Page
November 14, 1904.]
CLAIM FOR GOODS SOLD,
Sai Wo Cheung sued Wong Ching Muk for 8803.33, being balance due for goods sold and delivered. Mr. Bailey, solicitor, appeared for the plaintiffs. Defendants did not appear. Judgment was given for plaintiff with costs, and an order was made that the money should be paid out of the deposit paid into Court by defendants.
•
Monday, 7th November.
ORIGINAL JURISDICTION.
BEFORE SIR H. 8. BERKELEY (CHIEF JUSTICE).
46
8.8.
OSAKA SHOSEN KAISHA V. OWNERS OF
PROMETHEUS." This was an action brought by the Osaka. Shosen Kaisha against the Owners of the Norwegian 8.8. Prometheus in respect of alleged damage and loss sustained by them on account of the Captain's refusal to load provisions to be carried between Japan and Formosa, declaring them contraband of war.
Hon. E. H. Sharp, K.C., instructed by Mr. John Hastings (solicitor), appeared on behalf
of the Osaka Shosen Kaisha; Mr. M. W. Slade (barrister), instructed by Mr. C. D. Wilkinson (solicitor), on behalf of the Owners of of the s.s. Prometheus.
The matter was originally referred to Mr. E. A. Hewett (P. & O. Co.) for arbitration, and Mr. Hewett, as arbitrator. after hearing both sides of the case, said he required the Court's decision on three questions. His Lordship was asked to answer these; nothing more. They
were :——
Firstly-Whether, under the terms of Russia's declaration, the cargo intended for shipment from Yokohama and Kobe to Kago. shims, Okinawa, Keelung, Anping and Tokao
contraband? by the Prometheus was whether Russia's declaration in this respect is binding upon neutrals or whether as urged by Mr. Hastings it is ultru vires?
If 80,
Secondly-Whether the line on which the Osaka Shosen Kaisha wished to employ the Prometheus is a "privileged line, and if so, was it therefore unlawful for a neutral ship to engage in such a trade?
I
Thirdly Whether, in view of all the evidence brought forward the Osaka Shosen Kaisha attempted to violate, or alter, the terms of the Charter Party as a whole, but particularly with reference to Clanse 37, by instructing the Commander to load a cargo of foodstuffs, and timber, and to proceed to the ports named in their letter of the 27th April, 1904.
Article 37 reads as follows--In case of war, steamer not to be directed to any blockaded port nor to carry any contraband of war,
The Charter Party was signed in Hongkong on the 10th February last between Messrs. Sander, Wieler and Co. as agents for the captain and owners of the s.s. Prometheus, and Mr. T. Arima, manager in Hongkong of the Osaka Shosen Kaisha.
Among the conditions of the Charter Party were the following :-
That the vessel be at the sole disposal of the Charterers, or their agents; to carry cargo and passengers for lawful voyages to certain ports of the world (open ports only), ports in the Amur district, ports north of Vladivostock, and interport trading in the Philippines being amongst those places excluded; the agreement not to be cancelled in the event of war being declared; the Charterers shall pay at the rate of $6,750 per mensem for the use and hire of the steamer; disputes to be settled by arbitra- tion.
Hon. E. H. Sharp said that the Japanese Government chartered some of the ships belonging to the Osaka Shosen Kaisha to be used as transports in connection with the present war. The Company chartered other ships, including the s.s. Prometheus, to take the
CHINA OVERLAND TRADE REPORT.
Hon. E. H. Sharp--I have local newspapers of the 9th February showing that it was then known here.
After Hon. E. H. Sharp had quoted some of the clauses of the Charter Party, Mr. Slade admitted that the signing of the agreement was after the outbreak of war, but the agreement had been drawn up beforehand.
Hon. E. II. Sharp drew attention to another clause, added in writing, saying that should the steamer be required, in accordance with Japa- nese law, to undergo a marine survey the Charterers might have the ship surveyed at their own expense without any breach
of the Charter. He also referred
to
the
clause saying that in case of war the vessel was neither to be directed to any blockaded port, nor to carry contraband. An important point of discussion was the meaning of the word contraband as applied to the case. On the 19th February, before the vessel had been taken over to the Charterers, correspondence passed between the parties as to what was meant by open ports. The result was: both parties agreed that open ports included non-treaty ports so long as the Japanese Government kept them open, On the 22nd of February the Charter com- menced-that was, the steamer was handed over: Next day (the 23rd February) she left Hong. kong under the charter on her first voyage to Formosa, where she loaded rice to take to Yokohama and Kobe; that cargo was duly delivered. That brought them to the 20th March, when the ship was at Kobe, and loading for her second voyage-a voyage that was never made. It was intended that the vessel was to take a cargo of provisions from Kobe to Japanese coast ports, and Formosa. The Captain declined to take provisions, on the ground that they were contraband. The voyage had to be abandoned; the ship was sent to Hongkong and there sub-chartered to Chinese for other work.
His Lordship What is the amount claimed? Hon. E. H. Sharp-Your Lordship is only asked to settle certain points of law: not the amount of cla m.
Continuing, Mr. Sharp said that the Captain's refusal frustrated the purposes of the Charter. In February certain regulations were pub- lished at St. Petersburg regarding, contraband. The meaning of these regulations formed another question referred to by the Arbitrator. After the Captain's refusal, and the ship returned to Hongkong, arbitration was decided on. During the hearing, on the 20th Septem. ber, a solicitor raised a fresh point, the third point referred to His Lordship. The exact meaning of contraband in the charter party was the point on which the action was founded. Were they, in arguing the case, to regard Russian declarations 8.8 to be abided by or was it International Law? He submitted to abide that they could not be asked by whatever Russia might state, but by what contraband meant in International Law. Were the Owners, to regard' as contraband everything that Russia might call contraband? He would ask His Lordship to consider what things were recognised as contraband by International Law. Commodities were divided first, articles for war into three classes: only, which were always contraband (arms, eto); second, supplies for peace only- pianos-not, as his friend was suggesting
guns inside (Laughter)—which never contraband; and third, those articles for both peace and war. As far as the third class was concerned, such articles would only be contraband if intended for warlike purposes. The ship was not intended to carry things which might be considered for warlike pur
The voyage
was from Japan to Formosa; not Formosa to Japan; and the Captain was not asked
to places described as Military or Naval centres. A contention of theirs was that the case should be considered from an English and American viewpoint as regards contraband.
with
poses.
1
to
go
a e
Mr. Slade-It is a matter of how you inter-, pret it.
make
His Lordship-No one country can place of their own steamer on the different runs. On the 9th February war broke out, sub-International Law, which, of course, is the sequently to the Charter having been signed. Law of Nations.
His Lordship to Mr. Slade-Do you admit that it was subsequent to the signing of the Charter?
Mr. Slade-No : we did not know.
Hon. E. H. Sharp said that was so. The Russians might declare everything contraband, and thus destroy neutral trade-make a" Paper Blockade," so to speak.
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349
After referring at length to precedents, Hon. E. H. Sharp said that the Owners of the ship, or their agents, which was the same thing, seemed to have seen the difference of two terms: “contraband," as used in the Charter Party, and "What may be considered contraband, used in a subsequent letter dated the 23rd March. The position was: firstly, should Russian declarations be considered as they read-he contended they should, bat his friend Mr. Slade would say they were ambiguous; secondly, if read as others said they were to be read they would be most ambiguous-in any case they must be construed in accordance with Inter- national Law; thirdly, assuming declarations clearly state provisions to be contraband irrespec- tive of warlike purposes, such declarations would be invalid; fourthly, in any such declarations would be ineffectual till sustained by judgment at a prise court; fifthly, the judgment of the prize court was not conclusive if not in accordance with Interna- tional Law, but was subject to diplomatic setion.
08.68,
Neutrals have constantly and successfully refused to be bound by orders beyond Interna tional Law.
*
After a pause Hon. E. H. Sharp went on to the subject of Interport and Formosan Trade." The owners contended that apart from contraband the ship could not be legally employed in a privileged trade.
His Lordship asked what was privileged trade. Did the Japanese make interport trad· privileg. ed for Japanese ships only; and in that case would neutral ships trading to there ports reader themselves liable to be confiscated by Bussia?
Hon. E. H. Sharp said that the contenti›a of the other side was that it was unlawful, but he had several answers to make. He said it was a lawful voyage in a lawful trade. Within the meaning of the legal authorities it was not a privileged trade, it was lawful for neutral ships to engage in it. Formosa was a place anyone could trade at; some of the intermediate ports were closed unless provided with a permit which anyone could obtain.
Mr. Slade-He has never found out which ports were not open; the facts have not been found out.
His Lordship-The facts must be found.
Kagoshima Hon. E. H. Sharp said he knew and Okinawa were not t:eaty ports; the other All these ports, how- ports were treaty ports. ever, had been open for many years to foreigners. The position was peculiar
Mr. Slade The ports are either open or not
open.
His Lordship-Is this a trade in which foreigners can engagė ?
Hon E. H. Sharp- Mr. Hewett has found that they can if they choose. It is open to all foreigners who pay the fee..
Mr. Slade That is not so.
Hon. E. H, Sharp-Vessels other than Japa nese may not of recent years have traded to these ports, but foreign ships could if they chose to
pay.
Mr. Slade That is not so; they shall not trade there unless they have special permission. Hon. E. H. Sharp-This permission is obtain- able by anyone who pays the fee
Mr. SladeThese special permite are only issued under very special circumstances.
see the His Lordship-As far as I can trade is not closed, but one must have a permit ----not absolutely closed.
Hon. E H. Sharp-The rule is obsolete; even assuming that it is in full force to-day, it would It only applies not cover the present case. when one of the belligerents throws open a port because they have been forced to by the other power,
were
His Lordship It may be argued that they were obliged to because all their ships employed at the war.
Hon. E. H. Sharp-Was the trade completely closed before the war, though?
His Lordship-No.
The case was adjourned.
The beachcombers of Nagasaki have been enlisted by a Japanese theatrical company to personate Russian soldiers for the princely salary of “twelve yen a month and all found." All they have to do is to look ferocious, sing any songs they like so long as they are load, and be knocked about by the Japanese actors.
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