324
effect of striking a still object at an angle of about forty-five degress would not necessarily cause that object to bend to port. He did not think the twisting of the Brand's" bow and plates to starboard was caused by the speed of the "Kotohira Maru ". The angle of the cut was about 45 degrees, and the cut was about 20 feet deep. A ship of the class of the "Brand" stopping her engines at six knots would not do more than three knots in 25 minutes before stopping, and in seven minutes she would take from a minute to a minute and a half to get from slow to half speed. When they received this order engineers generally put on the indicator to full speed and then reduced. It would take 25 to 30 minutes to clean a fire, and if the coal was not of good quality the steam would go down quicker. Witness had seen 30 or 40 damaged ships, and from his experience be concluded that the "Brand" must have been travelling at more than four knots when the collision occurred.
His Lordship-If the "Brand" has forced draught, full speed could be got up from ten to fifteen minutes.
Captain Arachi, recalled, said he heard a whistle from the "Brand" at the same time as he saw her light. He thought the "Brand" star- boarded her helm before striking his vessel. He saw the "Brand" before she was repaired her stem was knocked over
to starboard and her port bow smashed in. After the collision witness stopped his engines and sent his Chief Officer on board the "Brand", He intended to sound because he was going to anchor. During the last ten minutes after altering his course his whistle was sounding regularly, because he knew he was crossing the course of any vessel which might be going up the coast. He did not abserve any change of wind before the collision, in fact there was very little wind, it was nearly calm.
Cross-examined-Witness went to his cabin about 12 o'clock, and left instructions with the officer of the watch to call him if anything an- common happened. After four o'clock the officer reported a whistle on the starboard bow. The captain ordered him to take the bearing of the other vessel carefully.
THE HONGKONG WEEKLY PRESS AND
The Court decided as follows :— The Chief Justice-The arguments on both sides were almost too learned for the case to carry, now we know the exact conditions of the con- tract as translated by the Court translator at the close of the case. The condition of things which was to result from the payment of the quarter of the purchase prios was, speaking for | myself, very difficult to understand, but it afterwards appeared that the business was to be carried on at the purchaser's charges and risk as from that date. But the right to control the printing and publishing of the newspapers was not to pass into his hands till the actual com. pletion of the contract by the payment of the balance of the price. What happened when the one fourth was tendered was to my mind this: The purchaser misc nstrued the meaning of the transfer of the business to him and went, if not exactly vi et armis, at least with his staff, to take up his position of proprietor and printer. If his action had rested there, and if all that happened on the subsequent day had been a determination of the contract by the vendors, I should have hesitated to hold this a repudiation by the purchaser involving a forfeiture of the deposit. But the learned Judge who tried this case was of opinion that he did intend to repudiate, and this of itself would have debarred me from coming to such a conclusion. Apart from this considera- tion, however, the relation in the case as to what happened on June 5th at the meating of the vendors, at which the purchaser was present and their subsequent decision after he had left, seems to show clearly that the discussion mast have been renewed and that the purchaser insisted on the erroneous interpretation of the contract. Even therefore, if the case were one in which I should be justified in reviewing the learned Judge's finding of fact, I should agree with that finding. I am of opinion that the contract remained uncompleted solely through the fault of the appellant. The appeal must therefore be dismissed with costs.
The Puisne Judge-This action was brought by the appellant (then plaintiff) before me in Summary Jurisdiction against the respondents (then defendants) for 31.000, being as to He had a printed copy on board of the articles 8500 thereof for the return of money for the prevention of collisions at sea. Several deposited by the appellant on June 2nd in whistles were heard from the time of the first part payment of the Sai Kai Kung Yik Po whistle on the starboard bow until the other Company, Limited (which is a newspaper com- vessel was abeam. He did not go on deck topany), contracted to be sold by the respondents ascertain her position. Japanese vessels were to the appellant, and as to the balance of $500 required to steam at a moderate pace in a fog, for damages for breach by the respondents of take the bearings of other vessels in the the said contract. I decided in favour of the vicinity and navigate accordingly. He was respondents on both items, and the appellant running at eight and a half knots because he has accepted my finding on the second item, and saw no other vessel; he considered this a is only appealing on the first. The question moderate speed for the China coast, but if came before the Full Court on a special case vessels were crossing the steamer track it stated by the parties, and so far as this Court is would be a little quick. This voyage was an
concerned it is confined to the statements in unlucky one for his ship. He had another that case, collision just after leaving Nagasaki. Witness knew the English and Japanese regulations for the prevention of collisions were the same; foggy weather it was necessary to sound a long blast at least every two minutes. Were his vessel stationary in the open sea he would blow his whistle twice every two minutes. Before altering his course just prior to the collision he began to sound his whistle. He did not go back on his course to go under the stern of the "Brand."
Thursday, May 3rd.
IN APPELLATE JURISDICTION.
BEFORE THE Full Court.
THE SALE OF A NEWSPAPER.
in
This was an appeal from the decision of the Puisne Judge in the case of Tam Man Sam v. Tam Yau and Cheung Sau-pang, the original action being a claim for $1,000, $500 for return of money deposited by plaintiff with defendant on 2nd June, 1905, in part payment of purchase money for the business, property and effects of the Sai Kai Kung Yik Co., under contract, and 5500 for damages for breach of said contract, Mr. H. E. Pollock, K.C., instructed by Mr. C. E. H. Beavis (of Messrs. Wilkinson and Grist), appeared for appellants, and Mr. M. W. Slade, instructed by Mr. Stevenson (of Messrs. Deacon, Looker, and Deacon), appeared for respondents,
|
man.
The facts are shortly as follows:- The respondents are the liquidators of the said newspaper business, and were desirous of selling the same. Tenders were asked for, and the appellant's tender of 89,270 was accepted, sub- ject to his previously depositing $500, which he did on June 2od. An agreement was entered into between the appellants and the respondent which contained, inter alia, the following clause : "The purchaser (that is, the appellant) must pay one fourth of the price before three p.m. on June 4th or 5th (that is, within 48 hours) before the profit or loss of the business of this company and the expense of all descrip tions can be taken over by the new It is decided that if the successful purchaser has first actually paid one fourth of the price including the deposit money for the tender within 48 hours, the remainder of the price shall be paid and the transaction complet edwithin ten days. If the transaction be not completed) within due time all sums that have been paid shall be forthwith wholly forfeited. As regards the rights of printing and publishing, the same shall not be made over until the transaction has been completed". As I read this agreement the meaning is that after payment of the deposit the appellant had to pay one fourth (less deposit of the purchase money by three p.m. on June 4th, and that he had ten days within which to pay the balance. That on payment of the one fourth, less deposit, the business was run at his risk up to the time that the balance of the purchase money was paid, and that on the payment of the balance ho then became entitled
(May 5, 1906.
to possession. There is also the forfeitur clause I have read. The appellant, however, was of opinion that be would be entitled to possession on the payment of the one fourth (that is on June 4th). I decided that his reading of the agreement was wrong, and that portion of my judgment was not in dispute. Acting, however, on his mistaken assumption, the appellant tendered the one fourth (less deposit) on June 4th subject to the condi- tion that he got immediate possession. The respondents naturally objected, and the appel- lant refused to pay a .d left with the money in his pocket. It must be noticed that this is not a case in which a man has failed to pay an installment in consequence of want of money, but a case in which a man with the money refuses to pay unless the contrac: is sitered to his liking. I hold that to be a fit repudiation of the agreement by the appellant. In my opinion the appellant meant to repudiate the contract unless he got his own way, and the respondents were quite justified in considering that he did so mend, and as they say they there- upon considered the matter ended. A night's consideration, however, took the appellant to his solicitors who no doubt acting from in- structions derived from the said erroneous assumption of the appellant as to his rights under the agreement, wrote a letter on June 5th. The effect of that letter roughly stated is that if the respondents did not fall in with the appellant's views that they (the solicitors) would commence legal proceedlugs at once so compel the respondents to complete the sale, and to recover damages which they estimated at $1,000. There was no reply to that, and on June 14th (being the last day under ordinary circumstances for the comp stion of the agreement) the appellant's solicitors agaiu wrote tendering the purchase mou y, less deposit, threatening (in case of refusal) legal proceedings for breach of contract.
The argu- ments before us turned principally on the legai question as to whether in this case ti de was or was not of the essence of the contract; but I prefer to base my decision, as I did at the esring on the broad fact that the action of the appellant was a direct and intentional repudiatio of the ag coment as it actually existed, and an intima- tion that he would not carry it out unless. altered to suit his own ideas. Under these circumstances I think the appeal ought to be dismissed with costs.
IN ADMIRALTY JURISDICTION. BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE) AND LIEUT. MCCALLUM, R.N. (NAUTICAL Assessor).
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8.8. BRAND v, 8.8." DAINI KOTORIRA MARU.'
The hearing of this action, in which his Lordship was asked to decide who was to blam, for the collision between these vessels off Pedro
Blanco, was continued.
Grist (of Messrs. Wilkinson and Gris'). Mr. M. W. Slade, instructed by Mr. E. J.
Sharp, K.C., iustruoted by Mr. John Hast'ngs represented tha "Brand", and Mr. E. H appeared for the "Kotohira Maru."
addressed the Court. In the course of uis The evidence having concluded, Mr. §harp
reference to the sounding of the whistles of address he argued on rule 16, which has approaching steamers at sea in fogs. This rule particularly states that when a whistle is of which cannot be ascertained, it is the duty heard from an approaching steamer, the position of the steamer hearing the whistle to stop. The Court called upon Mr. Blade to argue this point, heard him, and then retired.
objection was fatal to the case of the "Brand", On returning his Lordship held that this and that she was equally to blame for the collision.
The case was then adjourned sine die.
A recent traveller writes':-Hankow bids fair to outrival Hongkong, Shanghai, and Canton one of these fine days, and at no distant time. The railway now completed from there to Peking is certain to bring up and down an enormous amount of goods from the vast interior. As it
now there are few finer Bettlements in China. A fize bund, wide streets, large houses going up 'everywhere; a brisk trade, and more to come,
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