498
SUPREME COURT.
10th June.
IN SUMMARY JURISDICTION.
THE HONGKONG WEEKLY PRESS AND damage sustained by the cargo boat was only $8 or $10.
Another man on the launch gave corrobora-
tive evidence.
Mr. Grist submitted that before the tow could recover from the tug it was necessary to BEFORE ME. T. SERCOMBE SMITH (ACTING things and unless some orders were given she prove that the tow ordered the tug to do certain PUISNE JUDGE.)
HO YUN TIN v. CHEUNG HOI.
The plaintiff claimed $375 for damage done to his cargo boat by a collision, the result, it was alleged, of the negligence of the defendant.
Mr. C. Ewens appeared for the plaintiff, and Mr. Grist appeared for the defendant.
Mr. Ewens said the plaintiff owned a cargo boat, and on the 28th April he engaged the
defendant's steam launch to tow his boat to the steamer Wuhu. On the way a steam water boat collided with the cargo boat and damaged it, and plaintiff suffered a loss altogether of $375. It was not disputed that the plaintiff's cargo boat was towed or that the collision oc- curred. What was disputed was that the steam launch was to blame, the defendant saying that the water boat alone was to blame. That
question of course could only be decided by the
evidence.
The plaintiff said he was the owner of cargo boat No. 216. On the 28th April he had to take cargo to the steamship Wuhu and he engaged the defendant's launch, Kwang-choi, The Wuhu was lying in Yaumati Bay, and
to tow his boat, about 3.30 in the afternoon.
when in tow he noticed a water boat going in the direction of Wanchai. A short distance from the water boat the engines of the tug were
stopped, but started again, and the collision then occurred between the cargo boat and the water boat. The bulwarks of the cargo boat and two
pieces of timber above them were damaged The boat builder estimated the damage at $120, and the remainder of the claim was made up of $5 a day allowed by Government Regulations, and $25 which he had to pay for a cargo boat to take his cargo to the Wuhu.
office
Cross-examined by Mr. Grist-Tho Wuhu was lying opposite the Harbour Master's a long distance away and heading east.
The tug started from the Harbour Master's office, and when witness first saw the water boat she was coming round the stern of the Wuhu on the port side and steer- ing towards the east. Witness was then on the starboard side of the Wuhu. He did not hear the whistle of the tug blown. When the tug stopped steaming she was a distance of two or three launches from the water boat, which also stopped steaming. The engines of both the tug and the water boat were stationary at the same time. After the tug started her engines the water boat went astern and was going astern when the collision occurred. The tug stopped her engines first. The collision was due to the Kwang-choi forcing her way across the bow of the water boat. The collision would have been avoided if the Kwang-choi had not stopped her engines. He did not know whether there would have been a collision if both boats had gone straight on without stopping the engines. He had been a captain of a junk about twelve months, but did not know that it was the duty of a steam launch which had not a boat in tow to give way to a steam launch which had a boat in tow. The collision would have been avoided if the Kwang-choi had passed on the stern of the water boat, which she could have done by changing her course. There was ample room for the Kwang-choi to tarn round with the cargo boat in tow. The tag's engines did not go astern. The repairs could not have been effected for $20. The boat was not leaking
before the collision.
·
By his Lordship-When witness first saw the water boat coming round the stern of the Wu hu he was & little more than 240 feet away from the Wuhu. The water boat did not go forward after she reversed her engines and went astern.
Cheung Ng Tai, the captain of steam water- boat No. 2, belonging to Mr. Kew, spoke to go- ing astern when he saw the Kwang-choi and the cargo boat.
For the defence the master of the Kwang-choi said he blew his whistle as soon as he saw the water boat. It was impossible for him to avoid the collision without ramming the Wulu. The
had no right of action against the tng at all. Counsel quoted from a case reported in Marsden 203, in support of this argument, and said it had on the law of collision at sea, 2nd edition, page been proved that no orders were given from the cargo boat, and it was admitted that the tug could not have avoided the collision.
[June 18, 1896. intimation that there was evidence to support wrong in holding that the appellants could not the complaint and that the Magistrate was
evidence. be convicted by reason of insufficiency of by that time left the colony on leave and the The Magistrate, however, had
entirely re-heard by the Acting Police Magis- Appeal Court thereupon ordered the case to be trate, Mr. T. Sercombe Smith. The case was heard on the 19th November and the opium feited. It was this decision that the appellants farmers were fined $500 and the opium for- sought to have set aside.
Mr. Francis said the appeal was on a point of law and argued at considerable length that the His Lordship said he was pretty clear about Magistrate was wrong in convicting the ap the facts of the case, but two points of law arose. pellants. The first was, if a steamship had a vessel in tow appellants allowed the movement of the opium He had not shown any facts that the and another steamship went across her, which after seven o'clock. The. only fact shown was steamship ought to give way? The second that the appellants in a letter to the Colonial question was, under the circumstances, whether Secretary claimed the opium as their property. a tug was the servant of the tow, so as to pre-The Magistrate did not find as a fact, counsel rent the tow recovering against the tug?
Mr. Grist again referred his Lordship to the case he had quoted in reference to the first point.
thing to say on the question of having a pilot
His Lordship asked Mr. Grist if he had any
on board the tow or tug.
Mr. Grist said he would not go into that ques- tion. Supposing this was an inevitable accident reported in Lushington's reports, page 231, he referred his Lordship to the case of the Julia, where it was laid down that "in the event of an inevitable accident pending without anybody being in fault no cause of action can arise. Nobody had any remedy. He asked his Lord ship to give judgment for the defendants not only on the point of law but on the point of
fact.
If there was a
out the tow with reasonable skill and ability if Mr. Ewens said the tug was bound to carry
gathered from the perusal of the cases, the tug there was no pilot on board the tow, and, as he had the complete disposal of the tow and was bound to exercise due and proper care to avoid a collision, unless, indeed, it could be avoided in an ordinary way by some act of the tow herself. pilot on board the tow he was in charge, and if he was not it was otherwise. The steamer towing should in no way attempt to cross the bow of a clear steamer. Therefore be submitted that in this case the steam launch did not take sufficient and proper precautions have avoided the collision by going astern of to avoid a collision and the defendant might the water boat.
His Lordship reserved judgment.
11th June.
་་་་་་
IN APPELLATE JURISDICTION.-
BEFORE HIS HONOUR DR. CARRINGTON
(CHIEF JUSTICE) AND MR. T. SERCOMBE
SMITH (ACTING PUISNE JUDGE).
LAM SIN SHANG AND ANOTHER, APPELLANTS, V.P.C. LEONARD, RESPONDENT. The appellants, who are the Man Fuk Com pany, the opium farmers, sought to set aside the decision of Mr. T. Sercombe Smith, then Police Magistrate, whereby they were, on the 19th November, fined $500 for unlawfully mov- ing opium between 7 p.m. and 5 a.m. on the 16th June, 1895, without permission.
Mr. J. J. Francis, Q.C. (instructed by Mr. H. L. Deunys represented the appellants, and Hon. H. E. Pollock (instructed by Mr. Johnson, Crown Solicitor) appeared for the respondent.
The case has been argued both in the Appeal Court and the Police Court on two or three
occasions. In the first instance two boatmen were charged at the Police Court, before Hon H. E. Wodehouse, with unlawfully moving four chests of opium between 7 p.m. and 5 a.m. on the 16th June, 1895, without permis sion. The opium belonged to the opium far. mers and the Magistrate dismissed the charge. The Crown appealed against the decision, which the higher court upheld. The opium farmers were then charged with moving the opium, but this charge was also dismissed by the Magistrate, on the ground that they were not aware of nor had authorised the removal of the opium. The Crown again appealed and the Appeal Court sent the case back to the Magistrate, with the
submitted, as he ought to have found, that the opium was their property, or that the appellants were the owners of the opium either generally or specially. He found that the appellants that they did not obtain a permit to move after obtained a permit to move the opium and also
they were moving the opium themselves or that 7 p.m. There was no finding of fact that the persons who were actually moving opium were in their employ at all, and therefore counsel submitted that there were no sufficient facts to justify an adverse decision. There was no evidence at all to show any connection between the appellants and the persons who were actually moving the opium, except that the opium was the same as that in respect of which the permit had been granted authorising the move- ment, up to 7 p.m. and the possession of the it were shown that the persons in the boat were particular permit. He quite admitted that if
be some case against the masters, but he the servants of the opium formers there might
submitted that it was not shown in any way that the opium was being moved after the proper hour by the wish or the procurement or the authority of the appellants, supposing they were really the masters. Even assuming they were the masters they conid not be convicted unless it was proved that they authorised the movement. There was no evidence that the hostmen had authority to move. They might have stolen the opium, or they might have coming on, or they might have been going shifted their position because a wind was
to get water, or changing their anchorage. Their Lordships could not draw inferences in a case of this sort, and even if they had the power there was no evidence from which they could draw the inference that the appellants authorised the men to be in motion after seven o'clock. It was perfectly clear that the opium was being moved, but were the appellants criminally reponsible for that movement P Counsel submitted that the conviction ought to be quashed, and quoted cases in support of his contention.
The Acting Attorney-General submitted that the conviction of the Magistrate was right. He thought their Lordships were quite at liberty to draw the inference that the appellants were the owners of the opium at 7.40 p.m. on the 16th June. The opium was at the time being conveyed from Winglok Street to the appellants' factory in Morrison Hill Road and counsel submitted there was quite sufficient evidence to uphold the decision of the Magistrate. He asked their Lordships to hold that the men in the boat were the agents or servants of the appellants and quoted several cases in support of his con- tention that the appellants should be held - responsible for the acts of the buatmen. If a man put his servant in charge to do certain things the master must be responsible for the illegal acts of that servant.
Mr. Francis replied, and as an instance in supë‹ port of his argument said that there were two roads leading to the west end of the colony, viż.,. Queen's Road and the Praya; supposing the Praya was closed and he sent his servant to West Point with instructions to go along Queen's Road. if he went along the PraysTM and got into trouble with the Police would he (counsel) be responsible P.
The Chief Justice, in giving judgment, said i-
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