was
the
November 11, 1896.
Council in the Shanghai case would clear up, a the only great portion of the present case thing that would remain would I proceedings in this case were justified by their form. In reference to the jurisdicti Shanghai Court it was frue that diction was personal and that
no jurisdiction over by itself, had Norwegian subject; but there was no bar to its exercising jurisdiction if the Norwegian con sents and acquiesces to the jurisdiction.
Court
His Lordship said that if there was consent to the jurisdiction it would make the case a little stronger against the defendants, because the Chief Justice declined to enter final judgment.
THE HONGKONG WEEKLY PRESS AND
this case now power to entertain any claim against the Japa If his Lordship decided nese either by original suit or by counterclaim. and decided against the defendants they could The power given to the Supreme Court in appeal to the Privy Council at once with the Shanghai
given in virtue of the perfect certainty that both cases would come
und Foreign Jurisdiction Act
Was for before the Privy Council and the whole matter the purpose of exercising whatever jurisdiction be considered. If the judgment was in favour Her Majesty has in China by treaty, con- of the plaintiffs the defendants were equally vention, stipulation, usage, or otherwise. entitled to appeal. Considering the time it took Her Majesty had no jurisdiction what- to bring an appeal before the Privy Council it | ever in China by treaty. as between one of her was a decided advantage to both parties to have Majesty's own subjects and a Norwegian, this case tried here, and then appealed to the
His Lordship pointed out that the Norwegian and had jurisdiction only over complaints, Privy Council. If the Privy Council refused either civil or criminal, against British subjects to consider the counterclaim the plaintiffs in this did not consent to the jurisdiction, as was shown by Chinese and for the disposition of the snit would be left entirely to these proceedings, by the judge declining to enter final judgment. Mr. Robinson replied that the records of the personal property of British subjects. She and probably it would not be possible to resume
If the plain-case would throw another light on that matter had no jurisdiction whatever conferred on her them for eighteen months. by treaty to entertain in her Courts in Shang- tiffs got judgment in the Privy Council they and it would be found that ample consent, was hai any claim put forward by any subject would only get a judgment in personam given. non-Chinese. The Imperor of China, like and to gire effect to that judgment they would every other sovereign, had complete and have to pursue the defendants and the witnesses absolute power in his own country. The right all over the world, and they might lose their to decide by his own Courts all controversies case through having to wait for the decision of Witnesses might be dead arising in his territorial dominions was only the Privy Council. limited by the treaties he had made with by that time; they might be shipwrecked or the different Powers and in his treaties scattered in all parts of the world, and the with great Britain-and they were in- expense would be enormous in bringing them If the case were decided at complete and could only be fortified and together again. swollen to the extent to which they are once the parties could go to the Privy Council at present exercised by reference to the and legitimately have the whole matter brought treaties made by other powers and by in- before it for decision. Then even if the judg.
This voking the most favoured nation clause.
ment of the Privy Council were in favour of was not one of those cases” in which the Court the plaintiffs it would be no good to them. They had exercised its discretion to stay proceedings. would be compelled to come here with their It was not a case in which the proceedings were Shanghai judgment and commence another different form. If the Shanghai vexatious and unnecessary or one in which it suit in a was advisable to stay proceedings. His learned judgment was good this writ would not be friend's objection, before it could take any worth the paper it was written upon. He asked form, ought to be that the plaintiffs were taking his Lordship to say that this action had not these proceedings for the purpose of getting the been brought vexationsly, but rightfully and decision of the Court on a matter which had properly, because the defendants, when they already been decided, or that they were taking thought they were going to win, tacitly at the judgment of the proceedings in an irregular form to enforce least, consented to the judgment of a foreign Court. Both Shanghai Court exercising jurisdiction and sides were in an anomalous position, and the investigating the matter, but when they found plaintiffs would consent to stay of proceedings that the Court had decided against them In this suit if the defendants would enter a they refused to go on with the assessment of formal consent on the record not, when before damages and objected to a final judgment the Privy Council, to dispute the jurisdiction being made against them, thus leaving the of the Shanghai Court to entertain the counter-plaintiffs practically without a remedy in Shang. claim. As matters stood at present that ques- hai. If the plaintiffs got the judgment of this sion, if raised at all, would be raised by the Court they had a direct and immediate remedy, defendants or by the Privy Council.
and a remedy in this Court was much more His Lordship-Have you made the other valuable than any judgment the Privy Council side that offer ?
could give them, and there was the gravest doubt whether the Privy Council could give them any remedy at all.
Mr. Francis-No, my Lord. Counsel went on to say that if the Privy Council said that the Supreme Court at Shanghai had jurisdiction to entertain the claim it was perfectly clear that the Shanghai Court had no power to enforce the execution of the judgment against a Norwegian or a Norwegian vessel.
In answer to his Lordship Mr. Robinson said he was not prepared to give his consent to the suggestion made by Mr. Francis without con- sulting the head people in England.
Mr. Francis-We cannot consent to any delay at all.
His Lordship-I think it is a reasonable offer. !
6th November.
|
Į
Mr. Robinson said it did not lie upon his learned friend to say that there was no juris- diction and no judgment. An interlocutory decree was given and his Lordship would find that on the application for bail the Normandie declined to give bail and thereupon counsel for the Pekin waived that point and said he would take the order. for the counterclaim without bail. It would be rash presumption for this Court to come to the conclusion that the Shanghai Court was void of jurisdiction in entertaining that claim when after formal in- quiry and formal application it had taken juris- diction. He asked the Court to postpone the controversy until after the decision of the Privy. Council was made known.
are
His Lordship-In this case the plaintiffs an the owners of the steamship Pekin and claim the sum of $50,000 against the owners of the steamship Normandie for damages occasioned" by a collision which took place in the Whangpo river, in the port of Shanghai, in the Empire of China, on the 3rd April last. The present application is for a stay of proceedings on the ground that there is now pending before the Judicial Committee of the Privy Council an appeal in which the same question of-.
for this collision is in con- liability
That appeal was from a judg troversy. ment of the Supreme Court of Shanghai in a case in which the owners of the steamship Nor- mandie sued the owners of the steamship Pekin for damages occasioned by this collision to which I have already referred. In that case the owners of the Normandie were Norwegian subjects, but the owners of the Pekin obtained leave from the Court to file a counterclaim by way of cross-petition alleging that the Nor mandie was to blame and claiming damages: from her on account of the collision. The action and the counterclaim were taken to gether by the order of the Court and the trial took place on several days in the month of May last. The trial took place, as we are all aware, before a very able and experienced judge, and the conclusion to which he came was that the Normandie could not recover against the Pekin and he dismissed her notion with costs. He went into the question of the coun- terclairu and he found with regard to that that the Normandie was solely to blame for the collision, and he made a declaration to that effect. Then an application was made to the Court under that declaration for the enterin up of final judgment, subject to the assess- ment of damages in the usual way. When that application came before the Chief Jus tice in Chambers he declined make an order for final judgment on the ground that the taking action. The defendants were not ap- Court would not do that which it had plying, as they may apply hereafter, to have power to enforce, and there was conse the writ set aside as having been improperly no assessment of damages, Mr. Platt, say issued; their motion was to postpone contro-in his affidavit that he did not press tha versial matters until the judgment of the because, even if he had, he would not ha Court threw a flood of light on the law of the able to get judgment for the amount саве. If this motion was refused the defendants I am inclined to think if he had might have to reply to the arguments respect point the Chief Justice would hardly hay ing the jurisdiction of the Shanghai Court and conceded it, because the Court must have made ask to have everything set aside and finished. The up its mind that it would not goyl proposition of Mr. Francis that there would the declaration made in the deer be an advantage in hurrying on with the case, Normandie was solely to so that if the parties were dissatisfied they collision. The plaintiffs could appeal to the Privy Council, who would owners of the Normandie, app consolidate the actions, was so very amateurish to appeal to the Judicial that counsel did not think he need refer the Privy Council and further to it. The judgment of the Privy ingly granted, and the papers in
Mr. Robinson replied to the arguments of Mr. Francis in opposition to the motion and first of all read the notice of motion. He did that because it seemed to him that his learned friend was labouring under a misappre- hension as to what the defendants were asking the Court to do. They were asking the Court, in the first place, to exercise its discretion. The cases quoted by Mr. Francis were not authorities as to how the Court, under particu- lar circumstances, should exercise its discre- tion; they were not conclusive, but merely illustrative of the manner in which the Court could exercise its jurisdiction in the case of con- current actions being brought. The Peshawur case quoted by counsel was certainly the nearest to the present case. The second point he wished to make was that counsel for the plaintiffs had misapprehended the extent of the application in Mr. Francis-I suggest that we conclude the case, which was merely for a stay of pro- the arguments. Then your Lordship mayceedings and not to bar the plaintiffs from hold
Isover your decision until we know the re sult of the reference to Shanghai. I think that
Mr. Robinson-I am not in a position to give consent without consultation with the parties who are really in command of the case before the Privy Council.
His Lordship-We may as well go on, then. Mr. Robinson-Perhaps at Shanghai they aré masters of the case. A reference to Shang- hai may be sufficient. I think so, but I am not able to say so definitely.
will be a most convenient course.
His Lordship consented and Mr. Robinson anked that he should be supplied with the offer in writing and he would communicate with Shanghai.
Mr. Francis promised to let his friend have the offer in writing. He then said the second portion of his argument was as to whether there were two actions pending in different Courts. His Lordship The Judicial Committee will give their judgment quite independent of any- thing that takes place here.
Mr. Francis pointed out the strong pro- bability that the Privy Council would refused to deal with the counterclaim:
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