416
acity. She had left Chilang Point about 5 p.m. on the 6th March and. in company with an- other junk which I will hereinafter refer to as -the "consort junk," owned by the plaintiff's father, was proceeding in a southerly direction to the fishing ground which lay south of the Point and ordinarily took some twenty-four hours to reach. There were also some thirty other junks which left Chilang Point the same evening for the fishing ground. On board the plaintiff's junk were sixteen people in all, in- cluding the plaintiff, viz., his wife, two sons and a daughter, his younger brother and his wife and daughter, Leung Shap Ng the helms- man, Chan A Fun the assistant helmsman, and six other Chinese seamen.
--
Of these, three, namely, the plaintiff and two of the seamen named respectively Cheung-jit Kwong and Chun Yau Tai were saved by the Hermione's boats, while the wife and daughter of the plaintiff's younger brother were picked up by the consort junk. The rest of the occu- pants of the junk appear to have been drowned. It is admitted that after the collision those in charge of the Hermione stood by, turned ou the electric light, and did everything that could be done to save life and render assistance and took the plaintiff and the two surviving seamen on board, treating them kindly and bringing them to Hongkong.
The two-seamen who were saved appear to have been the men who were on watch on the junk at the time of the collision. Cheung Yau Tai being the man at the bow and, the other the man on watch at the stern. They gave evidence that 'they saw the white light of the Hermione, on the port side of the junk and then, about three min- utes later, her red and green lights and that, in another three or four minutes, the red light disappeared and immediately afterwards the collision occurred, capsizing the junk, the Hermione striking her forward of the main mast on the port side.
It would seem that the junk people saw the steamer more than a mile away. In the plaintiff's preliminary act, indeed, it is stated they saw her two or three miles off, bearing
about E N.E.
Now, it is evident that, if the junk had a proper light, such light ought to have been seen by those on watch on the Hermione, be cause Lieutenant Davidson, the officer in states in his evidence that, at the time of the charge of the fore bridge of the Hermione, collision, there were two junks sucwing lights
half a mile off. He also states that had the light been reported to him half or three quar ters of a minute earlier he could have avoided the collision.
THE HONGKONG WEEKLY PRESS AND
on watch at the stern of the junk. He stated that at the time of the collision there were two lights, one a lamp at the main hatchway and the other "a lamp hoisted pretty high up at the stern" both of which were alight. The testimony, therefore, of the only three male survivors of the collision who were on board the plaintiff's junk is explicit enough, and their evidence is corroborated by that of the Master and the helmsman of the "consort junk." The Master, who is the plaintiff's father, stated that his junk was some two hundred and fifty yards astern of that of the plaintiff and on her starboard quarter, that his son's junk had a visible light but that at the time of the collision the stern light of his son's junk disappeared and then the steamer's search light was turned on. This evidence is corro- borated by that of Wong Mi, the helmsman, who stated that he could see the light on the plaintiff's 'junk, which was 200 to 240 yards away, and that she had two lights which were visible from the "consort junk.' Moreover, it is difficult to understand how the consort junk could have kept so olosely in com- pany with that of the plaintiff unless there had been some clearly visible light to guide her, for it must be remembered the night was so dark that, according to the evidence of the defend. ant's witnesses, the junk itself and its sails could not be seen as much as forty or fifty yards off. That the consort junk was in company is clear from Captain Callaghan's evidence, who, just after the collision, saw her light on the starboard quarter of the Hermione and noticed that she took part in rescuing the survivors. As there was hardly any wind she could not have come far in so short a time. As against this body of direct testimony, there is only the inferential evidence of those on the look out on board the Hermione, who stated that they must have seen the light at the stern if it had been there. It is possible, however, that their attention might not have been directed to the exact spot where the junk's light was until it was too late to avert the colli- both sides of the Hermione almost immediately sion; for several lights had been reported on before. On the whole, the evidence of the plain- by the able cross examination of the defendant's tiff's witnesses was not very materially shaken counsel, and I, therefore, find that the plaintiff's junk did carry a stern light as he alleges. I do juuk's sails, for the after-leech of the mainsail not see how it could have been obscured by the was some 8 feet from the post on which the stern light was suspended and the nautical relative positions of the vessels, the sails could assessor agrees with me that, considering the
not have intervened. 1 am therefore of opinion that the light ought to have been made out by those on board the Hermione in time to have avoided the collision,
It is clear that, by Article 20 of No. 1069 of the Queen's Regulations and Admiralty In-
When a steam ressel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel." In this instance that Regulation was not complied with,
It becomes very important, therefore, to as- certain whether there was a proper light on the juuk besides the lamp they had on the deck at the hatchway for the purpose of lighting the people on board, which appears to have been the only light seen by those on board the Her-structions. mione immediately before the collision. On this point we have, first, the evidence of the plaintiff, who stated that he was called that night es usual at one a.m. by the assistant helmsman and that the light at the stern was then, and also at the time of the collision, burning brightly, suspended on a pole seven or eight feet high situated amidships on the taffrail, in all some twenty-three English feet above the water. He stated that the light consisted of a lamp of foreign (ie, not Chi- nese) make, about one foot seven inches high and eight inches in diameter, having a round wick, and burning kerosine oil. He also stated that the glass was clean, having been that very evening cleaned by Chau A Chun,
one of the men who were drowned. Next, we
There is another matter in this case to which I desire to allude Lieutenant Davidsou stated in cross-examination, amongst other things, as follows" We had been passing junks all the evening and had been pretty close to some of the junks without lights; narrow escapes from collision," and he admitted that "we knew we were in waters crowded with junks, some with and some without lights."
I have asked the opinion of my nautical as. sessor as to whether, in such circumstances, it would not have been more prudent to have have the evidence of Chung Yan Tai, the man slackened the speed of the Hermione to less on watch at the bow at the time of the collision. than ten knots until she had got clear of the He said "we liad two lamps burning, one at the fishing fleet and surrounding junke. He in. steru and one at the main hatch. That at the forms me he considers that such would have stern was a foreign-made lamp, suspended on a been the right course to have adopted, especially pole eight feet in height. At the time of the having regard to the extreme darkness of the collision both lights were burning brightly." | night. He said also that the lamp at the stern was, hb thought, a little more than a Chinese foot (fourteen inches) in height and some seven inches in diameter, though he had never mea- sured it, and that the object of suspending that lamp at the stern was to warn vessels passing and repassing and attract their attention. The next witness, Cheung Ut Kwong was the man
In all the circumstances I hold, therefore, that the Hermione is to blame for this collision and that the plaintiff is entitled as regards the
first item of claim in the writ to have an ac- count taken of his damages in the usual way.
As regarde the second item of claim, namely, that arising from loss of life, this appears to be based on Ordinance No. 3 of 1889, known as
May 20, 1899.
"The Compensation to Families Ordinance, 1889," which is, in the main, identical with Lord Campbell's Act in England. There is, however, a provision in the local Ordinance that, where the suit is tried without a jury, the Court may give the damages which by the Eng- lish Act would have to be given and appor tioned by a jury: The joinder of a claim of this sort to the ordinary claim for ordinary dam- ages for collision snob as the Court, in its Ad- miralty jurisdiction, is accustomed to have as sessed by the Registrar and Merchants, is some- what inconvenient and unusual in this Colony. In the case of the Orwell, Law Reports, 13 Probate Divison, p. 80, it was decided that where an notion for damages under Lord Campbell's Act was commenced in the Admiralty Division and no application was made to transfer the cause to any other division, and interlocutory judgment was signed for the plaintiff in the absence of a statement of defence, the damages could not be sent to be assessed by the Regis trar and Merchants but that a writ of inquiry must go for their assessment by the sheriff and a jury. This was owing to the require- ment of Lord Campbell's Act as to the funo- tions of the Jury. Here, as the case is tried without a jury, I have power to dis- charge their functions, and I must con sider the facts and the principles upon which damages are to be assessed under Lord Camp bell's Act. No damage can be given for the mental suffering of the survivors." See Mayne on Damages, 5th edition, p. 515; nor can damages be given "in respect of funeral expenses or mourning" (Mayue p. 518). The question is what pecuniary loss did the plaintiff sustain by reason of the death of his wife, aged 28, and bis three little children. The wife's services may have been of value to the plaintiff; those of the little children, the youngest being three years of age, cannot have been of mach pecuniary value. To save the parties the expense of a jury I will, in this case, assess the damages for loss of life, which I do at the sum of $150. But in future claims of this sort should the Court. No question of apportionment be brought in the "ordinary" jurisdiction of arises, as the plaintiff is suing for himself alone.
The plaintiff is entitled to the costs of this suit.
Mr. Slade (instructed by Messrs. Johnson, Stokes, and Master) for the plaintiff. Mr. Robinson (instructed by Mr. H. L. Dennys) for the defendant.
IN ORIGINAL Jurisdiction.
BEFORE HIS HONOUR W. M. Goodman (ACTING CHIEF Justice) and A SPECIAL JURY.
pre-
HUGHES V. CHATER, AND MÒDY. vious day) William Kerfoot Hughes was plain-
In this case (adjourned from the tiff and the Hon. C. P. Chater, C.M.G., and (by order of the 15th February, 1899) H. N. Mody defendants. Plaintiff's claim was for:
(1) The sum of $24,506-22, being the balance due from defendant to plaintiff on the 30th day of June, 1896, upou various accounts which have been recently stated and settled between them; (-) Interest on the said sum of $24,506 22, from the said 30th day of June, 1896, nntil payment or judgment at the rate of $7 per centum per annum calculated with half-yearly rests."
The following composed the special jury :- Messrs. C. W. Dickson. Paul Witkowski, 8. Hancock, A. J. Gomes, H. A. Ritchie, A. H. Rennie, and E. W. Mitchell.
The Hon. H. E. Pollock (Acting Attorney- General), instructed by Messrs. Johnson, Stokes, and master, appeared for plaintiff, and Mr. J. J. Francis, Q.C., and Mr. Mannk, instructed by Messrs. Deacon and Hastings, for defendants.
· Evidence on behalf of defendents was resumed. J. M. de Graca said he was in the employ of Mr. Mody as bookkeeper and general clerk. He had been in the employment of Mr. Mody in these capacities since March, 1888. He had made up the accounts between Mr. Hughes and Mr. Mody from the 30th June, 1889, to the 23rd August, 1898. The statement produced was made out by himself and was quite correct. He made out the statement produced with re ference to Punjom Bhares. He made li ost
No comments yet.
Private notes are available after approval.