1927-08-11 — Page 4

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THE HONG KONG DAILY PRESS, THURSDAY, AUGUST 11th,

ed

LAW OF COMMERCIAL

ARBITRATION.

IMPORTANT ACTION IN SUMMARY, COURT.

ANTIMONY SULPHIDE OR OXIDE ORE.

DISPUTE BETWEEN EXPORTER AND HOME

IMPORTER.

An action introducing interesting poitia in metal nasay and in arbitration law and procedure was begun in the Summary Court, Hong Kong, before the Puians Judge (Mr. Philip Jacks) yesterday morning. A London firm, lesers. John Batt & Co., Ltd., through * local solicitors (Mesurs. Johnson, Stokes & Master), aued Messrs. Silva Netto & Co., exporters, of Hong Kong," for $930, represent ing the equivalent of £03 96. id, damages under an alleged breach of contract for the sale of 75 tons of Chinese antimony sulphide ore. “Mr. ̄IR. ̈ ̄Andrews appeared for the plaintiffs and“Mx.”"C. ̃G. Alabaster, KC, instructed by Mesara. Leo. d'Almada & Nephew, represented the defendants.

..

1927.

THE DEFENCE. This completed the case for the plaintiffs. The time was 1 pm, and the Judge was unable to con- tinue the hearing the same after-

moon..

Mr. Alabaster said that, in 'the opinion of the defence, these pro- cecdings were so completely, mis conceived that, if the Judge was prepared to give up a few moments of the luncheon hour, he thought he could satisfy the, Court that there was no cars to nháwer.

The Judge agreed to continue the hearing.

In the writ, said Mr. Alabaster, the plaintiffs alleged breach of con- tract by the defendants, and pro- duced an arbitration award. This, however," was an award upon an entirely different contract. The defendants contract had never been submitted to, arbitration: a different contract was so submitted.

proved in the Court of Appeal sad Spelter *. The Bristol Steam Navigation Co., 19 Q.B.D., P. 96 Unless the contract absolutely incorporates the other comment ed Mr. Alabaster, "it does not give the right of indemnity. Counssi also quoted a Judge as having re- marked on this point: "You need a contract to

indemnity."

NEW VICTOR

RECORDS TO-DAY

S. MOUTRIE & CO., LTD.

GRAVE.

KILLING TRADE BY OVER TAXATION.

o

ALIENATING CHINESE AND FOREIGNERS.

IN HUNAN.

TANG SENG CHI'S COMPLAINTS.

ORDERS PROTECTION OF FOREIGNERS.

It is difficult to say how much.

The facts of the case were that statements in the documents were: the ore was shipped on assay and "The shipment was rejected in certificate by a Hong Kong analyst consequence of a large proportion The plaintiffs assumed that if the CHIANG'S POLITICAL COMMUNIST SWAY that it was of the standard known of oxide," and "it was ore consul-contract, was similar to the as 50/35 per cent.; that is to say,taining so much oxide as to remove original contract, and the first pur that the antimony capable of being it from the category of good iner.chaser had had to pay damages to extracted from the ore was between chantable antimony sulphide." Mr. the sub-contractor, the

first pur 50 and 55 per cent of the total A. C. Franklin, analyst, of Heng chaser could claim an indemnity weight of the are. The shipment Kong, declared that the presence from the original supplier. That was renold by Messra. Batt & Co. of any quantity of oxide would be was not so; not even if the clauses to a third party, Mesars Hallet & due to oxidisation arising from long in the two contracts were identical Soan, who claimed, an allowance exposure.... There was no ap Certainly it was not so when they on the ground that the ore co-pearance of admixture with ordi- were different, and he would show tained an unduly large percentage, nary oxide ores." Messrs. Hallet that they were substantially differ. of oxide, that it was antimony oxy- & Sons, on the other hand, in pre-end in this case. On this point Mr. sulphide ore, instead of antimory seating their case to the Arbitra Alabaster quoted Pontifex v. Ford, sulphide ore, as ordered,

tor, declared: "It is a mixed ore,12 Q.B.D., p. 182, afterwards ap- Messrs. Batt & Co. notified with some bags of pure oxide Messrs. Silva Netto & Co. of this amongst it." claim and the latter replied that

Mineralogical Specimens. they could not understand the com-

With regard to this point Mr. plaint in view of the personal in Alabaster exhibited in Court vari- spection by Mr. Silva Netto to

ous specimens of antimony ores, ensure that the right ere was pack particularly a case loaned for the ed, and the certificate of the Hong purposes of the case by Mr. Dovey, Kong analyst, that the ore assayed the Government Analyst, showing "to the correct standard. (That this the progressive changes in antimony was so, it appeared, was agreed sulphide ore due to oxidisation. between the parties: the dispute. A piece of antimony sulphide ore, turned, entirely on the percentage part of the shipment in dispute, of ozide present.) Cables were at-

was also exhibited in contract with changed, and in the course of these.

a piece of antimony oxide ore. Messrs. Silve Netto Co. suggeted The first was rough and greenish that, if an agreement. could not be grey in colour; the second smooth, reached, the matter should go to shiny, and of a reddish hue. arbitration: the terms of the con The Judge remarked that presum. tract, provided, for this, each party ably, if the ore in, dispute contain being entitled, to appoint an arbied too much oxide, its appearance

communication was made." trator. The course suggested was

Alabaster also mentioned that in would be changed. adopted, but the arbitration took place, between Messrs. Batt. & C. expert said that when crushed it Co. were making an enormous would be reformed at a conference does not seem to have entirely

Mr. Andrews replied that the the price of re-sale Messrs. Batt &

was found to contain much more proft," buying for 2838, per ton at which the foreign Powers affect turned against Communism. A few exide than its appearance would and selling for 350s. per ton. Why ed would be represented

the idea of having governments afraid of going out on the streets as were they getting a special price?

present at China's tariff business Because Hallet's wanted the ore for conference was not, as some poli- the people cursed. them as Com- a very particular and peculiar par- tical sharps have tried to show, for danger. Also the Government has

munista; there is now pose. The correspondence showed the purpose of imposing any die just issued an order forbidding the tatorship upon this country's own that they wanted rulphide ore to affairs. The idea was to have opening of any college or middle

and their sub-purchasers, Messrs. Hallet & Sons, the arbitrator awarding the amount which Mestra. Batt & Co. now, sought to recover iram Messrs. Silva Netto & Co. Mr. Andrews submitted that, bay-

kuggest.

- th

The Judge: Le it sold on appear- atre 1

3. Andrews: No, by assay, ar

Chiang Kai Shek is digging his reliance should be placed on the own political grave with his little apparent improvements of affairs in Customs spade. The man is afflict Central China. The facts available ed by neute taxitis, and his idea seem more hopeful, but the infer- of good government is to kill the ences that can be drawn from these trade goose with liberal and facts are not very reassuring. poisonous increases in import La Changsha the new Govern- duties. There is a touch of grim ment was established about June hamour about his statariant an 18th, and all the Labour Unions nouncing tariff reform." He have been reorganized, General says "To she legal 5 per cent. ad Tang Seng. Chi has just paid a short valorem they will add per cent. visit to the city and there publicly on all ordinary imports, 15 per stated that he did not belong to cent. to 25 per pent on luxuries, the Communist Party and that according to classification, and every effort was to be made to pre- 573 per cent on alroholic liquors vent the Unions again getting out and tobacco products with an of control of the Peasants' Depart equivalent excise on articles mann-

ment of the Kuomintang. He de- We come at once to the "con- factured in China."

plored the lack of trained leaders tract, continued Mr. Alabaster, an outright admission that the definite suggestions as to establish- Note that word "legal" It is and efficient organization, made and we and that the two were other taxes are illegal. As in- ment of schools for the training of When Mesire deed, they are. Chiang Kai Shek lenders to organize the various entirely different. Hallet, bought from Messrs. Battas no right in law or equity to branches and by this means he the application of any tariff addi- hopes to avoid the repetition of they wanted something for a special tions. He is not representative what is known in official circles as purpose: that special purpose was government: merely a local dicta- the Changsha incident."

torial administration. He and his In an official proclamation, be not communicated to the suppliers appointed representatives of the ordered the protection of foreign in- Damages could be claimed if it had Nanking council hold no mandate terests in Hunan Investigation of been communicated, but not if no from the people to alter inter the looting of the A.P.C. building Mr. China's obligations or to flout at iyang is to be made, the looted

national

goods returned and the offenders There is a clear understanding punished. catablished at the Washington con- The Short Haired Women. ference that the tariff of China

On the other hand, public opinion

Now

weeks aga

anort-haired women were

no such

ing suggested arbítration, Messrs. rived at from samples. We do not grade up" some oxide ore of counsellors at hand who could school next term, This may be a

Trade Still Bed.

Silva Netto were in honour bound complain of the metal content: that to accept the verdict if it went is was not a sulphide ore is the which they happened to have a tariff policy insofar as existing congregation of large bodies of Assist in the rearrangement of the Praiseworthy desire to prevent the against Messrs. Batt & Co. and

real dispute: it contained so much great deal on hand. Therefore, if treaties were concerned. The seat: Labour Unions are opposed to students in the towns, bat since the reimburse them. The two contracts oxide ore that the trade

they bought are containing some went behind that proposed con- cannot

ference was a sincere desire to higher education, it may be in con- --between Monara. Silva Netto and

dxide it would not suit them. "It frame 271 understanding that Currence with their wishes. Messrs. Batt & Co., and between recognise it as a sulphide ore.

is unsuitable for our buyers' needs," would give China fullest tariff With regard to the arbitration Messrs. Batt & Co. and their sub-proceedings, the Judge pointed out

while wrote Messrs. Batt & Co. But that satisfaction

safeguarding puschaacrs were in the

Bame that Messrs. Silva Netto were not

was not to say it was unsuitable established rights of other nations for the general market; it was only unsuitable for the special needs of their buyer. Messrs. Hallet made their special purpose one of the

terms...

Mr. Alabaster: We deny that. In regard, to, evidence for the plaintiffs, Messra. Batt: & Co., Hr.

for cross-examination.

given an opportunity, as provided arbitrator. in the contract, cf appointing an

Mr. Andrews suggested that the

purchaser and the sub-purchaser.

*

.

The flood has retreated but trade has improved very little. The A.P.C. Piratical Effrontery.

bas despatched a representative and closed down their business. For one district, controller to" presume to alter tariffs is bold the coolis work, but they were not Russians were sent up to assist with effrontery of the most piratical needed, as the Changsha coolies If Nanking, Hankow, were glad of the job. Shopkeepers order. mention few of the latest seats and Eide their goods rather than

Andrews intimated that, in order point did not arise as the arbitra points in the arbitration and wrote Chengchow, Taiyuanfu, Peking, to are unwilling to take paper money, to we the trouble, and expense of tion was actually held between the in a submission to the Arbitrator, ¡ of government, are to act separate sell them, Rice is about $10 a. a commission, he had asked the

"Our only object in paying they in revising China's tarifi illegal picul, but is growing a little more defence to agree to the correspon-

ly, a state of political and business plentiful with the prospect of the Another point of interest arose in high price we did was that we were

chaos, even greater than that ex-new harvest. The Hankow-Chang. dance, on which the plaintiff's care this connection. Messrs. Batt & very short of sulphide ore, which isting today, is inevitable. depended.

Customs rates are never locally but Japanese boats are going ap ha train service runs irregularly, Co., in the arbitration proceedings, we required to enable us to work

California has до arranged. The Puisne Judge commented used arguments and made state up a large quantity of oxide ore more control over Customs duties and down, though they experience that this did not. appear a very ments in defence of Messrs. Silva that we purchased at a much lower than Pennsylvania, their orators with cargo, owing to the Japanese --

considerable difficulties in dealing satisfactory way of presenting the Netto's antimony shipment, but this their subscission to the Arbtirator, for them in the central govern work is going on. A few churches price." Messrs. Batt & Co., in and representatives speak and act boycott in Hankow. Some Christian case, as no opportunity was given did not estop them, Mr. Andrews claimed that the antimony sulphide in other well ordered countries. trouble and now an effort is being

ment at Washington. The same

haye held services all through the Mr. Andrews mentioned the din submitted, from saying now that ore was the usual merchantable Covernments of China for a day culty of the plaintiff, being, out of the ore was not a satisfcatory ship: quality, and was sold, by them or two, with limited jurisdiction made to open those that were the Colony and said, that if his ment.. The arbitrator overruled primarily on antimony content may not tamper with a delicate closed, People who were thought Lordship felt that he could not get them and could therefore be pray. But the defendants sold solely on without wrecking trade.

to be rich still find it necessary to matter of international agreemente to the root of the case without ed in aid in their claim against

change their houses frequently and evidence he would ask for an ad- Mesars. Silva Netto for reimburse awarded: an allowance having re tariff duties by Chiang Kai-Shek for the winter depend largely on antimony content. The Arbitrator Every high-handed increase of to live in retirement. The prospects journment to take evidence on ment. LOMİNİSSİON.

Mr. Alabaster objected to as the arbitration proceedings. Mr. the

Mr. Andrews also gave details of gard to the are not being suited to or any other district dictator must the amount of new grain, much of special purpose." The case be opposed by the Chinese people which has undoubterly been ruined adjournment on the ground, that W. K. Davey, a member of a firm for the defence was that the award and by foreign governments who by the flood.

plaintiffs quite clearly thought in opposition to Messrs. Hallet & could not therefore bind the first have agreements with the Chinese Labourers' Control at iyang, that if the correspondence was a Sons, was agreed by both parties supplier, the terms of whose con- people The only thing that is News comes from Yiyang, sug- initted as it had been there was (e. Messrs. Batt and Mesara. tract were different. He submitted holding, China's head above water gesting that the labourers still con- enough evidence in it to carry then Hallet) as sole arbitrator The that the whole proceedings were at the present moment is the little trol the situation there. Many ct through... They should either go on arbitrator wrote to Messrs. Batt misconceived and that he had no bit of trade now struggling the Mission buildings are occupied with the case as it stood, and fight saying that Messrs. Hallet hud sub- ease to answer.

through the treaty ports. If any by the Labourers' Unions and some it on the correspondence, or submitted samples which they declared

The Judge Your case is that you more straws are added to the load of the foreigners' houses have been mit to a non-suit The defence were representative of bulk. Did supplied 60/65 per cent. antimony the back of the trade. camel will Tooted, though in-one case the claimed that there was enough in Mesars. Batt, agree to arbitration sulphide ore, that it admittedly buckle.

damage may be attributed to per the correspondence to knock the proceeding on these samples, or came within those limits, and that The Dictator Speaks. sonal spite

owner, on planitiffe case sky-high would they prefer sample to be it was of merchantable quality i

The Judge informed Mr. Andrews taken, by an independent sampler T

In an interior with an Ankuo- the part of the Bervants on Mr. Alabaster: Exactly. And chun representative at Nanking that is the defence resisted an Messin Batt chose the latter that the other contents of the ore Chiang Kai Shek blandly remark- adjournment he must proceed with alternative and an independent were dross, and of ao importance ed that the time had gone by in heard in the election of a govern his case as it stood."

sample WAA

taken accordingly, in regard to its merchantable China, when national affairs in ment, nor in a popular appoint- The award stated" (after reciting quality the facts) that the arbitrator deter-The case was adjourned for the of one person or a clique, and that affaire being settled at the whim

China could be settled at the whim ment Not only are national- mined as follows:

Judge to consider the submission the Nationalist government t that there was no case to answer, Nanking was founded on the one person," but international

business also on the understanding that, if he of the people 20 decided, the parties would be At Nanking and elsewhere in the for curbing the tax and tariff pas Effective means must be found notified and need not again appear domain of Chiang Rai Shek, the sions of the temporary administra Court. If the proceedings are voice of the people has not been tor of Shanghai and Nanking continued local experts will be called for the defence.

the

Mr. Andrews proceeded to read the cables and correspondence be tween the parties, particularly a report by Mr. Kitto, a Leadon assayer, to the effect that examina tion of a crushed sample showed that the amount of antimony oxide precent was much greater than might be supposed from the appear ance of the ore în buc.

That the ore does not constitute a good delivery against the con tract,

That the allowance should be based on the difference in valge at the time of purchase of the * sulphide ora

ied as foot of next column) N. C. Standard.