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May 14, 1906.)
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CHINA OVERLAND TRADE RÉPORT.
14 Hond The Paisne Judge-This is simply an appeal
her course to the north through an angle of 90 Mr. Sharp-I think it is unnecessary to read degrees. She was wrong as to her speed, but the whole notice of appeal setting out the effect why was she wrong in this? The reason of that decision. We asked that that deciklon be given by her master was sufficient : He rescinded, and we ask that the original order wanted to anchor in Hong Hai Bay during dated 10th April committing these men to the dense fog. The navigation of the ses is prison be annulled and that the committal itself free; there is nothing to prevent a ship taking | be discharged and that the appellants be this course if she so desires, even though she released. crosses a regular track of stemmers, so long as she complies with the regulations. In ordinary of the road. In a fog she must comply with the weather day or night she must obey the rule
fog rules. There are no imposed save good seamanship. Putting all other precautions questions on one side as to whether the "Brand" was whistling, the "Kotobira Mara" did whistle and the attraction in the sound of her whistle should have been sufficient warning to any ship coming down the regular track. Alter the circumstances very slightly sad this becomes quite clear. Supposing the "Kotohirs Maru had suddenly discovered Pedro Blanco abend of her she might have altered her course, as she in fact did, and what other signal could she have given than that of whistling, as she in fact did? The “Kotohira Mara" has admitted herself to blame on account of her excessive speed. The Court, for the reasons above given,
is of opinion that the "Brand" is also to blame. Judgment will therefore
+
be entered in the terms of the "Kotohirs Maru's" counter claim. The Assessor desires me to add on his behalf than the engineer of the "Brand was greatly in fault for not reporting to the bridge, his inability to carry out the order "half speed ahead" as soon after he received it as possible. He also wishes to point out the immense importance of all ships being supplied with speed tables corresponding to revolutions. In these remarks I concur.
His Lordship I think judgment in terms of the counter claim express the result of the judg. ment, the damages to be assessed by the Regis trar. I don't think any special order is made.
by the article. The question for the Court was, whether the "Brand" was not on the showing of her own officers also to blame. The first point to be decided is how, in the circumstances detailed, the second paragraph of Article 16 is to be applied. Putting the whistles on her quarter on one side the "Brand" heard the fog signal of a vessel forward of the beam. This was the position of all the whistles after the "Kotohira Maru" had passed her beam down to vessel had been ascertained it was the duty of and including the last. Until the position of that the "Brand" to stop her engines; and then, i.e., after stopping her engines, to navigate with caution until danger of collision is over.' Was the position of the “Kotobira Maru' certained ? The learned counsel for the "Brand" contended that it was, because the whole series of whistles beginning with those on the port quarter showed that the Kotohira Maru was on a parallel course, and that as they were heard one, two, three and four points on the "Brand's" bow he had ascertained her position, which was, so the master concluded, right ahead continuing the parallel course on to Hongkong. This ignores the fact that the last was a louder whistle. I think as a matter of construction that that Article 16 requires that the position of the other vessel should be ascertained at each whistle, and though it is possible that that position may be correctly as certained to be on a parallel course continued out of hearing by observing a series of regularly increasing and diminishing whistles, directly the sequence of sounds which would result from such a parallel course is interruppted it is the duty of the vessel hearing them to comply with the requirements of the Article again, as if the new sound were a first whistle, i.e., she must stop her engines until the posi- tion from which it comes is ascertained, and then navigate with caution until the danger of collision which had again arisen is again over. From the point of view of seamanship the Assessor agrees with this interpretation of Article 16: and indeed it would lose its meaning if it were not so. i then put these questions definitely to the Assessor: (1) Was the master of the "Brand" justified in concluding that the extra loudness of the last whistle was due to the wind or from any other cause so as to justify him in not complying with the article? His answer is no. It is indeed impossible to imagine any other answer possible, for it cannot be conceived that a master of a ship should make an error of judgment in such an important matter and not take the consequence if a colli. sion ensues, there being no train of ciron mstances to excuse him. The case of the “ Dordonga " would not warrant such a proposition, bat practically the opposite. (2) Was it the duty of the Brand on hearing this louder whistle to stop her engines? The Assessor's answer is yes. (3) Ought the master to have assumed from the fact of this louder whistle being heard that there was danger of collision r His answer is yes. (4) Was the order "Half speed ahead" consistent with cautious navigation in the circumstances? The answer is no. (5) Did the "Brand's "engines in fact go at half speed ahead, or did she continue at her speed of four knots? The evidence is not very satisfactory on this point, but the Assessor is of opinion that the speed was in fact increased, though to what extent the evidence does not enable him to say. The Assessor is of opinion further that in the circumstances the order "half speed ahead" was wrong owing to the density of the fog, irrespective of the last and louder whistle. The defence of the "Brand" is that she was an overtaken vessel: that the Kotohira Maru" was the overtaking vessel, and that as she was passed and clear, on the master's assumption, the “Brand was free to alter her course and speed. Assuming Articles 21 and 24 of the regulations to apply the error of judgment with regard to the last and loader whistle would of itself show that the defenco was bad. But, and as to this it is hardly necessary to refer to authorities, the directions of Article 16 are to be complied with in a fog: and they cannot be read together with Articles 21 and 24, for these articles imply that the vessels are moving in their ordinary course and are in sight of one another, whereas Article 16 specifically enjoins stopping and navigating with caution. It was said that the "Kotohirs Marn” was in the wrong in suddenly altering
11
Mr. Sharp-I think so. I think we are entitled to the judgment which your Lordship has given now. We admitted that the “ Kotohirs Maru" was partly to blame, and the plaintiff has continued the action for trial for the purposa of proving that the
"Kotobira Maru solely to blame. The plaintiff is now liable for costs from the time of the date of our admis sion which is contained in our first pleadings in answer.
Was
The point having been argued by counsel, His Lordship entered that each party were to bear their own costs up to the date of the admission, after that the costs to be "Kotohira
Maru's,"
Mr. Slade then applied for a stay of execution.
the motion was in exactly the same terms as the against the commitment of these mea
Mr. Sharp-Yes. Continuing, he said that
the jurisdiction under which those men were previous motion. It was important to consider committed. That jurisdiction was contained in section 31 of the Supreme Court Ordinance 1878, which stated that “ it might be lawful for the Court to direct a prosecution" against a - might commit such witness as for contempt of person committing perjury or that the Court
Court or fine him. They submitted, with regard to that section, that the phrase "it appears to the Court" must be taken to be the equivalent of "it judicially appears to the Court" : that in to say, it appears to the Court after the judicial enquiries are conducted. There was observance of the essential principles on which
one other phrase on which he thought it necoszary
comment-“ 15 tempt of court". That, they submitted, meant for GOD-
that the jurisdiction contemplated was the same as jurisdiction for contempt. He thought he was right in saying that such a jurisdiction there contemplated could be exercised in the event of contempt.
to
The Chief Justice- I thought you were disposed to say before that the words were almost superfluous.
We
Mr. Sharp-Ob, no. That is why we gave your Lordship authorities under contempt. have to rely, so far as cases go, on contempt, is no jurisdiction as this in England as applied because for the very excellent reason that there
to perjury. We thought there might be subh a jurisdiction in India, but on looking we find that there is not—at least we cannot find it.
in England once upon a time.
The Chief Justice--There was a jurisdiction.
Mr. Sharp-We relied upon contempt cases because we considered the jurisdiction given was that jurisdiction. I think we said to your Lordship it was not contempt. Proceeding, be submitted that the commitment was bad upon the grounds stated in the motion, The first ground was that the prisoners were not told by his Lordship, the Chief Justice, what statementa made by them respectively constituted the alleged perjury. The second ground was that an opportunity was not given to the prisoners of being heard in their own defence. After
His Lordship gave liberty to apply in referring to statements in his Lordship's judg-
ohambers.
Tuesday, May 8th.
IN APPELLATE JURISDICTION
BEFORE THE Full Court.
THE ALLEGED CONSPIRACY CASE.
Justice (Bir Francis Piggott) in the case of An appeal from the decision of the Chief the seven witnesses who were sentenced to three months' imprisonment by his Lordship for perjury in the hearing of the trial of an issue to determine whether Wong Ka-cheung was a partner of the Lai Hing Bank at the time of its bankruptcy was commenced. It will be remembered that an appeal against the decision and an application for the release of the wit- nesses were made before the Chief Justice few weeks ago, but his Lordship dismissed the appeal. The present action was an appeal to the Full Court against that judgment. Mr. E. H. Sharp, K.C., and Mr. H. E. Pollock, K.C., instructed by Mr. Brutton (of Messrs. Brutton and Hett), appeared for the appellants. Mr. SharpThis is an appeal from the judgment of his Lordship the Chief Justice delivered on 24th April last.
a
The Chief Justice—I see the seven men are present.
Mr. Sharp-Yes.
The Chief Justice—I must ask formally so that it will appear on the record. Have you, Mr. Bailiff, any news of Wong Tee?
Mr. Howell-He is not in the Colony, my Lord.
ment, Counsel submitted that it was a funda- mental and invariable principle of English law that no person could be punished until he had been given an opportunity of being heard on his own behalf. And this principle was not confined to criminal matters. The law would not permit any person to be injured by any judicial or quasi- judicial proceeding on his person or his property without being heard. Especially should that princiule be observed in such a case /as, the present, in the cass of witnesses charged with committing perjury in their evidence. · Such.a case was for obvious reasons stronger than a case of contempt committed in open Court. A probably about when the evidenos was given witness was not a party to thủ cảm: he was contrary to the evidence in which he is alleged not know on what evidence he was committed. to bave committed perjury. Therefore he did
It was not necessary to say what defence those men would have presented, but he submitted they had a clear right to be heard. He would now ask their Lordships' attention to a few authorities, in support of the propositions which he submitted.
c. (
The Chief Justice The question which puzzles me is as to how it is to be carried out.
Mr. Sharp-I don't say how it is to be done. They must have the opportunity of being heard. The Chief Justice-What is the procedure to be followed P
Mr. Sharp mid he was not - prepare indicate the procedure, and explained that it was their intention to carry the appeal to the Privy Council.
The Chief Justice--We know you are think- ing of it.
No comments yet.
Private notes are available after approval.