92
the action had been brought for damaged † peanuts, which is the converse of Libeau v. General Steam Navigation Co., a variety of other considerations would arise, which I have not now to deal with. But the plaintiff's con- tention is quite different. He says that there was external damage to the cases; and he suggests that there is quite enough prima facie evidence to show a proper correlation between the damage to the cases and the abstraction of their contents, which must be a constant factor in all questions of this sort; and he contends that this shifts the onus on to the defendants to
i prove that birds' nests were not shipped as he alleges. So far as the conditions of the bill of ¦ lading are concerned, the last one is that "the delivery by the Company of packages externally in good condition as received shall be conclusive evidence of delivery of full weight and con- tents." As these cases were not delivered in as good condition as received, the Copany cannot rely on this clause. Now, the case on which the plaintiff mainly relied was the Peter der Grosse. The principle there laid down was however merely this, that the
value and dition weight, contents known" did not override the admission that the goods were shipped in good order and condition ; so as to shift the onus from the ship. of proving that the damage did not arise whilst the goods were on board the ship or in his custody, or that it comes within the But this does exceptions of the bill of lading." not carry the plaintiff far ou the way towards his goal, which is to get rid of the onus of proving
owner
to
66
to
prove
coo-
00-
а
his affirmative that the cases contained birds' nests, when the shipowner has expressly dec.ined to admit that the cases contained these delect able commodities, We get now into a different order of ideas. It is obviously an essential
action the plaintiff's due correlation between the injuria and the dumnẩm, between the external damage to the cases and the abstraction of their con- tenta. The onus of proving this must be on But him, because his action depends on it. sapposing this to be proved, why should it shift the onus of proof as to the nature of the contents? The onus lies normally on the party who asserts; in the cases we are dealing with it is shifted because the other party has made an admission; if he contends that the admission does not bind him it must be because he has admitted something to be a fact which he alleges not to be a fact. Therefore be in
THE HONGKONG WEEKLY PRESS AND
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Was
shipped at Singapore were birds' nests. It was stronely pressed upon me that there a obarge of fraud involved, and that it must be proved to the fall. I do not think that it is
to
the
essential
this determination of 0.80 to find fraud. What is essential is that the that the plaintiff must satis'y me cases contained birds' nests when shipped ou board the Putiala at Singapore. This he has failed to do. There are many points in the evidence which are exceedingly unsatisfactory. What were the cases doing for six days in the Ban Ann Hoh godown? "I do not understand the evidence of the plaintiff's foki who saw peanuts dropping from the cases before they These were surveyed on artival in Hongkong. and other questions require to be satisfactorily answered before I could find in the plaintiff's favour. Everything tends to show that the cases were carefully filled with peanuts in Singapore, by whom it is not necessary for me to enquire. Judgment must therefore be for the defendants with costs.
DISASTROUS FIRE.
SIX CHINESE BURNT TO DEATH.
8.10.
2nd
Another of those appalling fires which occasionally startle residents of Hongkong broke out at No. 3 Tung Loi Lane, in the vicinity of the old harbour office, at about ten minutes past five
February Tung Loi Lane is a notorious place for fires: and is generally so full of debris as to impode the operations of the firemen when they appear on the scene. It is a further remarkable fact that nearly always before Chinese New Year a fire occurs in this lane.
the
(February 9, 1907.
firswood shop on the ground floor. as the efforts of the police to trace misters and A fact which fokis have been mas 1000ssful. points to the fire being an accident, however, is the statement of an Indian watchman who was on daty in the lane at the time. According to his story the residents of the ground floor must have awakened just in time to escape, for as he was looking down the lane he observed about six men burst open the door and rush out of the house. He immediately approached to learn the cause of the trouble, and through the open door noticed that the whole room was apparently in flames.
OTHER FIRKS.
After a brief spell from Saturday's exertions the Fire Brigade were again called out between 9 and 10 o'clock yesterday morning to quell an outbreak of fire which occurred in the No. 2 hold of the as. Monmouth-hire, lying in the dangerous goods anchorage near Stonecutters. There was a cargo of fresh manur-and ground ants in the hold in question, and spontaneous combustion is believed to have been the 、hen the waru- canse of the outbreak.
t.he water police were ing WAS quickly on the scene, likewise the Navalyard fire float, while the brigade under Chief Inspector Baker were hurried there on launches. The fire was then got under and the cargo turned over and transferred to lighters. The damage done was unknown last night, but it is not considered to he very great.
given
At Yaum ti on Friday night a number of matsheds used in connection with the Kowloon- "anton railway took fire and were barat dowɑ before any attempt could be made to put them
out.
THE INSURANCE CONSPIRACY.·
ACCUSED CONVICTED.
on
When the alarm regarding the present outbreak was given the brigade turned out with their usual promptness, and in charge of Chief Inspector Baker hastened to the scene of the fire. On arrival they found the outbreak to be in a wood hop on the ground floor the first;
At the Police Court February 3rd, flour of the same premises being a matting shop.before Mr. F. A. Haseland, the case in which
for sleeping
The China Mutual Life Insurance Company, Limited, charged Wong Sia, Ma Chik-mang, Ching Shing and Leung Wong-shi with conspiracy to defraud them of the sum of 82,000 upon an Insurance Policy on the life of one Lenng Yin-cho was concluded.
while the second was used
It was also evident that the fire purposes. had been burning for a considerable time, as the whole building was a mass of fame which burst from windows and doors from the ground to the top floor. Apparently the fire originated on the ground floor of the shop, and being fed with a very inflammable materia', spread very rapidly, while dense volumes of smoke ascended
to the first and second floors and this must have completely suffocated the sleepers in the upper part of the house, of whom there were twelve. The cbarr-d remains of six were found
in a cockloft on the top floor.
When the firefighters appeared on the sc-ne
they found shop No. 3 to be completely beyond their control, sa turned their attention to saving the adjoining premises and so successful were
his turn has become the party who assert», and the onus is on him to prove bis asser- tion. In the Peter der Grosse the onus was held to be on the shipowner because he had admitted that the gods were shipped in good order and condition, and they were landed in bad order and condition. The refusal to admit the quality of the goods shipped did not help him because the nature of the goods
taken that very littls was not in dispute. But in this case the
the prompt measures nature of the goods is in dispute, and there damage was done to the surrounding houses, ware com- is no reason why the shipowner should be The wood and matting shops
the first gutted, and part of deprived of the benefit which results from
pletely the fact
fell floor
iD. IL WAX some his refusal to admit what they were;
two hours that there has been external damage to the after the outbreak, however, before the heat died cases has nothing to do with the
down sufficiently to enable the firemen to mount contents were, and of proving what the
to the top floor, and it was then that the ghast'y the plaintif find was made of six charred bodies believed to cannot shift the onus from
be those of four men, a woman and a child. The argument confuses the factor essential with the obus
Five other Chinese were
found to the plaintiff's action
maiter. The utmost
the roof of the house i a badly of proof of another that might be said for the plaintiff is that be
burnt condition, and were prompth moved to has proved that abstraction could have followed
hospital, while the corpses were tieferred to the damage done to the cases; but as to what the public mortuary. was abstracted the parties by their contract have
onus
agreed that in the event of dispute the shipper would have to prove what the contents really it would were. If the cases had arrived empty, bave made no difference.
Applying these principles to the facts, I must say in the first place that I find it difficult, even in the face of the evidence of Mr. Lammert, to believe that the abstraction of birds' nests and substitution of peanuts could have taken place through any aperture in the cases, such as he thought might have been made by prizing, keep ing in view the damage observed to the gunnies outside the cases; and I do not think that the plaintiff has satisfied the onus of proving the necessary correlation between the damage and the possibility of abstraction. But, secondly; I do not think he has satisfied the onus of proving that the contents of the cases when
од
00
140
The five rescued Chinese were pruled on to
the roof of the burning building by a shop coolie named Foug Ting who resided with them the up floor. He was awakened by the crackling of wood and found the room enveloped in fame, but with a praiseworthy presence of mind and a cool courage be set to work to rescue his fellow lodgers, and through his valiant efforts he was successful in pulling fre compatriots out of the inferno, and although hadly burned, they are in no danger. Fong himself escaped with severely barned hands, but did not think his injuries sufficiently bad to go
to hospital.
The first floor of the building, the mat shop, was said to be well stocked, and was insured in the Chan On Insurance Co. for 32,0 0. No particulars, however, are available regarding
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Mr. P. W. Goldring (of Messrs. Goldring and Barlow), who has been prosecuting on hehalf of the Company, intimated to the Magistrate that his clients were willing that His Worship should decide the case summarily instead! of committing it for trial. His "orship had power to do this under the and if he wou'd Magistrates' Ordinance.
inflict the maximum penalty within his power. viz: 6 months* imprisonment with hard labour, and possibly in the case of the men, some hours in the stocks, and recommend them for banishment, the Company would be perfectly satisfied.
His Worship expressed his willingness to accede to this, except so far as the stooks were concerned, and found the defendants guilty and santanead the first, second, and third defendents to six months' imprisonment with hard lsboar and the fourth defendant to four months' imprisonment. He also recommended them for banishment,
BRITISH NORTH BORNEO.
Th
Our Bandakan correspondent writes: expedition, to survey the new railway from Kudat to Sandakan, left Kudat about the middle of January. The journey is expected to be covered in about three months, and the distance is estimated to be about 120 miles.
The extension of the wharf hers has been put in hand.
The Governor and his wife are leaving hore for Hongkong shortly, sad proceed on March 14th, by the Empress of Japan, for England via Canada.
the
Tawno Coal is now being stocked here; Coal Co. has its own wharf, close to the Government wharf, and has something like 250 tons here at the moment; as soon as the N. E. monsoon breaks there will be steady and ample supplies here all the time.
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