July 9, 1906.j
Lordship had remarked that the learned Counsel for appellants had argued that his Lordship had no right to express an opinion to the jury." He should not like that to go forward to a higher pourt as an expression of their opinion.
The Chief Justice said he took the actual words.
Mr. Pollock replied that they certainly never contended that.
The Chief Justice read his note,
Mr. Pollock disclaimed the note as represent- ing what he had argued. What he said was that his Lordship could not express hims if inj such a way as to substitute his own opinion for that of the jury.
Mr. Sharp agreed.
The Chief Justice altered his note on that point, as well as another as to the question of the jury taking the whole of the evidence.
Mr. Pollock then referred to the appellants' undertaking to pay the costs of that appeal, and said it was the intention of appellants to carry the case further. In view of the possibility of another decision being given, he would submit that that undertaking should be extended.
After some discussion, the Chief Justice consented to the time being extended for a fortnight.
The Chief Justice-Now comes the question whether the Official Receiver will be justified in incurring further expenses unless a meeting of creditors is called and the majority consent.
Mr. Pollcok-Perhaps your Lordship will allow me to make a statement with regard to the disallowance of these costs.
The Chief Justice-The last time that I mentioned the fact Counsel said the matter would be explained by the solicitor referring to his diary. I certainly expected, when the Court assembled, that some reference would be made to it, but the matter has been completely ignored.
Mr. Pollock-Surely we have a right to address the Court?
His Lordship's reply was inaudible.
Mr. Pollock-I think your Lordship will remember we were told your Lordship had made certain alterations in your summing up, and that we were to put in these alterations.
|
CHINA OVERLAND TRADE REPORT.
Mr. Pollock-~I don't think your Lordship has the right to say deliberately.
The Chief Justice-It could not be by mis- take.
Mr. Pollock-Is it not official when it is in print ?
The Chief Justice-No; when it is approved. At this moment a continued outburst of crackers outside the Court building put a stop to all further discussion and their Lordships
rose.
IN ADMIRALTY JURISDICTION
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT).
THE IMMUNITY OF A WARSHIP.
The owners of the junk Tung On Tai and the owners of the cargo laden thereon sued Arthur E. Gove, of the US S. Alexander, for $20,000 damages for collision. Mr M. W. Slade, instructed by Mr. Master (of Messrs. Johnson, Stokes and Master) appeared for plaintiffs.
The Attorney-Geueral, who was instructed by Mr. Bowley, from the Crown Solicitor's office, said he appeared on a special motion asking the Court to dismiss the action for want of jurisdic- tion to entertain it. He appeared on behalf of the Government of this Colony, on behalf of the King, and rep esented the Government of the United States of America, also L'aptain of Gove under protest. That case was on in personam against Captain Gove of the U. S. S. Alexunder, claiming from him personal damages for the loss alleged to have been sus- tained by the collision alleged to have occurred between the Alexander an the plaintiffs' junk in the waters of the harbour. The first cou- sid ration for his Lordship was, the Alexander was a public arm d vesel, the property of a friendly nation, the United States of America. This ship at the time the collision was said to have occurred was in the wuters of the Colouy on the implied invitation of the sovereign of the British Empire That implied invitation carried with it the undertaking that a public armed ship of the United States was free from the jurisdiction of that Court so long as she demeaned herself in a friendly way with- in the jurisdiction, He took it that it would not be denied by his learned friend that as such a public armed ship was free from all suits in the Colouy. It was necessary to establish that proposition because he wished to argue that the exemption afforded to the ship covered her as a unity, as an entity, covered her not merely as so much steel, but, covered her in her capacity as a public armed ship. One of the reasons for The Chief Justice-The official copy of the the immunity of a public armed ship, part of summing up is the copy on the Hie. Iustead of the military and naval force of a friendly which, when the file comes before me, I find aation. was so as not to interfere with her literal transcript of the copy by the shorthand writer and then an affidavit setting up that he took it down correctly. It is preposterous.
Mr. Pollock-Surely we were not to have two files in this case and the perjury ca e understand Mr. Suffiad was authorised by your Lordship
The Puisne Judge-I told you I was sur- prised to find three copies of the same thing on my file.
Mr. Pollock-Perhaps your Lordship will remember certain directions given to Mr. Suffiad.
The Chief Justice-Those directions had nothing to do with this case. I cannot conceive how anybody should act as the appellants have in putting on the file these different documents. Mr. Pollock-There was a certain direction which must have been misunderstood.
I
The Chief Justice-Yes, in order to facilitate. Even then, that does not excuse the affidavit of the shorthand writer,
Mr. Pollock-Surely any party is at liberty to put in an affidavit ?
The Chief Justice-An affidavit by an officer of the Court can only be put in with the permis- sion of the Court.
Mr. Pollock-Surely an officer of the Court is at liberty to make an affidavit ?>
The Chief Justice-Not without the consent of the Court.
Mr. Pollock-Supposing there was au action against the judge?
2
The Chief Justice --It is a private document Mr. Pollock-It is the property of the public What your Lordship delivered in public is the property of the public. Everybody has the right to file an affidavit. Supposing a solicitor's clerk were to take a shorthand note, he could file an affidavit and say that that is what your Lord- ship said.
The Chief Justice-The practice of the Court has been laid down for nearly three months. The official copy of the summing up is the print as it leaves my hands. Instead of which the official copy is deliberately omitted from the file.
The
iciency. As far as the hull went it was Immune from a rest, and his learned friend, b-ing well aware of that, did not go to the Court for a warrant for the ship's arrest. assumption was that the United States was willing t do justice to foreigners as well as to her own subjects and the remedy for any person who suffered by collision with one of her ships was through the proper diplomatic channels. The immunity of a public armed ship was not confined to her hull only, it extended to her machinery, her guns (which were not a part of the ship) and to her captain and crew. Take the captain and crew out of the ship and she was reduced to the character of U.S. property, but she was no longer an armed ship, part of the military and naval force, which that power bad sent into Asiatic waters. Take the guns out of her and the same remark applies, though, the Alexander, being a collier, she would be less efficient without her o ew than without her guns Taking her crew out of her would render her inefficient to perform the
required of her. How services
could they contend that that which would render her still less efficient could be taken from her, could be made liable to this jurisdic. tion? We had in this Colony a law. which was repealed in England in 1861, which allows
of the for debt imprisonment
person
|
The Chief Justice-Your proposition is 'not confined to Hongkong ?
The Attorney-General-Obviously not Proceeding, he said the general principle was that they must do nothing to interfere with the efficiency of the ship or the purpose for which she was sent to those waters by a foreign sovereign. Captain Gove had come hera from Shanghai out of respect to the jurisdiction of this Court and the ship had gone to sea without a captain. That was a serious interference with the domestic economy of the ship-an interference with her efficiency. His Lordship had before him an affidavit from the officer in command of the Station to the effect that he had received telegraphic orders that Captain Gove was to rejoin his ship as soon as he could get away. The captain of the Alexander could not be sued as if he were the captain of an American merchant ship.
The Chief Justice Does the question of· extra-territoriality come into it? Actions may be brought against foreign governments.
The Attorney-General-If they submit. Mr. Slade argued that a foreign man-of-war was in the same position as a British man-of- war. Supposing a ship of war engaged on important State duty ran down any vessel, if the officer in charge of her set foot on shore he might be served with a writ and become immediately subject to the jurisdiction of that Court. It was suggested in that case that Captain Gore was acting in the course of his duty as captain of the vessel that ran down the junk. Their allegation was that he was not acting properly in command, that he was not doing his duty as a servant of his State. They alleged that he had been guilty of neglect. If they admitted there was neglect the plaintiffs had no case. They said the Captain was not doing his duty as he ought to have done. There- fore the commands of his sovereign could not avail bim. His orders were to proceed with all due and proper ore from the side of tue U.S.S. Baltimore, then anchored at Kowloon Bay. He in fact disobeyed those orders, and by his negligence injures the plaintiffs.
The Attorney-General, said, there was no llegation of neglect in the writ.
Mr. Slate said the writ was in the usual form. Continuing, he said that when an action was brought against a British warship and judgment given, the damages were recovered from the captain personally, and he submitted that the captain of a foreign warship could not be in a better position than the captain of a British warship.
The Attorney-General pointed out that the difference between the captain of a British the captain of a foreign warship and warship was that the former was always within the jurisdiction of British Courts. The King's writs ran in all the King's ship!.
The Chief Justice reserved his judgment.
Thursday, July 5th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF
JUSTICE).
个
or
ALLEGED INFRINGEMENT OF TRADE MARKS. Caesar Leuba and Charles Leuba, watch manufacturers, trading under the name of Leuba Freres, No. 2, Rae Sapin, Fleurier, Switzerland, brought an action against Ullman and Com- pany, dealers in watches and silver wäre, No, 84, Queen's Road Central, for infringing their trade marks. The claim was (1) an injunction to restrain the defendauls, their servants and agents from infringing plaintiffs' trade marks by passing or causing to be passed off watches not of the plaintiffs' manufacture as for the plaintiffs' watches (2) an account of profits made by the defendants in the selling or disposing of any watches not of the plain (iffs' manufacture sold under any device her-iubsfore mentioned or as Ina watches, (3) an inquiry as to the damages suffered by plaintiffs by reason of the d-fendants passing or causing to be passed off watches not of the plaintiffs' manufacture as Po Wai watches, (4) delivering up to plaintiffs of the debtor. A judgment against the cap-by the defendants in oath of all watches not of tain renders bim liable to be imprisoned if the plaintiffs' manufacture in the defendants' he could not find the money; the plaintiffs I possession marked with any of the devices
aforesaid, price lists, etc. had the right to imprison the debtor.
}
No comments yet.
Private notes are available after approval.