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THE HONGKONG WEEKLY PRESS AND
His Lordship-It does not turn upon the giving of the notice: it turns upon whether the representative of the Emperor of China is entitled to come forward in the place of the Consul and protest against the jurisdiction of the Court being exercised. I do not think we need dwell on the question of notice.
“involving a sort of expatriation. These His Lordship-It turns upon this, that the write endless, letters on the smallness of so-called representative of China comes forward their pay, the high cost of living and and protests against the Court exercising "dressing, and the monotony of life in the jurisdiction in the circumstances of the case.
The Acting Attorney-General-It would not "beastly hole
to which an ungrateful have made any difference if the notice had been country has sent them. They care noth-served on an officer of the Court. 'ing for their work, nor are their interests bound up with those of the planters and "settlers among whom they live. The height of their ambition is to be given a "six months' leave of absence, upon which they pack up for London." On the contrary, the colonial officials are a well selected body of men, and it is not the individuals but the system that is to blame. The officials, however well in- tentioned they may be, cannot be expected to have a very clear apprehension of the requirements of a community with whose interests their own are only indirectly asso- ciated, and the tradition that officials and un- officials are to be regarded as occupying op posite camps acts as a blight on progress, pro- posals coming from an unofficial source being generally regarded with disfavour in the first instance, though they may ultimately after much circumlocution be adopted. If
the communities of the Crown Colonies were allowed to manage their own purely local affairs improvements could be effected with more rapidity and less friction.
SUPREME COURT.
4th November.
IN ADMIRALTY JURISDICTION.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE.)
~66
JOHANN FRAHM v. 8.3. 'NINGCHOW," AND THEODORE RING AND OTHERS v.
8.8. "NINGCHOW.
Mr. Francis-No, my Lord, only as to whe ther Mr. Hillier is entitled to be taken as the representative of the Chinese Government and entitled to protest.
The Acting Attorney-General quoted the case of the steamer Octavie (33, Law Journal, Admiralty Reports, page 115) and then called his Lordship's attention to the terms of English rule 59, which was confined entirely to the Consul. The rule said Consular officer of the state to which the ship belongs if there is one resident in the colony." The rule stopped there. It did not say the notice could be served on anyone else.
•
His Lordship-I could understand you press ing the point about the notice if no notice had been served and Mr. Hillier came forward and as representative of the Emperor of China claimed that he ought to have been served. Then your retort would be You are not the Consular officer." That is not the case here. He comes forward and says "I in the place of the Consul protest against the jurisdiction.”
The Acting Attorney-General-What right has he to say
I in the place of the Consul,” seeing that he is not mentioned in the rules?
His Lordship-You can use the rules to show that he has no locus standi.
The Acting Attorney-General said that was his argument. His learned friend, as repre: senting Mr. Hillier, had no locus standi in the case at all to object, and furthermore, looking at the interest which the Emperor of China claimed in the ship, it would be improper for the Court to take any notice of the objection. Counsel submitted that it was quite clear that the wages had accrued; they were payable actions be dismissed. Mr. J. J. Francis, QC. monthly, and it was quite clear the plaintiffs (instructed by Mr. Dennys), appeared for the had a right to sue in the Court. He submitted defendants and Hon. H. E. Pollock, Acting that the defendants bad failed to show that the Attorney-General (instructed by Messrs. Johu- plaintiffs were suing improperly, that they had son, Stokes and Master), appeared for the plain-failed to support their motion to dismiss the tiffs.
The hearing of the arguments in these actions
was resumed. The defendants move that the
On Friday, when the case was opened, Mr. Francis asked his Lordship to dismiss the actions in compliance with the protest of Mr. H. M. Hillier, the Commissioner of the Chinese Im- perial Customs, who was acting on behalf of the Emperor of China, the owner of the Ningchow.
The Acting Attorney-General, for the plain- tiffs, urged that under 24 Victoria, section 10, the High Court of Admiralty had jurisdiction over any claim of seamen for wages earned on board ship, whether under special contract or otherwise, also over any claim for wages earned on board ship by the master and for disbursements made by him on account of the ship. There was no limitation to say there should be no jurisdiction until the ship arrived at her final port of destination, and there was no limitation as to the right to wages being suspended. The only point the plaintiffs had to prove was that the wages were actually earned and due under the contract between them and their employers. Counsel quoted the case of Taylor v. Laird (125, Law Journal, Exchequer), which showed that where an agree- ment between the parties was that wages should be paid at so much per month the wages were due and payable as each month finished. In reference to the status of Mr. Hillier counsel submitted that although the notice was served upon him as Consul for the Empire of China that would not make him Consul for the Empire any more than if he had been served as the Mikado of Japan it would make him the Midado of Japan. It was admitted by the other side that there was no Consul for China in Hongkong, and therefore it was only a question of degree. If Mr. Hillier had been served as Queen of England it would not have made any difference, the question purely being whether there was or was not a consular officer in Hongkong.
actions, and that it would be most unjust if the plaintiffs were deprived of their right of action against the ship.
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Mr. Francis, in reply, first drew his Lord- ship's attention to the Octavie case quoted by his learned friend and the statement by. Dr. Lushington in the case that it was he who had established the rule about serving notice upon a foreign Consul. Dr. Lushington said that the old rule was not to exercise jurisdiction without the consent of the representative of the foreign Government, but he had reversed that rule and laid it down as a principle that the Court had jurisdiction and would exercise it in the absence of protest and exercise its discretion, if there was a protest, as to whether the case should proceed or not. question in this case was a question of the comity of nations. If a foreign Government by any of its representatives protested against the jurisdiction that protestation would be taken into consideration on the question of the comity of nations, and if founded on reason able conditions would be acted upon. There was not a tittle of evidence before the Court as to what the seamen's contract was.
The
The Acting Attorney-General-I must object, my Lord, to my friend's argument. He is now opening a new line of argument and is following an extremely inconvient course.
His Lordship Mr. Francis is not going be- yond the line of argument. Mr. Francis, go on.
The Acting Attorney-General-I ask your Lordship to take note of my objection.
His Lordship-I will note it if I think fit, The Acting Attorney-General-I submit, my Lord, that I am entitled-
His Lordship-Go on, Mr. Francis.
Lord,
The Acting Attorney-General-But, my His Lordship-Mr. Attorney, I call upon Mr. Francis.
[November 11, 1896.
The Acting Attorney-Gei cate in this Court I really respectfully submit that 1 noted any objection I make.
His Lordship do not recog to that, degree. 1 take full note
·
ments and if-
right argu
The Acting Attorney General Your Ford ship may over-ule any objection, Lordship cannot refuse to hear me
His Lordship Yes; well, I have over-ruled the objection by calling upon Mr. Fra The Acting Attorney General- my Lord, that your Lordship cannot ov an objection without first making a note Everything that your Lordship says must ap pear on your Lordship's notes if it is material to the case, and I respectfully submit that if any objection is made by counsel to any evi- dence it is not within the province of the Court not to take note of that objection. It must be put upon the Judge's notes.
His Lordship-Well, Mr. Attorney, as I said just now—~~
The Acting Attorney-General My Lord His Lordship-Allow me; don't interrupt. The Court is not bound to take note of the
on
objection if the Court thinks there is nothing in it. Clearly, I do not think that every objection taken must be noted minutes of the arguments taken by the Court. At the same time, if you think the point is of importance I will make a note of it; but I wish it to be understood that it is not a right of counsel to have any objection taken. The objection may be frivolous.
a
has
The Acting Attorney-General-Counsel right to have everything he says noted. His Lordship-I do not admit Counsel has a right to go so far.
The Acting Attorney-General-I must bow to your Lordship's decision, but at the same time I must say, my Lord, as an advocate in this Court, that it does appear to me that when any objection is made by counsel whether it is good or bad, he has a right to have that objection noted. Of course, my Lord, I do not intend any disrespect to the Court in making this objection. I am simply standing up for the rights of counsel.
His Lordship-And the Court must also stand up for its rights to determine whether there is any substance in the objection and whether it is worth noting. I will note it if you like.
The Acting Attorney-General-I am very much obliged to your Lordship.
His Lordship then made a note of the objection and allowed Mr. Francis to proceed.
Mr. Francis said there was nothing to show that Messrs. Benuertz & Co. engaged the plaintiffs, how long their term of engagement was, or what were their wages. There was nothing before the Court but the endorsement on the writ in which they claimed so much "for wages payable monthly." A limited right to wages had been given to seamen in England. Their wages were not payable until the ter- mination of the voyage and their accounts were not settled until the termination of the voyage or until the voyage was broken up or they were discharged in some foreign port. Captain Frahm and the seamen had not been discharg and the voyage had not been broken up. There might be a vested right in these seamen to cover ultimately their wages, but they had no right to sue in the Hongkong Court. In regard to Mr. Hillier's position counsel con- tended that the captain's affidavit, which was uncontradicted, showed that Mr. Hillier was representative of the parties and was author by the Chinese Government to protest agai this Court proceeding. It was not necess that he should be a Consul or Consular agent
His Lordship You have no authority show that a protest has been made by som other than & Consul and upheld by the Judge
Mr. Francis said he had not. He concluded by asking his Lordship to dismiss both actions
with costs.
His Lordship said that the important ques- tion of the comity of nations had arisen and he would put his decision in writing.
10th Novermber:
His Lordship delivered judgement missed both actions. He ordered each pay its own costs.
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