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June 29, 1907.]
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s.m. she was sighted by the Aragonia" with the two balls signal, which masas disabled, will you tow me?" The *Aragonis" was steaming to the south on her course which would have taken her about five or six miles on the inside of the "Hapeb." No other vessels were sighted. The ses was rough and
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CHINA OVERLAND TRADE REPORT.
the N. E. monsoon was blowing strongly with i Hupeb," (b) for getting within
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Wednesday, June 26th.
435
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS Piggott (ChiEF JUSTICE).
A DISPUTED MORTGAGE,
propeller shaft at 7.35 on the previous evening, she was like a balloon on the water and shoald | Io the circumstances I do not feel justified and had anchored at 8.3). She had ineffectually have kept bar bows directed away from the in allowing more than one dav's demurrage, signalled to one steamer passing 45 miles on the "Hapeh;" that the danger into which the i.e., 8600. In all the outside of her at about 5 s.m.
expenses amount to At about 1"Aragonia” ran was of her own seeking and | $2,204. Judgment will therefore be for the
the result of unseamalike navigation. In plaintiffs for this amount with coste. order to enable me to decide the question thus raised I put to the Assessor the following questions:-" Were the manœuvres which the asp sin of the "Aragonia” ad p'ed (a) for getting within hailing distance of the tow ng distance of the Hupah," seamanlike both in conception and execution? His answer is "Yes." "Was there at any time during these manoeuvres danger to the " Aragonia," and, if so, in what degree; and was any of the danger attributable to carelessness or imprudence or nnseamanlik navigation on the part of the * Aragonia '? His answer is "There appea 8 to have been at one time some risk of collision, but I do not consider this WAS due to unseamanlike bandling of the Aragonia." The vessel Was very light with a great exposure of side. In a rough sea with a strong wind it would be difficult to bring the Ara- gonia" within hailing distance of the "Hupeh " without incurring a certain amount of risk. I am confirmed in my opinion that the " Aragonia" was handled in a seamanlike manner by the fact that within four and a half hours of first sight
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increasing force, though it had not reached the force of a gale. The wind was variously estimated but it may be taken to be from five to six. The "Hupeh" had on board a cargo valued at 8115,000 and 150 passengers. The captain admitted that at the place where he anchored he was exposed to the fall force of the monsoon, that is to say, if it had risen to the force of a gale, and that in December it may be expected to rise to a strong gale. But he said that even if the wind had increased he would have used another anchor and there would have been no risk of the ship dragging. His observ ations at 8 a m. on 6 December agreed within two miles with his position by dead reckoning, taken when he anchored on the evening bafore;
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so that so far bis anchors had held. He & l. mitted, of course, that he was dependent on his anchors and chains, but he said that if being the "Hupel" the 'Aragonia "* had taken remained where he was, and if the wind had risen, he would have felt safe; but the "Hupeh could ride out a strong gale in the open sea, and that there was no cause for anxiety This is essentially a point to be appreciated by persons familiar with ships, so I therefore put this question to the Assessor. "Was there in the circumstances as narrated by the Captain of the Hapeh" any cause for anxiety? His answer is "In Decimber the monsoon my
in a few hours increase to force 10. The" Hupeh" being disabled and anchored in 26 fathoms was unques. tionably in a position of peril. Had anything happened to the anchors or chains she would have been in a position of very great peril. I am therefore of opinion there was cause for anxiety." I also pat the following question, which I believe is the proper one from the point of view of the legal aspect of the case: the position of the Hupeh" in the circum- stances as they could be observed by the "Aragonia" such as to cause her captain to believe that there was cause for anxiety? His answer is "Yes." The Captain of the "Hupeh further said-I sign-
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"Was
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alled to two steamers, not because I VIS in peril, but because I wanted to get to the nearest port. I had lives and property under my charge and if I remained there I should be imperilling the lives and property under my charge." On this further statement I put
this further question to the Assessor :-" Ware the signals made in order to convey to the pissing steamers the information that the "Hupsh was in peril, id were they so understood, and if so, rightly understood, by the captain of the Aragonia? His answer is "Yes." I now come to the "Aragcúia." There is no difference of opinion as to what took place. Having borne down on the "Hupeh" she steered alongside about a ship's length away from her. A conversation then took place through a mega- phone between the two captains. Having decided to do what he could for the "Hupeh the captaid of the" Angonia" went ahead slowly in order to take up a position ahead of her and get ber haser on board. Before she was clear the "Aragonia," which was very light, her bulwarks being 25 to 30 feet above the water, was caught by the wind and blown across the "Hupeh's" bows in a position of danger. She got clear and by a series of other manœuvres she got right ahead of the “Hupeh" and backed by dragging on her suchors into a position which enabled her hawser after some difficulty to be got on board the "Hupah." The difference of opinion arises as to whether the whole of this was a seamanlike manœuvre on the part of the “Ars onis." The captain of the "Hupeh" says it was not necessary for the "Aragonia" to bave got into the position she did; that it would have been safe for her to have lain on the "Hapeh's quarter and that he could have held the necessary conversation from the stern of his owa ship, or that he could have signalled to her; above all that her captain should have foreseen that the wind might catch the “Aragonia” as
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that vessel in tow and continued on her voyage." The answers of the Assessor are such as I should, as a mere landsman, bave expected. I am quite sure that the captain of the Hupeh" thinks he could have manoeuvred the "Aragonia" far better than Captain Frust; most people, sea captaius not being excepted, who are not engaged in the actual work going forward, are critically inclined, and from their posi. tion of rantage as observers detect faults in the performance of it by others. I am satisfied that the law does no require the ser- vice of the galving vessel to be done in the most seamanlike way possible, but only that what she does should be done in seamanlike manner and that any risk she actually runs in these circumstances is a risk properly to be taken into account in estimating the salvage award. The Assessor's answers conclude this question in favour of the “ 'Aragonia and I entirely concur with them. The salvage award should be based on these auswers. The Assessor is of opinion that no extra risk was incurred by taking the course inside Ochsen, the danger, if any, being limited to the twenty minutes when the vessels were in proximity to that island. I do not see my way to reduce the water question into figures, though and abteily the "Aragonia" was short of water and might have run shorter still: but Amoy was always open as a barbour where water could be got. The Assessor is of opinion that the towage was performed in a successful and seamanlike manner, that no towage in the Chica Sea during a monsoon, with following wind and ses, is unattended with risk, and that it was not such plain sailing as the captain of the Hupeb endeavours to make out; and further that in the circumstances of this case the difficulties of towage and steerage of the disabled vessel were considerably increased by the fact that there was a strong following wind and 898.
What happened in connection with the breaking of the hawser and the alleged sudden alteration of the course seems to me to be immaterial to the question before the Court. Now, with regard to the salvage award. point is clear, that in the opinion of the owners of the "Hupeh" the £750 psid into Court is sufficient, apart from the special items of expense incurred as based on the captain's views, which considerably underestimate the risk
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run. It follows that the amount is insufficient, The Assessor and myself considering the matter entirely independently, have come to the conclu- sion that the proper sum for award is £1,500, apart from the special items of expenses. should say that I have paid due regard to the amount awarded in the case of the Bremen " before arriving at this figure. The captain to receive 8.59 and the crew £300: the chief officer and other deck officers to rank with the chief engineer and his staff socording to their respective grades. The items of expenses agreed to are as follows:-Coal, $9; telegrams etc., $575; overtime $90. The demurrage item is com- plicated by the intervention of Sunday and the notice of sailing given to the Post Office.
of the firm of Messrs. Fook Wo Chong, The hearing of the application by Long Kee,
merchants, carrying ou business at 36 Wing Lok Street, to set aside a deed of mortgage was resumed, The Hon. Mr. H. E. Pollock, K.C., and Mr. H. G. Calthrop (instructed by Mr. A. G. Jacson, of Messrs. Johnson, Stokes and Master appeared for the plaintiff, while the defendant, Ng Wai, merchant, was represented by Mr. M. W. rlade (instructed by Mr. G K. Hall Brutton).
parties in Hongkong for $11,000, and defendant Plaintiff purchasei cert in leasehold pro- claimed to be the mortgagee of these premises. Plaintiff denied having entered into such a contract,
for the defence was called.
Mr. Blade having addressed the court, evidence
IN SUMMARY JURISDICTION.
BEFORE MR. A. G. WISE (PUISNE JUDGE).
A BROKER'S COMMISSION, The action in which Bernard Albert, estate agent, sued Lan Kam.ching and Dang Yong Tang, of 25 Des Voeux Road Central, executors mission due on arranging a loan for defendants, under the will of Dang Chee deceased, for com
again came before the Court. Mr. F. X. d'Almada o Castro appeared for the plaintiff and Mr. E J. Grist appeared for the defendants. D'Almada asked leave to amend the writ to The original claim was for $600 bat Mr.
$150.
Mr. Grist said he consented to this. They had agreed to do so in order to avoid the trouble had agreed that if his clients were liable they of adding a third party to the action. They should only be liable for their proportion, $150. They were agreed on the facts, the only point at issue being whether plaintiff was to receive commission in the event of the mortgage not going through. They asserted that he was to receive no commission unless the mortgage was completed.
His Honour-Somewhat unusual. Mr. d'Almada-Very unusual. His Honour-If the mortgage falls through the broker gets nothing.
through
Mr. Grist-It fell through but not through the fault of the broker.
Plaintiff was called and detailed how he had been authorised to raise a loan of $60,000. This Fire Insurance Company. In the letter of he had arranged to procure from the Hongkong authority which defendants signed there was no such clause that he was not to be entitled to commission until the transaction was completed. If they had imposed sugh a condition ho would not bave undertaken the work. de had mislaid the letter.
Another broker, Mr. A. A. M. da Silva, stated that he had received an order from defendanta to raise a loan and when he went to have the
order signed he was informed that the mortgage had already been closed. He had seen the docu-
ment referred to and it containeɖ, no clause to the effect that no commission was to be paid
unless the mortgage was completed.
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Lau Lam Ching, defendant, declared that such a clause was inserted in the document he
had sigued.
His Honour, after hearing both solicitors, gave judgment for plain:iff with costs.
D4. WYNDHAM'S CASE. Indo-China Stam Navigation Co. sued Dr. The case was again called on in which the Lance et Wyndham o gecover the sum of $1,000 for breach of agreement.
Mr. C. F. Dixon (of Messrs. Hastings and 0. D Thomson fog the defendant. Hastings) appeared for the plaintiffs, and Mr.
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