July 29, 1897.]
been
Mr. Boedinghaus, who was acting as agent and representative of Sennett and Co. in Nagasaki, received a communication from Sennett and Co. stating that the sub charterer had not paid the money under the sub-charter and asking Boedinghaus to stop further loading of the vessel, These instructions were communicated by Boeding haus to Captain Tollesfen, who of course ceased to receive further cargo on board in respect of the sub-charter. There was n tre- mendous row amongst the Japanese and appli. cation was made to the German Consul, who was representing the Norwegian nationality. Boedinghaus threw up the agency, Japanese police were put on board, and it was decided to land cargo destined for Kelnng, Formosa, and
· ́deliver it up to its owners. The captain cleared the vessel, commenced unloading whatever cargo was on board on the 24th December, and on the morning of the 25th the vessel was entirely clear. At that time there was still due the balance of the money that ought to have been paid to Wieler and Co., and also $3,000, which ought to have paid on the 19th or 20th December. On the 28th December Captain Tollesfeu wired to Sennett and Co. for orders and on the 29th he had a wire asking him to obtain a lien on the cargo that had been discharged and to secure a cargo for Shanghai. On the 31st. as the charter money had not been paid, Wieler and Co. gare notice to cancel the charter party under the conditions entered into and the vessel was then loaded for Hongkong, The plaintiffs' position was therefore this, that they fully and faithfully carried out the charter party and obeyed all orders as far as they could be obeyed up to the 31st December; that on the 31st December they justly under the provisions of the charter party cancelled, the charter party and got immediate employment for the vessel; that when the vessel sailed for the port to which she was to take coal she found she was unable to clear because the permit taken out by Sénnett and Co. had not been returned by Sennett and Co., and the Japanese authorities refused to issue a fresh permit until the old permit had been returned. The plaintiffs were claiming the full amount of the charter money up to the 5th January, the date on which the charter party would have terminated in the ordinary course, as it was the defendant's fault that the charter party was terminated. If the plaintiffs were not entitled to the full amount of the charter money their they claimed they were entitled to general damages. The defendant said the plaintiffs broke the charter party by impro perly refusing to take the vessel to Kelung and so causing a loss of earnings from the 5th December.
CHINA OVERLAND TRADE REPORT.
were not entitled to damages. The whole of the damages for breach of the charter party rested upon the allegation that the defend ant neglected to return the permit to trade at non-treaty ports and that in consequence of that neglect the plaintiffs' steamer Skarpano was detained for ten days at Kutchinotsu and that those ten days were simply wasted to the owners of the Skarpsno. Counsel submitted that the plaintiffs bad not given any evidence which would entitle them to damages on that head and that his Lordship ought to direct the jury that there was no evidence whatsoever upon which they could award the plaintiffs any damages which were claimed. It was quite clear that if the ship had been ordered by Messrs. Wieler and Co. to an open port ins- tead of to a non-treaty port that the ten days' detention would not have occurred, and there fore whatever damages were sustained were dne to the action of Messrs. Widler and Co. in choosing to send the ship to a non-treaty port.
His Lordship said the issue was whether there was any obligation on the defendant to return the permit. The plantiffs claimed dam- ages on two grounds.
87
His Lordship-I rule that when you are addressing the jury you can state your view. Mr. Francis can give his view, and I will direct the jury what my view is.
Again addressing Mr. Pollock his Lordship said-Interest for a client is all very well, but you may carry it too far.
Mr. Pollock-I did not mean any disrespect to the Court at all, but it does seem to me that
ought to be allowed to proceed with the argument now because I must break off my address to the jury in order to address you on the question of law.
His Lordship-The judge is the person who can best conduct the court. You will permit me to rule on this point now?
Mr. Francis was not called upon to reply and bis Lordship then gave his ruling in respect to the point of law concerning the agency
His which was first raised by Mr. Pollock. Lordship said the point was that it had not been proved that the defendant knew of the agency of Olsen and Co. and that they had been employed to enter into the contract. On that point the evidence of Mr. Sennett was that the defendant generally authorised him to Mr. Francis said the plaintiffs claimed dam-charter the Skarpsno. There was no limitation ages for breach of the charter party and special and no restriction and his Lordship ruled as a damages for the non-return of the permit. matter of law that if the jury found that Olsen Mr. Pollock thought that both the points and Co. were employed by Sennett and Co. on went together. The only claim for damages that general authorization that would be suf- that could arise was in connection with ficient to make the act of Olsen and Co. the act some breach of duty and the breach of duty of the defendant also. The employment of au- which the plaintiffs alleged the defendant had other gentleman was quite within the provi committed was the non-return of the permit.sions of law and defendant wou à be bound by The whole question of the breach of the charter the agency of Olsen and Co. Even if that were party turned on this question of permit and not so there was evidence to go to the jury of the ratification of Olsen and Co. in the fact counsel urged that the jury ought to be directed that there was no evidence which would warrant that Mr. Sennett himself said the defendant be- them in giving any damages whatsoever. came aware of the terms of the charter party, or at any rate saw the charter party, when it arrived in Japan ten or twelve days after its execution. Therefore, on the first point, the objection failed and the case must go to the jury with that direction. If they were satisfied there was a general authorization to Sennett and Co. to enter into a contract and Sennett and Co. employed Olsen and Co. to enter into the con- tract, the defendant would be bound by the
His Lordship asked if counsel thought the jury could give nominal damages, supposing there was a breach.
Mr. Pollock thought not, as the only damages sustained were through some alleged neglect of duty on the part of the defendant.
Counsel was about to read the particulars of the claim, when his Lordship said that the point had been argued enough. It was not In his address convenient to argue any more. to the jury both connsel could refer to the point and his Lordship would state his view to the jury.
agency.
Mr. Pollock then addressed the jury and submitted that the plaintiffs had not proved any neglect on the part of the defendant or his Mr. Pollock-This document gives the partic-agents in respect of the claim. ulars in detail.
His Lordship-I have told you my ruling on this point; I am not going to listen to you.
Mr. Pollock-Surely, my Lord, I am entitled to-
His Lordship-I decline to hear further argu- ment on this point.
Mr. Francis replied and contended that the plaintiffs' story was a perfectly plain and simple one and consistent with the everyday practice of commerical affairs. He asked the jury to say that Tuason was the person liable under the charter party and responsible for the damages caused.
Mr. Pollock-On a point of law-
His Lordship then summed up the case and His Lordship--I will not hear further argu-in regard to the question of damages, ruled that the jury could not award special damages but only npminal damages to be considered as general damages.
Evidence taken on commission at Kobe in support of the plaintiffs' case was then read.
The evidence of Mr. F. W. Sennett, shipment on this point at this stage; it is not con- broker, of Kobe, showed that the defendant venient. went to him and chartered the Skarpsno. The defendant spoke English and was able to read a little. Witness translated in Spanish the letter confirming the charter party, and defendant then copied the letter, signed it, and handed it to Captain Tollesfen.
In cross-examination the witness said defend- ant took no part in the management of the business of the ship after she was chartered. He left the conduct of the ship to witness. The ship was twice sub-chartered, once to Chinese and once to Japanese. Defendant did not know anything about the latter sub-charter. Witness gave orders to Captain Tollesfen to proceed to two ports in the Inland Sea and to Kelung, Formosa, but the orders were not carried out. No authority war given by witness for the landing of cargo to owners. On the 29th December Captain Tollesfen entered into another engagement with Wieler and Co. to proceed to Kuchinotsu for a cargo of coals.
After hearing witnesses the Court adjourned.
23rd July.
The whole of the evidence on both sides
Mr. Pollock-Not what P Not completed? His Lordship-It is not convenient to raise the point now.
Mr. Pollock-Am I then to break off my ad- dress to the jury and address your Lordship on that point?
His Lordsbip-I am not going to hear fur- ther argument. Will you resume your address to the jury?
The jury considered their verdict in private and on returning into Court after an absence of a quarter of a hour the foreman said-The finding of the jury is that the defendant is liable under the charter party and that the plaintiffs are entitled to charter money at $6,000 per month from October 5th, 1895, up to and including December 31st, 1895. They are also entitled to $76.90, telegraphic expenses as per account rendered, less the amounts paid in the way of advances, etc., es per account rendered; these payments we total up to $1,850. With regard to damages, in view of your Lordship's ruling that damages are not per- Mr. Pollock-I ask your Lordship to make.smissible as special damages and that only note of your ruling,
Mr. Pollock-Am I to do that?
His Lordship-I have alroly told you that you can address the jury on the point, then Mr. Francis will address the jury, and I will give them my view of the matter.
His Lordship-Yes.
Mr. Pollock-It seems to me that it very much curtails the privileges of an advocate in
this court.
His Lordship-Perhaps you are not →→→ Mr. Pollock-I bave never heard of counsel being stopped before.
:
His Lordship-The Judge is the person who
nominal damages are permissible under the head of general damages, we award $100 as general damages, that being, we consider, nominal damages.
Mr. Francis-I ask your Lordship for costs of suit.
*
His Lordship-Judgment will be entered for the amount ascertained in accordance with the verdict with costs. Mr. Francis, you and Mr.
· having been taken, Mr. Pollock first of all raised / directs the Court; he has a right to give a rul. Pollock will agree upon the exact amount ?.
a point of law on the question of agency and submitted that the defendant was not liable under the charter party, there being no evidence to prove that he gave his consent. Counsel also raised the second point that plaintiffs
ing, and as a rule counsel submits.
Mr. Pollock-I ought to be permitted His Lordship-I rule not.
Mr. Pollock-Does your Lordship rule that I must break off my address to the jury-
Mr. Francis-Yes, my Lord, there will be no difficulty about that.
His Lordship, in releasing the jury, thanked them for the attention they had paid to the
case.
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Private notes are available after approval.