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Tuesday, 8th November.
IN ORIGINAL Jurisdiction.
BEFORE HIS HONOUR SIR HENRY 8. BERKELEY (CHIEF JUSTICE.)
OSAKA BHOSEN KAISHA Y. OWNERS OF 8.8. PROMETHEUS.'
This osse was resumed. The Hon. F. H. Sharp, K.C., counsel for the plaiutiff, was instructed as before by Mr. J. Hastings, solicitor; and Mr. M. W. Slade, barrister, counsel for the defence, by Mr. C. D. Wilkinson, solicitor.
THE HONGKONG WEEKLY PRESS AND declaration regarding contraband. And the question of treaty ports was quite an after- thought; it was raised for the first time before the Arbitrator. The ground of refusal to proceed with the ship was one of contraband He did not know any previous case he could refer to on this point.
His Lordship-No, it is only a parallel to the servant question.
Hon. E. H. Sharp-Yes, my Lord, you can good one afterwards. Was the captain the discharge a servant for a bad reason and get a
author of all these reasons?
know what was in the minds of the parties at His Lordship said it was very important to
The Hon. E. H. Sharp, continuing his ports, or was it on account of contraband?
that time. Did they object to the non-treaty argument, said he would further discuss the Arbitrator's (Mr. E. A. Hewett) second question.
Mr. Sharp replied that even supposing trade Was closed, The parties had originally agreed that the ship
and supposing the doctrine was to be used for the Japanese coast and inter-engage in this trade. Any contract legal as was in full force: even then it was not illegal to port trade. In point of fact such was the purpose far as the Foreign Enlistment Act was con- of the charter, well known to the persons who cerned would be legal in all senses, entered into the contract.
In
any case, it was no breach of International Law; or charter was, signed both
At the time the
on
parties agreed that the ship was to be employed the Japanese coasting interport trade: nor had this been contested by the defendant's agents at Hongkong.
Mr. Slade-It has not been denied by the agents of_the_steamer; it has never been asked. Hon. E. H. Sharp said. His Lordship need not take any evidence point. The question was not asked because it was thought to be not worth denying.
оп that
Mr. Blade The question was put before the Arbitrator, but Mr. Hastings objected.
Mr. Blade asked that if any reliance were to be put on this point the Arbitrator be asked if the question was ever put.
Hoo. E. H. Sharp, continuing, said that before the ship was taken over by the two parties, in the first letter, dated the 19th February, the char terers notified the agents of the ship that they took non-Treaty ports to be open ports so long as the Japanese kept them open. The Japanes Government permitted foreign ships taken "up by Japanese companies to пле these ports; the Osaka Shosen Kaisha had the privilege. On the 20th February this letter was replied to. Tue Agents agreed that non-Treaty ports were open to foreign steamers so long as the Japanese Government kept them open. On the lÏth March the char- terers wrote to the agents of the ship: they said they had permission from the Japanese Government to send steamers to all ports on the Japanese coast. A reply was sent on the same day: the agents had no objections so long as the Japanese Government allowed it. He submitted that these letters were sent with a view to come to an understanding regarding the terms used in the Charter Party.
the steamer be
His Lordship said there was another point: did the parties determine what was lawful?
Hon. E. H. Sharp said he would come to that presently. Clause 36 of the Charter Party provided that should required, in accordance with Japanese law, to undergo a marine survey the Charterers might have her surveyed at their expense without any breach of the Charter, This clause relating to survey was inserted, of course, with a view to the ship being employed in the Japanese coast and interport trade. The clause was inserted in writing and if such had not been the intention it would not have been inserted.
own
Mr. Blade-If you refer to the law, my Lord, you will see that it does not agree with my friend's contention. The ship need not necessarily be in a non-Treaty port.
Hon. E. H. Sharp said that in the letter of the 19th February non-Treaty ports were expressly mentioned by both parties. As agente for the steamer, the actions of Messrs. Sander, Wieler & Co., regarding any charters, were binding-a view taken by the Arbitrator. Even supposing that this was not so, however, the owners in Norway subsequently rendered themselves liable when they sent a telegram to the captain of the steamer. There were two points: firstly, the agents must have had authority to enter into this contract; scondly, there was the telegram from the owners in owners knew the nature of the charter, and they which they told the Captain **Try cancel." The sent the télégram
as a result of the Russian
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municipal law, for neutral ships to engage in ments to take risk and the consequences in the a contraband trade. Such charters were agree event of being captured. All that the neutral Government said was "Do not look to us if
would not be illegal if the parties chose to you get caught." Such a contract, in fact, enter into it. The neutral would contract to ports closed before the time of war; were they take the risk. The other question was: Were these
in time of war? No, this trade was open opened on account of Russian naval successes
before the war began; all the successes had been to the Japanese. He submitted that the voyage in question ought, by the term of the contract, to have been performed. He asked that his Lordship auswer questions in favour of the charterers, and remit the
the case to the Arbitrator for the assessment of damages.
the defence. He said that before proceeding Mr. Slade rose to address His Lordship for with his arguments he would deal with the meaning of and effect of the Charter Party. He desired to remove certain obscurities as to the meaning of the Russian declaration regarding contraband. It was published in French. Rice and provisions were mentioned as contra- band. De même que was to be translated' as also," or "as well as "-not friend would have it.
such as," as his
His Lordship-That would be bad French. Mr. Slade-No, My Lord, it would be very good French.
His Lordship-The French for "as well as would be tel que,
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Mr. Slade read the French declaration and translation as appearing in the Hongkong Government Gazette of the 9th March. It
was: -
En général tous les objets destinés à la guerre sur mer ou sur la terre, de même que le riz, les vivres, et les chevaux, bêtes de sommes, et autres pouvant servir dans un but de guerre et si elles sont transportés pour le compte ou à destination de l'ennenii."
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Generally, everything intended for warfare by sea or land, as well as rice, provisions, and, horses, beasts of burden and others which may be used for a warlike purpose, if they are transported on the account of or are destined
for the enemy."
This point regarding translation was discussed at some length. Mr. Slade said that all articles were unconditionally contraband if destined for war-rice, horses, etc. All beasts of burden were contraband, but other beasts were only con- traband if destined to the enemy. Such was the decision of the Russian Prize Court in the case of the American 8.8. Arabia, brought to Vladivostook to be dealt with. Their in- structions were to confiscate all food-stuffs as contraband.
Hon. E. H. Sharp-We have not got that judgment. It was decided before the Arbitra- tor not to refer to any casual case.
Mr. Slade read from the Hongkong Daily Press of 22nd ult. an extract from the formal protest made by the American Government against the Judgment of the Prize Court in
the drabia case.
that there was no evidence before them to show Hon. E. H. Sharp objected on the ground that the goods in question, railway material and
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[Novembor 14, 1904. flour, were not destined for Japanese warlike purposes.
His Lordship said they were drifting from the point: the correct translation of de meme que. Mr. Slade said the meaning of the Russian declaration was that when they found neutrals Japanese they would seize them. employed in transporting certain goods for they had a right to or not was another question. His Lordship remarked that in each case invalid by the Russian Prize Court ? they were to regard as invalid all things found
wag
Mr. Slade That is so.
Whether
case
Continuing, Mr. Slade said that the prize courts were the administrators of the law of the country; they were the authority. It was fo the prize court to interpret Interna- tional law as applied to the case of every vessel they were called to decide, on. belligerents declared to be contraband; what- Whatever the ever they declared, no matter how outrageous, bound all the world for the time being. What His Lordship had to decide in that Party, having regard to the circumstances the right construction of the Charter
into. at the time the Charter Party was entered He must look at the Charter Party as a whole to apply the true meaning to it; not at a part of it only. That Charter Party as a Japanese for lawful voyages to certain parts of whole was the charter of a Norwegian ship by the world-practically the whole of Asia, excluding interport Philippine trading and ports north of Vladivostock-to open ports only. The Charter Party had a clause in it-the usual clause--regarding the avoidance of arrest and restraint by princes and rulers of people; and it was not to be cancelled in the event of war being declared. It was also agreed in the clauses that the
responsibility fell on the Captain to sign bills of lading, though the Charterers were responsible for short delivery-that was, with the exception of valuable goods, treasure and opium, for which bill of lading. The fact of the ship having to the Captain or Chief Officer should sign the sign bills of lading gave him the control and responsibility of the ship, and if the ship was seized the ship would suffer. The Captain, therefore, had to be very careful not to
The
It would have been the duty of the Captain to refuse all articles carry contraband.
declared A8 contraband by Russia. intention of the clause relating to "Princes and rulers of people" was to protect the ship from being captured and sent to the tender mercies of a Russian Prize Court." The parties agreed to this clause being put in: not to carry contraband; the primary object was to free the ship from liability of capture. His argument was that it would be unlawful for the Master to accept contraband or the Charterers to put such on board, if it would incur risk of detention to the ship. And if this clause was put in on behalf of the ship-owner it was the Captain's duty to refuse contraband. When Russia declared any article as contraband it was contraband till a repudiation was repudiated authoritatively. Until it was repudiated it was the duty of the ship-owner to refuse to take on board cargo which would make the ship liable to detention. These goods--rice, etc. were declared contra- ship before a prize court, retain her, and per- band by Russia. The Russians would take the haps confiscate her. She would certainly have
been brought to Vladivostock and retained.
by the practice in vogue in Russia
His Lordship-Not by International law, but
Mr. Slade-She would render herself liable to be retained by "Princes and the rulers of people."
To-day being the King's Birthday, the case o'clock. was adjourned till to-morrow morning at eleven
Thursday, 10th November.
IN ORIGINAL · JURISDICTION.
BEFORE SIR H. S. BERKELEY (CHIEF JUSTICE.)
OSAKA SHOBEN KAISHA v. OWNERS OF 8.8.
PROMETHEUS.”
declaration meant as absolute contraband all Mr. Slade, resuming, said that the Russian foodstuffs consigned to Japanese ports. The
This case was continued
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