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April 25,19034
Under the law at present in force in Hong. | ong a fine of $500 or in default of payment of the fine, six months' imprisonment with or without hard labour may be inflicted on each 7 and his sider and abetter, but such a penalty has proved wholly inadequate in face of the large profits which are believed to attend the successful smuggling of Chinese into the Philippines, and in face of the fact that the stowing away is, it is believed, connived at and the profits shared in by members of the Chinese crow, “stevedores, and brokers, and possibly sometimes by Europeans employed in or alont the ship, ****
The fine imposed hitherto has always been paid at once, and it seems reasonably certain that there are persons connected with the business as aiders and abettors, who are able and willing to pay docasional fines ont of the profits svorning,s||||||||
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When legislation in the direction now propos- ed was anggested last year by the Chamber of Commerce the Government were nawilling to take the drastic measure suggested, and properly refused to do so until aflied that the ship owners had done all that they could to protect themselves, by requiring the officers of their
to
seasonable
against stowing away.
It has now, however, become evident that nothing short of the fear of imprisonment will deter those hitherto engaged in this business of “ running " Chinese into the Philippines. The Government have accordingly reconsidered the matter, and this Bill is introduced as a con- sequence of such reconsideration:
SUPREME COURT.
Friday, 17th April.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIE WILLIAM M. GOODMAN (CHIEF JUSTICE),
A CHARTER PARTY DISPUTE.
Judgment was given in the case in which Tam Long Chuen and another, ship charter rs. carrying on business in co-partnership at 726, Des Voeux Road Central aned F. E. von der Obe for damages, the action having arisen out of the charter by the plaintiffs of the Norwegian 8.8. Sleipne · The plaintiffs cancelled the charter party on the ground, as they alleged, that the steamer did not come up to the speed stipulated, and claimed damages accordingly. Defendant denied that there had been any breach of the conditious regarding speed and stated that if there had been it was caused by the foul condition of the ship's bottom and other defects; he further contended that even although there was failure on the part of the Sleipner to conform to speed conditions, such failure did not entitle plaintiffs to cancel the charter party, and he accordingly made a counter-claim for damages,
Mr. E. H. Sharp, C., barrister-at-law (instructed by Mr. F. B. L. Bowley of Messrs. Dennys and Bowley, solicitors), was counsel for the plaintiff, and Mr. 1. Morgan Phillips, barrister-at-law (instructed by Mr. G. C. C. Master of Messrs Johnson, Stokes and Master, solicitors), was for the defendant.
CHINA OVERLAND TRADE REPORT.
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vessel. On the 1st July, 1902, the plaintiffs | vemtól left England the cancelled the charter party on the ground Indeed he wrote *» Jette that the ship failed to comply with the which he delivered to the condition as to speed. This stop was 27th May as follows IN taken after the Sleipner had made several your chartering the as. Sleipner trips which, in the plaintiffs' opinion, showed, that make it impossible to taking them altogether, that the Sleipner steamer when I find it did not comply with the condition mentioned, please notice that the speed will I be defendant alleges this cancellation to be ingly and all other‹ conseg wrongful, and counter-claims for damag s. He therefrom be on your own ris denies the failure to perform the speed endi The charterers cancelled the ch tion and further says that, if the Sleipner failed and then the ship was docked. to perform such condition, such failure did not that time had a foul bottom, in spite of justify the plaintiffs in cancelling the charter been altogether somewhers about 20 days at party. Under the charter the plaintiffs were Saigon during the charter in fresh water, to pay 6,700 Mexican dollars a month for the The case for the charterers was that, at all use and hire of the steamer, and it is admitted events in the China Ben, the * Sleipner that they duly paid that sum till the date of (which is built, as Mr. Gordon ・ put it, cancellation. The case was tried at consider somewhat like a collier or barge and able length, before me, occupying no less than lacks the co-efficient of finences required seven days, and I do not think that any point out here) is not a ship of about 9. knot in which could assist the content on of either side fair weather. After consideration of all the was omitted by the counsel who appeared for | evidence, and the excuses ne to coal and, on the the respective p rties. Ten withs.es were last voyage, of foul bottom, I find as a fact that called by the plaint ffs and sight by the defen- there was a substantial breach of the charter daut, and the evidence was volumiuons.. The party condition as to speed and that the Sleipner, after being chartered, left Bangkok plaintiffs were, in the circumstances
February, 1902, and she arrived at that port on urged by Mr. Morgan Phillips that even the 26th, after having had to put into Saigon for there was a failure of performance as të the additional coals on her way. According to the speed condition, yet the plaintiffs had waived evidence of her mas'er, Daniel Rodseth, she had their right to cancel by not having done do at on leaving Bangkok with a cargo of rice, 96 once, ie, so soon as the vessel arrived from tons of English coal in her bunkers and 140 Bangkok or at all events at the end of the tons of Japanese, which they bought_from_a second voyage under the charter. No doubt stoamez One would have expected that 236 it is the law that if the breach of a condition tons would have brought her safely to Hong precedent is waived by one of the parties to u kong, a distance roughly of 1,500 miles (I contract, by not repudiating the contract, “ think, in evidence, it was stated to be 1,497 he knows of such breach, the condition pre- miles). Naturally, she was likely to encountercedent is onverted into a simple form of the a heavy monsoon at that season of the year, but contract and its breach_only gives rise to if she had made an average of even five knots an action for damages. But in the present she ought to have done the trip in about 12 case, it must be borne in mind that the defend- days. One cannot le surprised that the ant has all along denied that there evor was charterers were vexed at having to pay an breach, and, so far from admitting it, would additional coal bill for $4,350.25 for an extra have gone to law with the plaintiffs if they had 250 tons bought by the captain at Saigon. repudiated the contrae. Indeed he has now The captain, however, explained that after two done so and counter-claims in this action, The days of fair weather, they experienced gales of plaintiffs were, surely, justified in continuing wind for eight days and he deemed it safest to to employ the ship and pay the stipulated put into daigon lest they should run short of monthly sum for so doing, till they had given coal. But it was proved that the Germania, her a sufficient trial to enable them to establish which in her charter is described as a 93 knot that a breech had actually occurred and thus stemer, arrived in Hongkong from Bangkok to stow that they were entitled to cancel the the same day as the Sleipner (26th February) charter party. It is contrary to common sense having left Bangkok on the 18th : that is to say, that the plaintiffs, having paid the fall over a fortnight later than the Norwegian ship, contract price for the use of the Steimer for and in ordinary circumstances it is at most an over five months, and been put to extra eight-days' voyage for ships of about the 9-knot expense for coal, should be told that they must class. Others did it in that time in February, go on employing her till the end of the twelve 1902. However, at the interview Capt. Rodseth months, because they were induced by the explained that the bad weather was the cause of Captain's explanations and excuses as to. it all and that really the Sleipner could do her 9 first and second voyages to give her a very knots. According to the evidence the second full trial before cancelling the contract. Thə royage began on 2nd March and lasted till 19th correspondence between the parties must not May. It included trips to Saigon, thence to be forgotten. I am aware that much has Singapore, back to Saigon, thence to Manila said on both sides which merits careful and Rejang, and finally back to Hongkong. Unsideration, both as to the facts and the this voyage the performances of the Sleipner were better but on the whole much nearer eight knots than `nine. This failure to come up to the speed condition was scoounted for by the captain by allegation of bad coal. But it must not be forgotten that on 1st March, in sending the coal on board, the charterers wrote to the chief engineer: "We beg to send you 100 tons Cardiff coal and 70 tons Shakano lump coal, which we hope you will be good enough to weigh on beard and receive it if it is in good condition, and also return to us the enclosed receipt by the bearer after you have signed it.” It seems strange in face of that letter to have the second engineer describe in the witness-box that very coal as consisting of only four or five tons lump and all the rest like sand. The coal was very expensive coal and if it was nearly all | Hike sand it should not have been received on board in face of that letter, at all events with- ont telling the charterers at the time. On the 31st May, after the plaintiffs' solicitors bad written the letter of 26th May, 1902, practically warning the agents that next trip would be treated as a final test, the third and last voyage began, counting the voyage up from Bangkok as the first. It was to Iloilo and back, and the speed was about 6.8 knots. But this the tain explained was owing to the want of docking, which had not been done since the
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Hi Lordship in giving judgment said-In this case, the plaintiffs claim damages against the defendant for breach of a charter party alleged to have been committed by the owners of the Norwegian steamship Sleipner. The charter, which began on 27th January, 1902, was between the plaintiffs and the East Asistio Trading Company, as agents for the defendant, and the captain of the Sleipner. It was a time oharter for 12 months, and one of the conditions was that the Sleipner's speed should be about nine knots in fair weather, on
■ consumption of about 11 tons of best Cardiff coal per diem. - "The charter began to run at Bangkok. The Sleipner which was built at Bergen in 1901, had not been out in these parts beforaje lud, therefore, be charterers - knew nothing of her except by the description in the articulars. - The charter was arranged by Mr. Rögge, of: Lambre and Rögge, and he got his particulars the East Asiatic Trading Company, knowing nothing personally of the
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but, after giving the evidence and the legal arguments full consideration, I find that thers has been a breach of the speed condition of the charter party of such a character defeat the commercial purpose of the chartes party. I hold that the charterers were end led to cancel and that there was no waiver right, having regard to at all the ciront including the correspondence parties and their solicitors. The plainti therefore, entitled to judgment with costs unless the parties can agree amount had better be referred to man conversant with such matters. I understand, are not likely difficulty in agreeing upon such a refe if they cannot agree, they had beffer mention the matter to me again, and I will for the assessment of damages. In circumstances, I do not think they will 1 to amount to anything in the the large amount claimed by the
After delivering judgment remarked that the case hai gi deal of anxious thought -- thought the right course under stances would be for some sum--to be agreed upon be that the defendant would be of a reference, The plainting
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but
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