28
THE HONGKONG WEEKY PRESS AND
[January 13, 1906.
Mr. Pollock-The fact is that the Paul Beau | comparatively large in one port and compar- | along been 1egistered in the names of the ( om- is a French steamer.
tively small in another.
Mr. Slade French law can be proved in Court in the same way as other facts, by evidence.
His Lordship-Everything varies according to the part you go to.
Mr. Pollock-The Paul Bean was registered in France, and again at the French Consulate in Canton.
His Lordship-Directly she comes into an English .ort she is under English law.
Mr. Pollock-Not under English law as regards the master.
His Lordship-You are not going to contend that a French ship carries French law about with her for all purposes?
Mr. Pollock-No. But I sy that a ship must be governed by the law of the flag. It is not a question of jurisdiction, but of what law the court ought to enforce in reference to the ship.
Continuing, the speaker said :---Dealing with the question as it bad to be dealt with, on English law, he thought he should establish to His Lordship's satisfaction the fact that the ship was liable in spite of the charter. There were cases where a charter could preclude persons who supplied necessaries from proceed- ing against a ship, such as when he had a knowledge of the charter and gave credit to the charterers. Another case in which the "material" man was debarred of a remedy against the ship was when in the interval between the contract for supply
of necessaries and the date when he forces his action in rem, the ownership has changed hands. With these two exce:tions the "material" man had a right against the ship in rem, and turns it into an actual lieu by causing the ship to be arrested. The defendants admi'ted there had been no change in the ownership of the vessel between the time when the goods were supplied and the date of seizure in this action.ship in this port The mere fact of the charter, and of the officers and crew being in the service of Trevoux and Co., was not sufficient to release the ship from liability. With regard to the claim for wrong. ful arrest, such could not be entertained by the court unless it was proved to have been done maliciously and with a reckless disregard for the rights of others.
Evidence was beard in support of the plain. tiffs' claim, and then Mr. Pollock opened his defence. He submitted that the plaintiffs had made out no case at all because, from the facts as pleaded by the plaintiffs in the petition, and as admitted by the defendants in answer, it was obvious that the law which should have been applied to the question was the French law. His learned friend said they should have pleaded the fact that this case was governed by French law, but he submitted that was quite unnecessary because they did not rely upon any proceedings which were taken in any French court, or before any tribunal. From the allega- tions in the petition and the answer, and it appearing from the petition that the ground upon which the liability was based was the ground that a certain agent ordered coal as agent for the owners of the steamer, it appeared alearly that the law which should be applied by the court to determine the question was the French law.
His Lordship-Are you going to press your point, Mr. Slade ?
Mr. Slade-Certainly, my Lord. I'm as ignorant of French law as the babe unborn.
His Lordship-It is a matter of law, then, and it would be convenient for Mr. Pollock to open up his point.
Mr. Slade I have been taken entirely by surprise, my Lord.
His Lordship-At present I am taken by surprise too, but it would be convenient to hear Mr. Pollock.
Mr. Pollock-My point is much deeper than has yet occurred to your Lordship. On the plaintiffs' allegations it is quite obvious that if they are going to bring the owners in and make them and the ship liable, it ought to be apparent to them that French law is applicable.
His Lordship-Why ?
Mr. Pollock-The law says so I will quote authorities.
His Lordship-You have first got to satisfy me the French law is applicable
His Lordship-I cannot see how a contract made on behalf of the owners of a ship in this Colony can be governed by the law of France, Say the owners made a contract by post with the Sam Hing firm, the law governing that contract would be very different from that governing a contract made by the master of the
Mr Pollock-The cise must be determined by French law seeing the status of the ship and the locuments under which she is registered.
His Lordship-If the ship is liable, the case must be governed by English law, not by the law of rance. Supposing goods had been supplied to a ship in distress, and Hongkong suppliers brought an action in rem for necessaries, you would not set up the law of the French flag, but English law.
Mr. Pollock-But French law must be applied as to the status of the ship.
His Lordship-I don't know where the status comes in. Directly a ship comes into English waters in such a case as the present she is likely to be seized for an action in rem.
Mr. Pollock-The law to be applied should be the law of the flag, and as no evidence has been given as to that law, I submit the plaintiffs are not entitled to succeed.
His Lordship-At present I am against you on that point, but will reserve my decision.
The case was adjourned.
Tuesday, January 9th.
IN ADMIRALTY JURISDICTION,
Before Sir Francis PIGGOTT (CHIEF
JUSTICE).
RAM HING V. S.A. “PAUL BEAU." The case was continued in which the Sam Hing firm, coal merchants of 28 and 30 Pottinger Street, sued the 8.8. Paul Beau to recover the sum of $5,390.60 due for coal supplied on the credit of the said steamship.
Mr. M. W. Slade, instructed by Mr. C. DĮ Wilkinson (of Messrs. Wilkinson and Grist), appeared for the plaintiffs, and Mr. H. E. Pollock, K.C., instructed by Mr. M. J. D. Stephens, represented the defendants.
Before Mr. Pollock continued his address in defence, His Lordship said he supposed there could be no doubt, in the case he imagined yesterday, of th coal being ordered by the owners by post, that the remedy would be an action in rem. There could be no question
about that.
Mr. Pollock-There is jurisdiction in rem for necessary supply to a ship.
His Lordship-Not necessary supply, but by order of the master, I mean.
Mr. Pollock-That is my point, my Lord. The plaintiffs admit that the Paul Beau is a French steamer, and that she was during the Mr. Pollock-The case of the Ripon City period relative for the purposes of this action was the case on which my learned friend parti- employed between Hongkong and Canton. At onlarly relied, and the master's claim to a lien in the material time Kwok Yick Ting was agent that oase arose under special statutory provision. in Hongkong for the owners of the Paul Beau | He is given an equal lien in respect of disburse- and it is on that ground that the plaintiffs restments properly made on account of the ship, as their case. My friend quoted certain authorities he has for his wages. Your Lordship will find with a view to persuading your Lordship that if such were the case the ship would be liable according to English law. My point is, that whether it is a question of whether or not an agent for the owners of a foreign vessel has authority to bind either the owners or the ship, such question must be determined by the law of the vessel's flag. It would be hard on the owner of a vessel if the master's authority should be
|
that the undercurrent of all the learned judges' observations in this case was that having regard to all the circumstances it would be a gross injustice upon the master who had made disbursements on account of the ship not allow him to enforce his statutory lien, given to him by the Merchant Shipping Act, against the shipper. With regard to the question of registration, the Paul Beau has all
to
pagnie as owners, and Messrs. Trevoux appear as armateur, that is the person who equips the ship, fits ber out and works her. In the case before your Lordship the facts are very differ. ent from the one raised as to the order for cost having been given by the master. The order was given by a man called Kwok Yick Ting. This man said he believed at one time that Trevoux and Co., whose servant he was, were he real owners of the ship; but he afterwards had reason to believe that his first impression was a mistake. This is not a question of enfore-A ing the provisions of the Merchant Shipping Act with regard to a master's lien for disburse ments-it is simply and solely a question of agency. The coil was ordered by Kwok Yiok Ting and there is no question of his disbursing any money or of enforcing any claim for disburse ments. No money has been paid out and these coals have not been paid for.
His Lordship-As far as I understand, Mr. Slade's argument on the Ripon City was not so much that the present case was on all fours with it as that certain principles were laid down by-Mr. Justice Barnes when discussing general- principles.
Mr. Pollock--I submit that the circumstances are such that the owners of the ship would be liable to an action at the suit of the "material" man at common law except that in that class of case the "material
.cannot. proceed against the ship in rem for necessaries.
His Lordship-That is apparently in conflict with the principle which Mr. Justice Barnes laid down.
man
After considering the further authorities quoted by Mr. Pollock, his Lordship decided to admit the arguments on French law if necessary by ordering them in the pleadings, but said that Mr. Slade woud have the right, if any- thing transpired, of asking for an adjournment to consider it.
Gaston Liebert, French Consul, was then examined. He said that according to French law
a ship could not be seized for debts incurred by the armateur or his servant.
Cross-examined-The armateur covered ohar- terers of ships of all kinds, no matter what the charter party might be. A French ship could be registered in France, a French Colony, or in a foreign country in & French Consulate.
His Lordship reserved judgment.
Wednesday, January 10th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
MISTRANSLATION IN À CHINESE WILL. An application, arising out of au sotion between Wong Shee (widow of Ng Kwai Kwong, deceased) and Ng Chi Wai and others, was made regarding the division of deceased's property.
Mr. Pollock said he appeared for all parties except the deceased's infant grandson, Ng Ping Wong, who was represented by Mr. H. G. Calthrop.
The case had been discussed in Chambers, but was taken into the Court in order that argument might ensue as to whether Wong - Shee, as trustes and execatrix, had power to divide the residue, personal estate, eto, of deceased; and as to who were the persons entitled to such, in what shares and proportions, and how the costs were to be borne.
Mr. Pollock stated that when the will was first laid before him he was doubtful as to a certain point in the translation. He found his doubt confirmed on investigation, / and would call evidence to clear the mattor up. Under the will the three sons, on coming of age, were to assist in the management of the business left by deceased. Counsel submitted that the word
management" was therein mistranslated. It meant that the three sons were to enjoy the business beneficially not only to manage it, a
Mr. Li Hong Mi, Supreme Court Interpreter, and the court translator gave evidence in support of Mr. Pollock's contention.
Mr. Polloak pointed out that one of the sons, after attaining his majority, died, lesving widow and infant son.
After further argument, the Chief Justice decreed that under the true construction of the
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