPING TEST CASE.

Section 188 of the Act

political control be broken in Hawaii, with. I took the B.A. degree in 1885. He studied his passage money from London to Hong agreements may be made for a voyage, advance notes in this Act. Then came

GUARANTEED ing that their prosperity would depend engaged as Counsel for the Treasury in

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important criminal cases on that Circuit, In 1892 on the retirement of his father. Mr. Rees Davies was returned to Parlia mest for his native county of Pembroka by a majority of eleven hundred votes after a stiffly contested election, his opponent being Sir Charles Philipps, who

In 1888 Mr.

(Signed) H. P. ROBINSON. There are alternative claims for money

lent and for money paid at the defen-

dant's request.

quently took part in debate, bo acted, in conjunction with Mr. Lewis Harcourt the present Secretary of State for the Colonies, as Private Secretary to the late Sir William Harcourt, who from 1892 to 1895 was Chancellor of the Exchequer and ancceeded Mr. Gladstone as leader of the House of Commons when Lord Rosebery became Prime Minister. Rees Davies was appointed, on the recone mondation of Mr: Chamberlain, Attorney General of the Bahama Islands, where he enjoyed "a large private practice and acted for a time as Chief Justice In 1902 he was promoted, on the recom- mendation of Mr. Lyttleton, to be King's Advocate in Cyprus, an island of great antiquarian interest which is mainly sub-point is that the agreement is illegal as desertion or refusal to do duty. These

largely upon the goodwill of those in charge of adjacent plantations, in fact to such an extent that they would not injure their business and social prospects by so doing, have returned at once to the mainland, with the conviction that Hawaii was no place for a poor man Some have stayed and taken up homesteads and kept them long enough to obtain patents, and then sold out to the plantations or other large land owners, and returned to the mainland." We do not gather from all the literature ou the subject any clear idea as to how Asiatic control which is said to be threaten. ing the islands can be averted by any measures, short of a "Commission Govera- ment," that would not invite the serious opposition of the Asiatic Gororomonts, the 47.40.3.20 interests of whose subjects would presum

ably be prejudiced thereby. It is obviously only by measures aiming at the exclusion 43.40 3.70 of the Asiatic that an "environment" could be created which would stop American families leaving confortable livings in 49.40 4.20 Hawaii for the Pacific Coast." Having regard to the conditions existing when Hawaii was annexed to the United States, the creation of the desired "environment" is scarcely feasible. The more the territory A.S, WATSON & CO. is developed the larger will be the demand for labour on the plantations, and since it is LIMITED,

vain to hope for American labour the plan- ters, be they American or Asiatic, must depend upon the labour of the Asiatic. Hawaii, wo are told, is larger than Con- necticut and Rhode Island combined, and incomparably more fertile. She produces fifty million dollars worth of wealth a year, and that amount can be doubled under healthful and stimulating conditions. The natural conditions there are such as to make it entirely practicable to develop a popala. tion of five hundred thousand people of the right kind. No doubt this is true, Hawaii has been well called "the paradies of the Fa ing the absence on leave of Sir Francis cific. Its climate is ideal and the possibili. Piggott in 1909 and 1910, and he then ties of agricultural development are doubt. tried amongst other important cares the less great, but we are afraid the American record action of Li Chek Hung. v. Li Chek population of Hawaii will have to reconcile lang which occupied the court no less itself either to the growing power of control than 51 days in bearing and in which all the counsel in the Colony were concerned. of the Asiatic

in the islands, or, in the He is a Justice of the Peace and Deputy alternative, to a system of Government akinLieutenant for Ferubrokeshire and in the to that which obtains in British Crown latter capacity be attended last year the installation of H.R.H. The Prince of Wales at Carnaygon. He is also a magistrate for Haverfordwest.

ALEXANDRA BUILDINGS.

The question is now whether

they are inconsistent with the terms of the amount thereof recoverable by the a statute (the Mercantile 8.8. Co. v. seaman as if they had not been paid or Hall 1909, 3 K.B., 423) then those advanced. This section was repealed by stipulations are invalid. Now the the Mercantile Marine Act of 1850, which agreement sued coon has a stipulation regulated the form of advance notes and that the defendant shall serve for at least provided that no advance of wages should twelve months from the date of signingbo mnds or advance note given unless the articles in Hongkong. By section (3) agreement contained a stipulation for the of the local Ordinance agreements mada same and an accurate statement of the by masters with seamen in the Colony amount. If any advances were made or must be made in the form and manner advance notes given in breach of theso His Lordship delivered judgment in provided by the M.S. Act, 1804. Section provisions the wages should be recover the Case of the Indo-Chins Steam 114 of the Act provided that the agreeable as if no much advance had been made, practicable the duration of the intended advance note unless he was a party to son, which was neard on April 4th, Sirvigation Company .. Mr. H. P. Robin-ment shall contain inter alia as far as and no party should be sued made, His Lordship said-This is a claim by voyage or engagement, or the maximum such breach. The Merchant Shipping Act a skipping company to recover from the period of the voyage or the engagement." of 1854 provided, section 149, that the defendant, an officer in the Mercantile There is no limit of time and I learn articles should be so framed as to admit equivalent of £28 88. advanced by the is to admit engagements for two or three ment of wages Marine, the sum of 8978.98, being the that the practice of the Harbour Office of stipulations as to advance and allot-

section 115 arc as follows:--(5) The no specific provision, or mention of plaintiff company to the defendant for years. But sub-sections 5 and 6 of regulated allotment notes, but there it Kong. The plaintiffs sue upon an agree or if the voyages of the ship average less the Morchant Scaman Act of 1880, which ment in writing in the following terms: ~~

I hereby agree to enter the service than six months in duration may be made by section 2 (1) made void all agreements of the Indo-China Steam Navigation to extend over two or more voyages, and whatever for the advance of wages, con- The section. Co. as third officer at a monthly wage agreements so wade to extend over two ditional on going to sea.

or more voyages are in this Act referred further provided that no money paid on of 20 per month; such pay to com- mence upon signing articles at Hong- to as running agreements:-(6) Running such documents should be deducted from. no person should kung. This amount to be increased to agreements shall not extend beyond the wages and. that

have right of action, suit, or set-off in re- £13 after six months' service. The cost next following thirtieth day of June or of the passage out, £28 88., to be ad- thirty-first day of December, of the first spect of any money so paid. This section vanced by the Company and to be re. arrival of the ship at her port of destina- was repealed by the Merchant Shipping funded by me at the rate of £3 per tion in the United Kingdom after that Act of 1888, and the terms of section 2 of month for the first six monthe, and date, or the discharge of cargo consequent that Act are substantially reproduced in on that arrival. The practice of the section 140 of the Act now in force. then at ao increase in proportion to the pay until the balance is paid off, Harbour Office is in the case of agree Section 114 (9) of the present Act is a

ments to serve on vessels engaged in the follows:-The agreement with the crew and I further agree to remain in the local trade to limit the period of service shall be so framed as to admit of such Company's service for at least twelve months from the date of signing to a maximum of six months in accord stipulations to be adopted at the will of ance with sub-section (B). I think that the master and seaman in each case whe Articles in Hongkong. I agree to sail

this practice is correct and that section ther respecting the advance and allotment per us. Yorcke leaving Southampton on

Ha now applies here. Now the argument of wages or otherwise us are not contrary the 30th August, 1910,-Yours faith-

for the defendant was as follows:-The to law. Then comes section 40, which pro- three previous occasions had un

fully,

vessels of the plaintifs are engaged in vides I (a): "Whore an agreement with the local arade, and the average length the crew is required to be made in a form successfully attempted to wrest the scat from his father. In the general election of 1895 he was again returned by a large

of a voyage being less than six months, approved by the Board of Trade, the their agreements must be running agres-agreement may contain a stipulation for majority. Throughout his career in the

This is, I take it, a test case, the objectments and are limited to a duration of payment to or on behalf of the seaman aix months. The defendant on his conditionally on his going to sea in pur- House of Commons, in which he fre-boing to try the validity of the agreement arrival in Hongkong shipped under such suance of the agreement of a sum not an agreement and on its expiration be exceeding the amount of one month's under which the advance was made. It

company entered into another similar agreement wages payable to the seaman ander the appears that the plaintiff

Even if agreement, and (b), stipulations for the usually engages its officers in London on for a period of six months. an agreement in this form, paying on section 115 does not govern the contract allotment of a scaman's wages may be their behalf the cost of the passage out to sued on, yet as the section limits the made in accordance with this Act, save Hongkong- I rather gathered that the agreement, in the articles to a period of as aforesaid an agreement by or on be recovery of this advance is not always aix months it is not competent for the half of the employer of a scaman for the pressed for the matter depending per- haps on the length of time the officer seaman to make another contract for a payment of money to or on behalf of a If, however, he makes seaman, conditionally on his going to sea longer period remains in the Company's service. But such a contract, it is inconsistent with from any port in the United Kingdom, that after all is not a material point. In the section and is therefore bad. Other shall be void, and any money paid in this case action was not taken until the wise the provisions of section 115 (6) satisfaction or in respect of any such defendant had resigned his post after would be a dead letter and would afford agreement shall not be deducted from the serving twelve months. He admits that no protection to the class of persone for seaman's wages, and a person shall not the plaintiffs made this payment on bis whose benefit they were enacted. Now I have any right of action, suit, or set-off think there is much force in the conten- against the scaman or his assignee in behalf. they can recover. The defence is to the tion. It was urged for the plaintiffs that respect of any money so paid, or purport- effect that the contract of service, good although the seaman's service under the ing to have been so paid." The law has at Common Law, is made void by the articles is limited by this section, that is of couras been modified from time to time. special statutory enactments which governmerely because he incurs special liabilities As it now stands the agreement may con- The first under the articles, in respect, eg, of tain a stipulation for payment condi- the engagement of semen. not being in a form approved by the liabilities, they say, the legislature was one month's wages. Does this section tional on going to sea of not more than ject to Turkish law, and where owing to Board of Trade.

unwilling to impose on him for longer apply to Hongkong so as to render void. Secondly, it is urged that section 115 than a maximum statutory period. This any agreement for payment of a larger. the mixed population of Turks and Greeks justice is administered by mixed of the Merchant Shipping Act as te objection would not apply to a collateral amount where the seaman is to ship in tribunale of English, Turkish and Greek uning agreements applies and that agreement at Common Law, the only this Colony? In my opinion it does not. this agreement is contrary to sub-section remedy for a breach of which would The matter is, I think, concluded by the Judges. In 1907 he was appointed of that section. Thirdly, it is said that be a civil action. But the argument judgment of the Divisional Court in the Attorney-General of Hongkong and the advanec is irrecoverable under section seems to me unsatisfactory. There is no case of Ritchie verses Larsen, 1899, shortly after hit arrival he conducted the 110 (2) of the Act, and again that section doubt that it is the policy of the Act to 1.Q.B., 727. The Court held in that case 163 (3) applies, and the defendant is not protect the seaman, sometimes as much that by the terms of section 124, section prosecution of the notorious criminal bound by the agreement. It was also against himself as against his employers. 140 applied to agreements made abroad; Adsetts, who was condemned to death and urged that the general policy of the Act 11 on certain voyages the law forbids him but that sub-section 1 (a) does not make executed for the murder of an unas a whole is adverse to such advances to bind himself under the articles for the agreement void if the stipulation_is more than six months, I fail to see why for a sum exceeding a month's wages, for fortunate American woman in one of the which are contrary to its spirit. The chief hotels in the Colony. Mr. Rees law of this Colony relating to the Mer he should be allowed to bind himself for the reason that the prohibition contained in sub-section 2 is confined to agres- cantile Marine is found in the Merchant a longer period by private contracts. Davies, who was appointed a King's Shipping Order of 1899, and in certain True, the remedy for breach is à civil ments made in port of the United Counsel in 1908, has already acted as Chief portions of the Imperial Act which have action for damages, but it must not be Kingdom. Now section 5 (2) of our Justice for a period of eight months dur-local application. By section 41 of the forgotten that in some jurisdictions, Ordinance is the substantial equiva M.S. Ordinance, 1800, 80 much of the notably in this Colony, a man may be lent of section 124 of the M..A.. provisions of the M.8.A. 1894 and of taken to prison for a civil debt. On the and it follows therefore that the pro- any Acts amending the same, which are whole, I think, the stipulations for a hibition of section 140 (2) does not apply The third point taken in force in England and are inconsistent service of twelve months could not be in this Colony. with the provisions of the Ordinance, enforced against a defendant on an agree- for the defence therefore fails. But it are repealed, so far as it relates to ships ment where section 116 applied. This fails also, I think, for another reason registered in the Colony, but in all other does not, however, altogether conclude which is, that this agreement does not fall respects, the provisions of the M.S.A. the point. There is no express mention within the section at all, as it is not for 1594, and of any Acts amending the same in the agreement sued on of the nature an advance conditional on going to sea; which are in force in England, shall be of service to be undertaken. True, the it is not an advance noto in the accepted An advance la force in this Colony. This is a broad plaintiff's vessels are mostly engaged in meaning of those words. general enactment. Then sections (2) coastal trade, and, of course, the agree note in typical form is given in the re- (3) and (4) read as follows:-(I give the ment eventually made in the articles was a port of the case of Ritchie . Larson. material portions only): (2)No seaman running agreement, but this in itself does Another is set out in the ease of Bellamy shali, except with the sanction of the not make the agreement sued on bad one. Eunn, 9 Asp. M.C, 348, and there aro Harbour Master, be shipped to do duty the face of it. It was not set up for the other examples in the older reports. I on board & British ship elsewhere than defendant that the plaintiffs are limited come next to the fourth point for the at the Mercantile Marine Ofer. (3) The by their memorandum of association to defence, which was, that this agreement master of every British ship... sball enter coastal voyages. I have no evidence. on is an assignment or sale of wages under THE L.R.C. AND SUNDAY TENNIS.

into an agreement with every seaman that point and I cannot therefore assume section 103 (b). I am of opinion that whom he engages in this Colony and that it will be ultra wires for the com- this contention fails, as does also the A largely attended meeting of members carries to sea as one of his crew, in the pany to send a vessel or vessels on voyages suggestion that the agreement might HAWAI is just now in a ferment over a

of the Ladies Recreation Club was held form and manner provided by the Mer- of greater duration than six months. amount to an allotment of wages. The question as to whether in PR, who four

at the City Hall yesterday to decide the chant Shipping Act, 1894. (4) If the Should they decide to do so, in agreement matter seems so clear that it is marreces years ago was promoted from Chief Justice

vexed question as to whether the Clubmaster of any such ship carries any for service of twelve months or more Bary to discuss it at any length. All the scaman to sea without entering into an might be perfectly valid. Under the pants for the defence have therefore to. Governor, should be reappointed to the

agreement with him in accordance with special circumstances of this case I have failed, and I must give judgment for the executive chair. His opponents say that the

should be opened on Sundays or not. C. Montague Ede occupied the Chair, and the last preceding sub-section he shall be said that I think that the agreement for plaintiffs with the costs of the action. country is in danger of being controlled by

on behalf of the President (3lrs, Addison) liable to a penalty not exceeding $50. twelve months service could not bave been Mr. Rusu asked that payments by instal- But ments might be accepted, and Mr. David- Japanese and Chinese rotes, and some very

put forth in a long speech the arguments These sub-sections form an extension to enforced against the defendant.

the Colony of the special provisions that is not now the issue, for he has in son said his clients would have no objec interesting informaticis adduced in proof

for and against the proposal. He remark relating to the engagement of seamen fact completed the service agreed on. The tion. It was a test case, and they would of this. The census of Hawaii in 1910

ed that, with three exceptions, the mem-which are in force in England. Now, question is whether the fact that he might not take advantage of the decision in shows 98,211 Japanese and Chinese, out of a

A marriage has been arranged between hers who signed the requisition were mem-coming to the first point of the defence, have successfully resisted the enforcement their favour. total population of 191,909, of which 21,698 Captain John Bois, The King's Owo

bers of two years" standing or less, and I will say at once that section 113 (1) of of this stipulation had he chosen to do the Act has no application here, for the so makes the whole agreement bad. In be added that intimation bad been simple reason that the defendant was not, my opinion it does not. I am inclined are Chinese. Of the total population, 98,156 Regt., elder son of J. C. Bois, of

received from many older members in the words of the section, "carried to to think that this agreement, which, as I are native bom, ie, born within the United Kingslyn," Upper Norwood, late of

if the resolution were car. sex as one of the crew from a port in have said, is good on the face of it, might States or its possessions. Of that number, Shanghai, and Edith Norab, younger that

daughter of C. C. Beardsley, of Ulver-ried they would resign. Mr. Ede point the United Kingdom." He left England even in the circumstances of this case 19,899 are Japanese, and 7.195 Chinese

as a passenger on a mail steamer and his have been good as a contract to serve for ed out that to open the Club on Sundays duties as a seaman did not commence six months. But if I am wrong on this weekly share report dated April 19th making a total of 27,094 Asiatics entitled scroft, Virginia Water, to American citizenship, out of a total of The famous oil-fuel steamer Selandia, would involve extra expense and he until after he had landed in Hongkong point and the contract of service is state:- 98,156-equstling about one-fourth of the belonging to the East Asiatic Company, reckoned that that those members who So far, then, the agreement is untouched illegal, and therefore void, even then I The market for local investment stocks by the Act. Did, however, the agreement think that this part of the contract is opened firm in the beginning of the week native born American population. In 1900, was due in Singapore last Sunday. She desired to play on Sundays would need to

There is the provide an additional sum of $740 per become bad its form is certainly not in severable from the rest.

under review, but closes with a quieter Asiatic native horn citizens represented reached Penang from Genoa in 25 days,

annum. Finally he pointed out that when accordance with the requirements of promise to serve, consideration of which about one-eighth of the total number of and is reported to have "behaved application was made to the Government section (8) of the local Ordinance--when is the promise to engage and to pay wages tendency, rates, however, with few excep. native born American citizens. In another splendidly." On one day she covered 200 for the ground it was asked that it should the defendant shipped in Hongkong? In at a certain rate. There is again a pro- tione being well maintained. Sterling be held on the same tenure as the Cricket my opinion it did not, and for the very mise to repay money advanced-that is, on Rubbers and other London stocks "The Captain and officers are ground and the Racecourse. In view of simple reason that this was not the agree an executed consideration. The prama close easier, due doubtless to the realiza

·decade, says Governor FREAR, in his report knots,

the fact that no play was permitted on ment under which he shipped. The con- to repay is separate from the contract to of June 30, 1971, the majority of Japanese thoroughly pleased with her."

the Cricket ground and no racing allowed tract put in provides for articles being serve and is founded upon consideration tion of securities by underwriters to meet and Chinese will probably be native born.

on the Racecourse on Sundaye, it was a signed in Hongkong, and it is in evidence which is perfectly good and legal. On Titanic losses. The closing quotation for highly debateable point as to whether the that articles were in fact entered into the second point, then, I think the defence Fine Hard Para Rubber in London is Besides the foregoing, there are large num

Government would permit play on the in due course. The law requires for the fails. I come now to the third point, bers of Japanese children born in Hawaii

L.R.C. ground on Sundays having regard protection of the seaman a special form that his advance is irrecoverable. The 4/10 per lb., and the tone of the market to the form of application.

of shipping agreement. If this exists matter of seamen's advances was dealt quiet. At the London Rubber auction The resolution in favour of Sunday open- and is regular and in order, the law has with by Parliament as early as 1845. It held on the 17th inst., 700 tons of ing was proposed by Mrs. Hunter and nothing to do with the other agreements was provided by 8 and 9 Vic. Cap. 116, Plantation Rubber was sold, realizing. seconded by Mra Nesbit and was put to he may chose to make, as far at any rate entitled an Act for the Protection of 5/1 to 5/3 per lb. The open market rate the meeting, without discussion.

as the mere form is concerned. If, how Beamen, section 7, that no advance should of discount is easier at 3 per cent., the Twenty members voted in favour of the ever, an agreement, though not formally be given or advance of wages made to Bank of England rate remaining at 31 resolution and thirty-nine against it. The void, contains stipulations which are any seaman until after the ship's articles per cent. Bar Silver closes at 27 5/16 contranu to law either a contrary to had been duly signed. All payments of 1 snut. 27.7/16 forward, and Sterling T.T.

125

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HONGKONG OFFICE: 10a, DES VEUX ROAD LONDON OFFICE: 131, FLaar Bra. E

The Daily Press.

HONGKONG, APELL 20TH, 1912.

Colonies.

The German mail of the 20th March was delivered in London on the 18th April.

The Bandmann Opera Co., which has had a highly successful season in Hong- kong, give their final performance at the

Fheatre to-night, playing Peggs,"

The new China apparently is to have Poor Law for we see it stated that it is proposed to establish two poor houses at Hankow, one for men and one for women. Taxes will be levied from the wharves and bosts for their support.

POLO.

The final game of the tournament will that have returned to Japan, but practically be played at 4.45 p.m. to-day, at Cause- all of them equipped with birth certificates. way Bay, between the K.O.Y.L.I. and the verifying their rights to American citizen. R..A. ship, and who, evidently, cannot be prevented from returning and exercising the rights of American citizenship, if they

TENNIS.

The Chinese Recreation Club play a friendly tennis match with the Civil

Mr.

6

HONGKONG SHARE MARKET.

Messrs. Vernon and Smyth in their