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gave evidence may have been on board or he may not; he may have appeared at the moment of the collision and imagined all these things, while the chief officer of the "Kwong Tung only came out to get coffee in a casual sort of manner, Another thing I should like to mention is that we get evidence from engineers. What were they doing on deck when they ought to have been down
in the engine room? It appears to me that there is great slickness of discipline on these ships. Both engineers got iu the box and gave evidence to the effect that they went on deck to look round; they ought to have been below to answer the telegraph. One said he went down and came up again to look at the collision-a sort of sight-seeing.
His Lordship As the law would be the same whether the Tai On" had passed or was passing, and whether it is the rule that you may not contradict your Preliminary Act, it applies to the extent that you must prove you passed as alleged. The other point is that there are three or four allegations of fact, one of which proved material to the collision, whether the fact that you have not proved the others brings you within the application of that rule.
Mr. Slade-Is there not another point which arises on your Lordship's findings ? Your Lordship found that the collision was caused by the "Kwong Tung" increasing her speed, and also caused by the "Tai On" not keeping o clear. Surely, my Lord, a serious question will arise on that, because if the Kwong Tung" had not increased her speed the "Tai Ou" would have gone clear. That is a very material point, and can the Tai On" be held to blame ? She was evidently put into the position she was in by the wrongful act of the "Kwong Tung."
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His Lordship-You will find that point shadowed in my judgment. I shall have no objection to it being argued because it certainly arises, but I think it arises in connection with the first point. All the way throngh I have had that report in mind: Adjourned sine die.
Wednesday, February 7th.
IN PROBATE JURISDICTION,
BEFORE SIR FRANCIS PIGGOTT (CHICF JUSTICE),
A JUDGMENT WITHDRAWN.
In the matter of Cheung Kan-sin and Cheung Choi-fat.
His Lordship said that in this case judgment was given for default of appearance about a week ago. The Registrar had since pointed out to him that the procedure traced out in the code did not warrant judgment being given. therefore, that judgment must be withdrawn, and an order made for a further hearing. This seemed to be a rule very rarely applied, there- fore, at present judgment would simply be cancelled, and the entry would be that the case was struck out.
Mr. Slade-Which, I think, bas the same effect.
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His Lordship-No. The next step is that the d
defendant makes a further application for the cause to be set down again and he is not entitled to judgment till the second hearin. It is very complicated, and the Registrar does not remember a case of the kind occurring here before. The case is, therefore struck out of the cause list. In seven days the defendant will make a second application. This will be set down; then he will be entitled to judgment on the second hearing.
IN ADMIRALTY JURISDICTION.
BAM HING v. 8.8. PAUL BEAU.”
39
The case was continued in which the Sam Hing firm, coal merchants, of 28 and 30,Pottinger Street, sued the s.s. 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. D. Wilkinson (of Messrs. Wilkinson and Grist, appeared for the plaintiffe, and Mr. H. E Pollook. K.C., instructed by Mr. M. J. D. Stephens, represented the defendants.
THE HONGKONG WEEKLY PRESS AND
[February 10, 1906/
His Lordship previously adjourned the case I could be no doubt that a maritime liền in order that two points might be more fully exist in the case of the material man, an argued.
never had been one in the Mr. Slade said that with regard to the first necessary supplies. – The Henrique Bjong case, question as to whether or not the Admiralty quoted by Mr. Slade, was very useful in Act of 1861 in any way affected the decision showing that the material man had not a lien of the Henrique Bjong, he submitted. that it on a ship, and that in consequence of a part did not. The decision in that case was given owner having sold his interest in a ship, the under a section of the Admiralty Court Act claim of the material man was defeated, Lord of 1840), which dealt with necessaries, and the Watson showed most clearly the comparatively effect of that decision was merely to bring into weak position occupied by the material man lice the decisión as to the effect of the two who could not succeed with an action in rem sections in the two cts of 1840 and 1861, unless at the time of its institution the because, shortly after the passing of the second the property of the debtor. As a
a matter of Act. it had been decided that that section gave fact the present res, the Paul Beau, never was no maritime lien, and the effect of the en- the property of Trevoux and to., whose agent rique Bjong case was merely to correct an ordered the coal His Lordship should bear erroneous impression which had been acted upon. in mind that from one of the
doon. The comparative words of the two sections of the meats put in it appeared that in November, two Acts were almost the same that the court 1904, all previous documents with reference should have jurisdiction. The effect of the two to the working of the ship between the Com. decisions was merely to decide, seeing they pagnie and Trevoux were absolutely cancelled. were worded almost precisely the same, whether and that this action was not instituted, and the the sections would have the same effect so far Paul Beau was not arrested, until a subsequent as a maritime lion was concerned. The second date. He submitted that at the time the notion Act of 1961 appeared to have been passed be- was instituted Trevoux, the debtor, had not cause it had been decided under the earlier Act merely got no rights as owner of the Paul Beau, that noction in rem could be taken against a but no rights at all, as any previous existing British colonial ship. It was held in the contract rights had by mutual consent been working of this Act that "foreign meant ended. If the persin by whom or on whose strictly foreign, not British; not, as so often behalf the liabilities to buy necessaries were happen in our laws, foreign mans not English. being created was not at the time the action was To rem dy that the second Act was passed; instituted the owner of the ship, there was no this did not in any way conflict with the other, remedy against the res. He submitted that the but extended its operations. The construction whole question rested on the question as to put up n the second Act by the Privy Council in whether there was property in the debtor at the the case of the two Ellens, Law Reports, 4 P.C., time of the institution of the action, and they was that this Act, for reasons therein stated, contended that there was not a vesture of conferred no maritime lien at all. He referred property in Trevour at that time. They to that decision because the previous section of also contended that the question of agenoy came the Admiralty Court Act. 1861 was also deal in. There was no liability on the part of the. with therein. Section 3 gave jurisdiction for res to be arrested unless the person who ordered any ship; Section 5 was coufined to any ships, the goods was the agent for theowner ofthe ship. British or foreign, whose owners were not domiciled in Englaud or Wales.
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With regard to his Lordship's second question as to whether such a lien could exist in the case of any person other than the master, Mr. Slade submitted that it could, and proceeded to quote authorities in support of his contention. The part owners of a ship, he said, were not partners but tenants in common. This being an action in rem against a ship, a creditor could look to the ship, seize it, get his money out of it and leave the various part owners to decide the diff erence between themselves,
His Lordship-If anybody happens to be the owner of a ship, orders goods which happen to be necessaries then there is an action in rem? Mr. Slade On that principle the ship has been benefited by what has been done.
His Lordship No such thing is recognised anywhere. A peculiar thing in the Admiralty Act is that masters, not owners, pledge a ship. Mr. Slade Not the master only, but any agent, owner or part owner.
Mr. Pollock suid it seemed that his learned
friend had really not attacked the main difficulty in his case. That was the question as to evidence clearly showing that this coal was not order d by the agents for the owners-the Compagnia for short; whether any claim could be substantiated against the vessel, the persons who ordered the coal not being the agents for the owners. That was the initial difficulty which his friend had had to contend with all along, a difficulty with which he certainly very ably contended, but Mr. Pollock still submitt that he had not brought before his Lordship any satisfactory or sufficient authority to show that the vessel could be held liable. It was for Mr. Slade to establish that the Paul Beau was
•
[iable, and if he failed to prove that. judgment must be for the defendants. He thought a very important point for his Lordship's onn- sideration was as to whether a maritime lien was created, because, no doubt if it was it would attach to the ship at the very moment the necessaries had been supplied. There was no doubt that a maritime lien did attach there and then at the immediate moment circumstances arose which created it. There was a great distinction between a maritime lien and the right to bring an action in rem. A maritime lien operated there and then as a mortgage or charge on an instrument, while in the case of an action in rem no right existed whatever until a' ship had been arrested in an action. There
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His Lordship-Mr. Slade contends that the right which may be enforced by an action în rem can be enforced against the ship irrespec- tive of the charter. You maintain that pro- position, substituting for "maritime lien," the right to bring an action in rem.
Mr. Pollock---That is so. The whole of my learned friend's argument is that they don't care about the owners or charterers; the goods were supplied to the ship and she is liable.
Mr. Slade said the reason why it was so difficult to find authority on the subject of necessaries ordered by agents other than
masters of vessels, was that as a rule the agent of a vessel in a foreign part, was provided with funds, purchased the necessaries from the material man, provided the ship and then looked to the owners. Such was the ordinary course of business, so that in consequence of that, cases where rights of persons against a ship other than the master had comparatively in seldom arisen. Their right-the right of the material man-arose because the necessaries were ordered from him by a person deriving his authority from the owner directly or indirectly. What happened in this case was that the owners put Trevoux into some sort of position with regard to the ship, therefore, he was the person having management, and bis
authority was deriv, d from the owner.
His Lordship-Do you say the charterer has any authority, direct or indirect, from the owner?
Mr. Slade-He is put in possession of the ship by the owner. This point meets my friend's argument that it is on us to establish an agency. We do, and it is for them to displace it His Lordship-Their doctrine goes further than that, and you could not dismiss it.
Mr. Slade-No, my Lord, it would be very difficult to dismiss it. I would suggest that what would displace it would be if the material man knew of the charter-party, Then he would not be in the words of the act supplying necessaries to the ship, but to the charterer.
His Lordship reserved judgment.
IN SUMMARY JURISDICTION CO
BEFORE ME. A. G. Wise (PUISNE JUDGE);
WHO WELE THE SUPPLIERS The Kwong Wing-tai sued the Kung Wou to recover $149.83 due on 49 crates of dry s persimmons.
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