i
426
The Chief Justice, after consultation with the Paisne Judge, said:-We quite conceive the principle Sir Henry Berkeley contended for, that we have to come to the conclusion, quite irrespective of our own views of the case, whether any reasonable min should or could❘ have come to the conclusion at which the magistrate arrived. If the case had been reduced to the bare facts which Sir Henry Berkeley put to us, I agree that there would have been very great difficulty in coming to a conclusion, but when these simple facts are said to be supported by all sorts of other facts and statements, then if those statements are so inconsistent as not to be even understood by people who have been to view the place, I cannot think it is just that the man should be convicted ou euch evidence; and further, I think it is evidence that no reasonable man should have countenanced. No two state- ments really are consistent. The statement of the girl is absolutely inconsistent with that of other witnesses, while the state- ments of the boys are really hardly to be believed. The whole thing is such a mass of inconsistency that--with the greatest respect to the magistrate I think this is an unreasonable finding which no reasonable man ought to have come to.
The Puisne Judge-I quite agree.
Sir Henry Berkeley--There is no further evidence.
The Paisne Judge-Then you must consider your position. At present all we can do is to grant a rehearing.
I be rehearing was fixed for Friday.
IN ORIGINAL JURISDICTION.
BEFORE FIR FRANCIS PIGGOTT (CHIEF JUSTICE).
A JETTISONED CARGO.
Judgment was delivered in the action brought by the ou Chou Shing firm against the China Navigation Co., Ld. to recover the sum of 85,347.78 for non-delivery of a cargo of indigo, which was said to have been jettisoned to save the defendant Company's 8.8. Yunnan.
Mr. M. W. Slade, instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist) appeared for plaintiffs, and Hon. Mr. H. E. Pollock, K.C.. instructed by Mr. H. G. C. Bailey (of Messrs. Johnson, Stokes and Master) for the defendants.
His Londship said-
↑
The plaintiff in this case was unable to attend the trial, and it was quite impossible to adjourn the hearing. His case has not however suffered in the least, for what bis evidence would have been is quite clear; and though everything has been said by his learned counsel as forcibly as it could have been said on his behalf, it is impossible that the very clear issues wich are raised conld have been droided in his favour. The plaintiff sues in respect of the non-delivery of 280 tubs of liquid indigo shipped on the Chins Steam Navigation Co's 5.8. Yunnan. The Company allege that they were shipped on deck at shipper's risk, and that in consequer ce of damage to the ship and stress of weather they were jettisoned. The plaintiff.admits that there was a proper jettison of tabs of indige, but denies that they were his tube which were so jettisoned. He says that his tubs were stowed in the ballast tank, and there fore they could not have been jettisoned; alternatively, be says, if they were on deck and therefore were jettisoned, they were not on deck with his consent, but in direct breach of his agreement with the Company's agents. The
issues two
therefore
clearly very defined-1st. Were the plaintiff's 280 tubs of indigo in fact on deck? 2nd. Were they so on deck with the plaintiff's consent? As to the first question, two witnesses were produced who allege that they saw the tubs being put on board ou the 30th June, i.e. on the last day of the loading, and being shot down into the hold, and as they suppose, that they were then moved into the ballast tank. I am satisfied that if they did go into the hold they went into the tank. I am therefore asked to believe that tubs were sent down to be put in the ballast tank when the ship was nearly full. The people from the ship deny this altogether, and say that the tank had already got over 200 tubs of indigo
Bre
THE HONGKONG WEEKLY PRESS AND
tak. n.
[December 24, 1906.
in it. If the evidence of these two wit- Į with whom negotiations have already been nesses had been free from defeet, I might proceeding, the terms of the contract bing have found it necessary to go into a more written in English. The broker, intentionally elaborate analysis of the evidence as to the or by mistake, it matters not which, introduces loading of the cargo. Bat it is not. Makfresh terms into the contract, writing them in Lau, the man who took the tubs on board, s1ys | Chinose on the back, and obtain the signaturs that the mate's receipt did not at the time he of the Chinese merchant Is this a contract received it bear the "words" on deck at ship-binding on the broker's principal? Or, putting per's risk" which it now has written on it. I the case more concisely—I send out my agɔnt do not believe it. Chan Kwan, a lighter min with instructions to conclude one contract, ha who was also shipping tabs of indigo for concludes an ther, am I band by it? The another firm at the same time as Mak Lau, says more statement of the question seems to invite that his tubs were in fact shipped on deck, and the answer "No." But there is a familiar that the tallyman wrote on his mate's receipt principle which might compel an affirms- 'on deck "in phonetic Chinese. There is no tive answer nuder certain conditions. A trace of such characters ever having been principal is liable for the fraud of his on the document. The statement is palpably agent, both in contract and in fort, when he false. I therefore do not believe the plaintiff's has acted within the scope of his authority. evidence on this head, and find that his 280 In
a recent Jaso I had occasion to deal tubs were stowed on deck. I have decided with this proposition, and the point to which this question without reference to the tally the explanation was carried for the purposes of book, to the production of which abjection was that case was this:-The fact that the principal The rules of evidence falfil very much has not authorised the particular not of frand is the same function as red-tape: sometimes immaterial: if the act which has been done exceedingly useful, but occasionally they serve fraudolently is within the blass of acts which the opposite purpose. My mind always rebels the agent has been authorised to perform, then against the attempt to exclude a document made the principal is liable; otherwise, not. In this in the ordinary course of business and ou respect fraud, mistake, or mis-statement stand which business men would in the course on the same footing. It is therefore clear of their business rely. So far as the law that in the case I have pat concisely, and a of England is concerned the case is essen.fortiori, in the circumstances I hav specially tially different from the stock 4508 OD hearsay evidence. Bu s far as the law of this Colony is concerned there is a question of interpretation of s. 26 of the Evidence Ordi- nance. As I can do without it in this instance the question how far this section goes, whether it is strictly limited to account books, must remain open till another occasion arrives for discussing it. I am boud however to notice the fact that the ship's evidence as to the number of tubs on deck jettisoned is not so satisfactory as it should be. The Captain's protest refers to 1,111 tubs; but if all the tubs on deck were jettisoned, as think they were,
the number should have been 1,175. There seems to have been an error of calculation, which must have been subsequently found,
and
|
before my, the principal may be held liabl", Th mere stale nout of such a possibility is enough to alwm those who have any basi ness relatious with the Chinese mrgh suts : for the case m sy arise every day in this Colony, though apparen ly it has not yet be›n brought before the Carts. The mere statement of the possibility shows, too, how ca eful the Courts must be in applying English principles of law to circumstances which the framers of that law never dreamed of, sud which have little or no analogy with the circumstances to which it is usually applied. In this, and, as I say, in pro- bably a multitude of other cases of daily occurrence, there is oe onsideration which, so far as I am aware, has not been considere i
in England--the employment of a foreign when discovered steps should have intermediary at different s'ages of negotia. been taken to rectify the protest. I have tious conducted in two languages, neither next to consider the second question: Were party understanding the language of the other, the tubs on deck with the plaintiff's knowl dge and I think the question really turns on this... and consent? Without saying that this almost what is the true function of the Chinese inter- follows from the answer have given to the | meditry ? Is he broker throughout the ne- first question, it certainly follows from the find-gotiati"'as ? or does he assum› another character ing that Mak Lau received the mate's receipt | at any stay; of them-and if so, what is the law as it now stands, and that he gave it, as he says, applicable to this state of affairs? In the to the plaintiff soon after 2 p.m. on that day. present case the Chinese merchant has repudiat- He must have given it to him, therefore, with ad the on tract because the condition as to the the words on it, "On deck at shipper's term of delivery incorporated into it by the risk." The ship did not sail till next intermediary was not fulfilled. He bases his day; be must therefore be held to have repudiation on the principle I have just sccepted the shipment as made. I should have
referred to that a principal is, under certain thought it would be for the convenience of all
aironmstances, liable for the fraud of his parties that where an understanding has beeu agent. He does so als on another ground
arrived at that the goods were to be on deck it should be so stated on the bill of lading as it was on one produced. But the fact that it was not put on does not, I think, in view of the evi- dence given not only by the agents of the ship, but also by the P. and O. Co., either show that there was no such arrangement nor the possibility of the goods being so shipped, the fact being recorded on the mate's receipt, whether the bill of lading is issued subject to the production and conditions of the mate's receipt. am strongly inclined to think that the plaintiff did, in fact, agree to the shipment on deck; but as he was not called to give his version of the story told by Mok Ying Chan I prefer to rest my finding on the legitimate deduction from the statement of Mak Lau, which I have referred to above. Judgment for the defendant, with costs.
ALLEGED BEACH OF CONTR CT.
In the action brought by the Holland China Trading Company, Alexandra Buildings, against the Tong Tai firm, traders of 93 Wing Lok Street, the Chief Justice delivered his reserved decision.
The Hon. Mr
two or more
that there was a mistake, that the parties were never ad idem, and therefore there was no contract at all. He does so, thirdly, by reference to the principle, also recently before the Court, which decides which of two innocent parties is to suffer, where damage has been caused by the fraud or mistake of an intervening third party, It sometimes happens that principles of law seem equally applicable to a given set of circumstances. This may be perfectly true, but, as I have pointed out in another case, you may get the affirmative answer from one or other or all, according as the facts are more or less fitted to the principle ; but if one principle gives a negative answer, you may feel fairly condident that the others will not give you a positive answer, or thất
if
of them
either
appears to, there is a fallacy somewhere in the argument. Be- fore examining the case more closely I want to say one word on the subject of such contracts as the present. Commercial contracts between Europeans and Chinese are difficult to con- clude where neither party knows the other's language sufficiently for contractual purposes, and a Chinese intermediary is inevitable, Bat the con fitions nader which such contrats are entered into seem
me to impose osrtain duties on both sides, duties to at least attempt to understand or to safeg gard them. His Lordship said-A European merchant'selves from the risks of not under- sends out his Chinese broker with instructions standing. is useless for
side to conelude a contract with a Chinese merchant to go into the box and rely on
H. E. Pollock, K.C., instructed by Mr C. D. Wilkinson (of Messrs. Wilkinson and Grist) appeared for the plaintiffs and Mr. M. W. Slade, instructed by Mr. F. X. d'Almada e Castro, appeared for defendants.
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ta
one
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