1916-12-19 — Page 2

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THE HONGKONG DAILY PRESS, TUESDAY, DECEMBER 19TH, 1916.

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198

[1831.

THE ENEMY DARGO CASE AT SHANGHAI. CASE FOR THE PLAINTIFF.

In the US. District Court for Chins, sitting at Bhanghai, it will be remember tu, Looned. Everett, a common carrier, of Shanghai, brought an action against Swayne & Hoyt, Inc., ship charterera, to recover $4,030 gold damages in rosse quence of the defendants' refusal to accept cargo offered to them by the plaintiff

Mr. S. Fessenden's written argument for the defence was published recently, and on the 11th inst. Mr. W. S. Fleming, counsel, filled his answer, in which the following pussiges cecur:→

The facts in the case are for the must

exclusion of Americans and all others. Considered upon grounds of public policy it is not so much what has been done as what might be done, and the possibilities are too dangerous to admit that the excuses offered by the defentmois bre good in law.

COMFORT AND HOPE.

A SOLDIER'S MESSAGE FROM THE BATTLE.

God arms are round the undying Dead, Who serve him. Torment seeks in to To touch them, though because they blad Foobs take their passing for a pain.. Iv Hosqun

The dead soldiers of this war have given

SHIPPING

NOTES,

0 8. K. TO EUROPE,

con-

It is repeatedly suggested in the brief for the defendants that there can be no presumption that the defendants, a non- resident American corporation, knew the British daw applying to their British agents in China. We cannot admit that when an American corporation comes into mankind the splendour of their example this jurisdiction to trade as the defend- and the abiding memory of their love. ants bave done that they are to be re- cognized as non-resident. But, aside But they have done something more.parently intending to launch the under- froin questions of this character, we From the trenches and from these vast submit that they will be presumed to battlefields where man is crucified anew have known the restrictions on British agents and to have taken the risk. This conclusion is reached by the application of some of the basic principles of the law of agency,

The Fundamental maxim in the law of agency is qui jucit per alium fuit per part admitted by both parties. The chief. The agent stands in the place of his principal and his act in the net of his isstre is one of law, riz, whether principal.

After quoting authorities counsel pre American common carriers are justifiedceeds: The conclusion follows naturally in refusing service in China to ar that having acted with a full know American shipper because the British ledge of the facts (presumed if not actual) authorities or British trade rules forbid the defendants must be held to Have taken, the risk and assunted the liability which their British agents from having busi the law imposta on common carriers who ness relations of the character with such refuse to perform their duty to the

public. shipper. Stated otherwise it is-did the defendants commit a breach of duty towards the plaintiff in refusing to receive and carry the cargo offered by

hira?

they have sent back countless messages of comfort and hope. "Is it well with them that question which will eter nally rise to the lips of those who have loved and lost, is answered by them in anticipation with the assurance of pro- phrey, it is well."

This answer rings through that remark abla. series of letters from a young French artist-soldier to his mother which has recently been published in France with a preface by M. Chevrillon under the

titleIettess d'un Soldat " (Chapelot, Paris. 280fca, or s.). It has in a peculiar degree the qualities of sincerity and directness. The artist was never destined to paint the great picture of which he dreamed; he vanished in the fearful fighting in the Argonne of April, 1915. But if his grave is known he has left a monument more enduring than brass in this record of a soul that faced death with unfaltering courage and calm. No translation can reproduce the rare beauty and no selection do justice to the vast compass of the original, from which we extract some of the thoughts that make the deepest appeal to the heart:

The Osaka Shosen Kaisha is making: efforts to extend ita operations. It is aid that its management is bent upon doubling its tonnage, and aidering the inauguration of a European service from next year. It seems that the company originally intended to carry out the project on the completion of new steamers ordered, but lest a good opport nity be lost, the management are ap taking earlier and, it is said, have be gun investigations regarding the extra tonnage necessary for the new service. It is considered not impossible that the company will announce its inauguration much earlier than is now expected, says the Japan Chronicle. At least one liner will be sent once a month via the Cape, but at the same time it is said that the Osaka, Shosen Kaisha is also seriously considering the opening of a Mediter- ranean service, notwithstanding the sub- marino menace,

SAIGON RICE MARKET. The Compagnie de Commerce et do Navigation d'Extreme-Orient, of Saigon, report under date 5th December, as fol- lows:-Our market is quiet and business is all. There is a slight decrease in the arrival of paddy from the interior, the natives not being satisfied with the prices actually paid for it.

The total amount of rice exported from the 1st January up to the 28th November is 1,132,326 tons against 1,027,017 tons

in 1915.

We quote today--White rice, No. 2 Sifted Japue quality, Hongkong 83.59 per picul, fo.b. Saigon, for December shipment.

Can it then be said that the default of the defendants was due to causes beyond their control? We submit not We have shown how they will be presumed to have known the British law and the restraint on their agents, and therefore it follows that they must be held to have The defendants were the charterers of knowingly employe agents who would the American ship Tucatan and their not perform on the principals' behalf the citizenship as well as that of the plain duties which the American law compels The fact that the agents could not per tiff American. The tort alleged inform these duties to the same extent that DISCOMFORTS AND TERRORS. the petition as the basis of this action the principals might have done would Rain in war-time. It is a punishment HONGKONG RESERVES. was committed at Shanghai. The only have been sufficient justification for the of which you can form no idea.

For non-American element in the whole case principals in cancelling the agency three days and nights we have been ablo OBDEES BY MAJOE WAKEMAN, O.C., B.LV.B. is the fact that the defondants agents agreement. This was not done. So again to do nothing but shiver and whimper, acting for them here were British. we point out that the defendants must and yet we must carry on To sleep in

FIELD OPERATIONS, virtue of our Government's extra be presumed to have assumed the risk. a trench full of water has no equivalent The Field Operations which were to take. territorial jurisdiction in China, this

In this case the plaintiff stated that in Dante, but what of the awakening

place on Friday, 22nd instant, are Court has jurisdiction as was already he had contracted to ship for others from when you have to watch for the moment.

postponed. determined in an earlier stage of the ease. China to Pacific Coast ports of the to kill or to be killed! In view of the citizenship of the parties United States of America suficient, cargo You must never know what man can

Thursday, 1st instant only American law can be applied.

to fill the American s.s. Fenwick, but do to man. For five days my boots have that after the arrival of the vessel in been foul with human brains. I have Shanghai the Asiatic Petroleum Combeen treading on throats and stepping pany, a British corporation who had in entrails. Two dear friends, one of agreed to supply fuel oil to the ship, whom made a charming model for my were restrained by the British authorities fast portrait, have been killed. It was from carrying out their contract. As a one of the terrible discoveries of the result the ship had to take on coal for night. His body lay, white, magnificent fuel, and the space required for this in the moon. I lay down close by him. shut out about six hundred tone of the Beauty of things woke within me. cargo on hand and under contract. The Our condition as infantrymen is rather owners of the cargo or their represents like that of rabbits which are being shot, tives then threatened to hold the plain-We have required-or at least the more tiff liable for the losses austained, and,

It is undisputed that the duty of com mon carriers towards the public is to servo all who wish to employ them with. out discrimination as to terms or persona and in the order in which applications

for service are made,

PARADES.

and B. Cos, including Signalling Section and Machino Gun Section, on the road' outside the Low Courts, at-4.15 p.m. · Kow- loon and Taikoo Suctions at Percival Street, at 5 p.m. Dress! Drill order.

Mounted Section at Jockey Club-

Stables, at 5 p.m. under Instructor Q.M. Sergt. Talbot, Dress: Drill order.

STRENGTH.

No. 234 Pte. F. Austin is permitted to

resign.

timid of us have a perpetual inclina- No. 357 Pte. F W. White is permitted

to resign.

(Sgd.) G. K. H. BRUTTON Captain, Adjutant, E.K.V.R.

E ON THE SOLDIEK'E STATE.

I recall my satisfaction when I received my military discharge at 27. And now at 28 1 am again part of the Army, far from my work, from my interests, from my ambitions, yet never did life bring mo such an abundance of noble emotions: never perhaps have I had such freshness of feeling in recording them or such peace of soul.

Had the defendants been represented by American agents there is no doubt that a refusal to serve the plaintiff in the circumstances mentioned in the pot tion would have amounted to a breach of duty which the defendants owned to the plaintiff as one of the public. Can it be that while within the jurisdiction of American Courts they may evade this a compromise, he offered to arrange tion to look for & kole.

if possible to get the cargo or a part of responsibility by the appointment of it away on the es. Furatan The Britial agents et see to what pleadings in this case tell what followed, absurdities this would lend m

Plaintiff's agreements with the consignors The plaintiff in the case is a reputable of the cargo called for Gold $30 per ton American citizen of long residence in It is admitted of record that the rate Shanghai. He has engaged in the ship charged by the defendants for shipping ping business and in pursuit of the same similar cargo on the Fuenten was Gold be considered himself a common carrier $16.00 per ton. Three hundred tons were and recognized his duty to serve all with offered and the difference is the amount out discrimination. He has accordingly claimed in damages. Failing to ship rendered service not only to American this on the Yucatan, and after making shippers but to shippers of many other other efforts to find space, the consignors nationalities as well, including British themselves took the matter in hand and German and Austrian. He stated that through the agency of certain Japanese for performing what he conceived to be were able to effect a shipping by his duty under American law and is not Japanese ateauers at rates just a little discriminating between British shippers below those at which they hs contracted and shippers who are subjects of nations with the plaintiff. with whom Great Britain is at, war, he has been placed on the British Black List" and is a result British subjects are now prohibited from transacting busi ness of this character with him.

Under American law, however, the plaintiff's record is char his right to deal with the subjects of any of the war ring nations is undisputed and his duty when he himself acts as a common carrier is well defined.

I think our life must resemble the exist ence of the monks of old.

We are children.

NATURE AND BIAN. Spring hos triumphantly arrived, ` It finds men full of hate, doing utter ouf- rage to creation.

Thero will always be beauty on earth, and man, for all his mischievousness, will never be able to root it out. I hovo amassed enough to furnish my whole life. The dead will not hurt the spring. A RANSOM FOR MANY."

After the horror of the moment of their Tell M. that if death strikes the best itloss has passed, when you see how large is not unjust. Tho lesa noble who survive a place is filled by their memory, you will thus be made better. Let her accept feel a kind of relief at the thought of the sacrifice and know that it is not made that which really persists (after death). in vain,

You do not know what It is in those diamal woods that you lesson the dead teach. I know it.

understand the vanity of burial and of In the spectacle of the soldier who falls | funeral rites. The soul of these poor. there is a lesson in nobility and im-brave lads does not need that. mortality which steels us and by which we ought to wish those dear to us to profit. I know because I have seen how the soldier whose leader has fallen is transfigured with heroism,

MOTHERS AND WAR.

SUFFERING.

If there is one thing absolute in the realm of human sensation it is suffering. Now I understand what life is. It is the instrument that clears the soul's path to the absolute.

It must not be overlooked that plain tiff was not the owner of the cargo in question. It was left with him for ship- ment and under special terms, first by the Fenwick and then under a supple mental agreement by the Yucatan. The difference between his contract rates and the rates at which he could have shipped by the Fenwick or Yucatan would have been bis profits. Failing in his efforts Mothers have overwhelming agonies to to make the shipment by either of these suffer in this war, but be of good cheer, The right to enforce a remedy against vessels, the consignors were at liberty toothing here is lost. a common carrier under American law is rescind their agreements with the plain- not restricted to American citizens, and tiff and arrange the shipments them. British or German plaintiffs may come selves. This they did. It may be inen into our courts upon equal terms with ticaed, however, though we submit that Americans. Had spaws been denied it was not a necessary matter of proof, British saipper when the same was avail that aside from trying to ship by the able the shipper could have successfully Tuentan when the Fenwick failed, the maintained his action in this Court for plaintiff exhausted every mezos available the tort committed. The only difference to him to get this cargo' avay. between the British shipper in tho We therefore submit that the defendantsessive confidence, but a certain faith in paradoxical, as you say, and yet the best- circumstances and the American plaintiff in this action must be held to have com-the order of things-1 power to say as here is that the American has been placed mitted a breach of duty towards the on the so-called British Black List" plaintiff in refusing to receive and ship each trial befalls us that it is well.

Lat us always and in every condition for causes mentioned above. But our the cargo offered; that it is not excusable have faith in God. Like you, 1 feel Government does not and, we submit, on the grounds alleged in the answer;

we can only worship Him in spirit; like this Court cannot, recognize the British and that as a result of the breach of

you, I feel that we ought to avoid every *Black List," and before this Court the duty the plaintiff has been damaged in kind of pride which offends the beliefs plaintiff must stand in as good a post the sum of Gold $4,050, for which of others. tion at least as the British shipper. amount, together with costs, judgment is

requested,

The defendants' only claim in extenua tion of their refusal to serve the plaintiff is that the British Authorities would not permit their British agents to receive the cargo offered by the plaintiff.

MALAKA PINDA RUBBER ESTATES.

CE BEFORE. DATTLE, STA Human separation mean little; that which is really ourselves is the ardour PLEABURE AS USUAL.

of the soul. N What passes our understanding-and. We have the order to attack. I don't yet, after all, it is natural enough--is want to face the risks which that in- that civilians are able to continue their volves without sending you my thoughts normal existence while we are in torment. in the few moments of quiet that wo have left. Everything here combines to We have need of courage, or rather we Impart peace of heart-the beauty of the have need of something difficult to ob- wood in which we are living, the want tain, which is neither patience nor ex- of intellectual complication. It is moments of my inner life are now being passed

COURAGE AND YAITH,

Is is perhaps a desting and a privilege, of which our generation should be proud,

witness these horrors; but what a ter rible ransom it has to pay. In fine: Eternal faith dominating everything. Faith in an evolution, an order sur- passing our human patience.

IN FULL BATTLE.

Why am I sacrificed when so many others who are not so clever as I ure picserved? And I had something great One word only. We are in the hands to do in this world. But as God has of God. Never, never did we so sorely not willed that this cup should pass from need steadfastness and confidence. Death me, let His will be done.

rages but does not reiga. Life is still noble.

HIS IDEAL The artist must put forth his buds without dreading the frost, and perhaps God will permit mo horeafter to realise my ideal.

I have seen all my leaders struck down and the regiment decimated. I am in the bands of God, and I pray only that Be will allow me such a condition of mind” BLESSED 2 THE PROPHET.

and heart as will permit me to enjoy all Our consolation lies above all in the in His creation that man has not been: superhumanly clear conviction that the able to pollute and spoil divine and immortal energy which acts

LAST WORDS.

The British Government has considered it necessary to place certain trade re-

At the sixth annual general meeting of strictions on British subjects during the the Malaka Pinda Hubber Estates, Ltd., war. While all of these restrictions Singapore, Mr. Tan Cheng Lock (Chair and limitations are, no doubt, newssary man) announced that, after deducting when considering the matter from the directors' fees and making ample allow- British viewpoint, to neutrala they are ance for depreciation, the company earn- obnoxious, and if applied to Americans ed a total net profit of $175,442.20, equiv under circumstances such as are present lent to a 20 per cent. dividend on its in this case a situation might be created paid-up capital, as against a correspond in our race, so far from being weskened, Dear mother, we are again in the caro which from the standpoint of American ing $154,245.30 or 34 per cent, the

is exalted and rendered infinitely more of God. We leave at 2 for the storm. I public policy is intolerable. Such a

ous year. This increase was attributable situation may very easily arise here in to the fact that the company harvested potent by these turmoils. Blessed is he think of you: I love you: I commend Shanghai should the defendants' excuse about 17,300 lbs, more rabber, and realised who will hear the hymn of peace, but all three of us to Providence. Whatever 3d, or 10 cents per lb. more from the sale blessed already is he who divices it in happens, let us be ready for it. In the, be admitted as a defence to this action.

If this restraint can be placed on of its crops. That profit, in conjunction the tumult. And what does it matter if full possession of all my faculties, that British agents as to individual American with the $30,000 reserved from the previ- this magnificent vision should be realised is my prayer. Hope to the last, but above shippers it can as to all. The actions of Dus year's earnings, enabled the company when the prophet has gone? He who has all steadfastness and love.

(1) t open up and plant 281 acres of foreknown its coming has gleaned abued the British authorities in this respect jungle and lalang land; (2) to constructance of joy on earth

matters over which individual 6 miles of metalled road leading to the American slippers or the whole body of estates: (3) to erect 8 sets of permanent them can have no control, nor are they coolie lines and two bungalows; (4) to subject to review except through British write down the book cost of the property sources Following this out to its logical by $25,000; (5) to reserve and carry for- end it is conceivable that American ships, ward about $20,000 in available cash; and trading as common carriers, but with (6) to pay a dividend of 39 per cents for British agents in China, might be placed the whole year as against 23 per cent. at the service of British shippers, to the for the former year.

QUE

THE DEATH OF THE SOUL. The true death would be to live in a conquered country, for me above all, whose art must then be destroyed,

It would be shameful to think for a moment of saving my own life when my race demands my sacrifice.

(Continued at foot of nest Column.Y

Wo are now at the last waiting-point, I send you my love. Whatever happens, life will have been beautiful, M

Thus he passed, in the exquisite words of our own Poet Laureate, “nobly, 1- saints and heroes die, with heart and hand unstained by hatred or wrong," speaking even in death his glorious message to the world of living men. HW.W in the Daily Mail.