T༧ ¥*པWi4fu
Angust 5, 1907.]
out and dealt with according to the western laws relating to insurance rules and regulations." Some controversy arose as to whether this was the correct translation, and Mr. Wong the Court transistor was examined at length on the subject. The question turns on the meaning of 'Lai' and 'Kwai tiu.' Mr. Wong admitted that * Tin? means classification of regulations in paragraphs: the underlying idea being some- thing printed in paragraphe, but he maintained that this sentence could not be interpreted to mein "according to westeru laws of insurance and rules and regulations."
say 80
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CHINA OVERLAND TRADE REPÒRT.
IN SUMMARY JURISDICTION.
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BEFORE Mr. A. G. WISE (Puisne Joves),
AN ABERDEEN BEFORMER, Action was brought by Cheung Chau, trad-
as the Kwong Wo firm, grocars, to recover and Li Ping-nam and others, partaers in the the sum of $57.78 from the Wing Fat firm said firm, due for goods sold and delivered.
M. R. Harding appeared for the plaintiffs, Mr. P. W. Goldring (of Messrs. Goldring and Barlow) for the first defendant, sad Mr. F. X. d'Almada e Castro for the third.
accepted. Can the clause then be held to be ƒ point out that the question, evan as criticised is incorporated for any other reason? Only one authority could be cited to show that a policy suggested.
not so free from "difficulty as seems to be
clause. In "Lane v. Nixon," Byles J. raid| costs. covers risk of ship tɔ the shore apart from the Judgment must be for the defendant with "Mr. Williams has cited many authorities to show that the insurance covers the transit to and from the ship and, amongst others, he has referred to a book of very great authority, viz. Emerigon. That learned author states it as the general rale in the law of,insurance, that the policy covers not only the voyag, from port to port, but also the transit of the goods to and from the ship." This seems to be oited with the approval of that eminent Judge: bat it is minisfestly wrong so far as English law | is concerned with regard to the risk from the shore to the ship. But in that case the que ation was different The policy coutsived a clause “including all risk to and from the ship;" but the question was whether the war. ranty of seaworthiness implied in an ordinary policy as to the ship, extended to the lighters. It was held that it did not. of the plaintiff Co. stated, in fact reiterated, Bat the manager that they charged an extra premium when they insured risk of craft from ship to the shore, and that this policy was expressly used for an insurance when this risk was against. I was pressed to disbelieve him be
not insured
cause no corroborative evidence was given and because certain words were said to be used when this form was used and the risk of ship to the shore included, and no policy was produce i on which these words had been in fact used. I quite agree that the evidence as to the use of godown," is confused and confusing. It seems s certain special chop "faished when taken into clear that it has been used by agreement for policies on voyages to some places in Japan, for the accountant of the Hip On admitted using it as well as the Hing Oa. But he said that whether this chop was on or not we must pay if goods are lost between the ship and the shore: sad that the chop was apparently intended to carry the liability on till the goods were in premium was charged.
the godown: but that no extra
In support of this view the policy of the Yuen Shing Co. was produced, and the corresponding paragraph was thus translated "all insurance matters will be carried out and dealt with socording to English law, rules and regulations.' The explanation of this different translation of the two sentences apparently meaning the same thing was to be found in the juxtaposition of 'Lal' and 'Kwai tia' in the Yuen ding form, and the interposition of 'Po Him' as an adjective between 'Lai' and 'Kwai tiu' in the Hang On form. If the juxtaposition of words in Chinese carries the same signification as in English, as according to Mr. Wong's explana tion it apparently does, I feel confident if i may of things written in an unknown tongue, that his various interpretations are correct. These sentences contain a blank, which is filled in according to the risk insured. There are three different categories of risks under- taken by the Chinese companies-The first No. 3 Tan Mo," total loss: the second Peng On,"
," "F. P. A.": the third "Shui Chik" ses damage, or "W. A." These words are filled in with a chop as the case may require in the blank indicated in the above rentences, and in other parts of the policy. In the present case the policy was of the third kind, “sea-damage.”
What then is the meaning of this sentence in the Hang On policy (C)? Mr. Trenchard Davis' evidence does not carry us very far. He produced the forms of all Insurance companies carrying on business in Hongkong, and showed that there was a specific clause in each covering "goods safely landed": I doubt however whether all the forms in use by all the Chinese companies were produced in his collection, for certainly the Hip On has three distinct forms, and it is at least probable that other Chinese Companies have different forms. He further said that " we and other companies re-insure on Chinese companies' Chinese policies which contain the alause” subject to Western rules and customs and our custom is to treat these words as incorporating all the customary printed conditions of western policies. He said however that he did not know whether there was always a special reference to the company's English form of policy. This as will be seen presently is vital to the question, and his evidence leaves the matter were it started from : Is the interpretation he puts forward correct?munity. But farther I The same may be said of his statement that as a matter of practice his company would pay on a policy for cargo lost whilst being landed in cargo boat, and had done so in relation to this typhoon.
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But he added we have never considered the question of our liability in case of delay, having always paid up. But this is precisely one of the questions I have to considor. One thing I think is clear. The sentence cannot convey to the person insuring a reference to the conditions ia the company's English from. The fact that a different sentence is used on the company's other Chinese form in order to do this expressly is sufficient to negative the suggestion. And the meaning that the policy is to be read "according to (i.e. as containing) the condition usual in western laws" has been negatived by the Court translator. It can therefore only mean “question arising in connexion with sea- damage (i.e. a “W.A." policy) are to be carried but and dealt with according to western (i.e.
· English as was admitted) law relating to insurance rules and regulations" in other words “questions arising in connexion with this policy are to be determined according to English law." The question of translation was very material because it was vital to the plaintiff's case to show that the clause dealing with risk of craft was incorporated into the policy, which would have been certainly f one, probably if either, of the translations for which the plaintiff contended could have been
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shop at Abirdeen. In the fourth mɔ01 of Plaintiff told the Court he kept a grocer this year the defendants were latrodased to build a retaining wall and asked him to supply him by a man who sail they had a contract to them with provision on credit. agreel and gave the defendsats pais books, Plaintif in which were entered the provisions suɔplied. plaintiff applied for payment sul roovivxd $20 When the amount owing amounted to $77.73, on account. Later he made application for an- that if he bɔtherel them further they would other payment and was informed by his debtors add a beating to the next payment.
regarding ortain entries in his books, nud Plaintiff was questioned by the Court
keeping, when he had explained his mɔthol of bɔɔk-
His Lordship remarkel that he kept half his and the latter half he kept in the English books in the ordinary Chinese way, fashion.
many customers that he had resorted to the Plaintiff said it was because there were so foreiga style of keeping his books.
The first defendant, Li Ping-nam, clsime i to be the owner of the Wing Fat firm, in which dealings with plaintif. there were no other pirtners. He had had no
sl'owed judgment
After hearing further evidence his Lordship defendant firm and Li Ping-nam, and judgmɔnt and costs against the for the third and fourth defendants.
AN ACTION WITHDRAWN.
Li Ki and U Haug, brought action against the Two of the defendants in the previous suit, former plaintiff claiming $500 for wrongful
arrest,
he sent for the plaintiffs in this action, but at Inspector Dymond was called and stated 'that
no time were they under arrest.
The Chairman and manager of the Hang On also says it was specially made for Japan trade, but that it is used generally, and that a special proposal has to be made for ship to the shore insurance. He afterwards said that certain Chinese words should be inserted if the ship to shore risk is taken: that the chop is for the godown, the written words for the shore. But although my mind is not at all clear on this point, he was so persistent in his statement that the risk 'ship to the shore' w salways a matter of special agreement, and a special rate was always charged. I cannot for that reason disbelieve the witness; from his position in the Co. he is not likely to give false evidence and bring discredit intimsted that he wishel to withdraw and Mr. Almada, who appeared for them, here on his Co. in the eyes of the shipping com.plaintiffs were culled up and asked if they wished forms of policies actually in use do in fact informing them that it would mean more costs think that the to proceed. They did, but on his Lordship corroborate him for in one there is an express against them, and immediate execution, they reference to the risk of craft clause. Ther· decided to let the matter drop. was another point dealt with in the argu. ment which it is advisable I should deal with; that even if the clause as to 'risk of craft' were included, it ceased to be operative as the consignes had taken delivery in his own lighters: this on the authority of “sparrow v. Charruthers," and "Strong v. Natally."
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regard to these two
Strong opinions have been expressed with commercial lawyers as Matthew J.: “risk of cases by so eminent craft," he says, (Arnould) in a hired lighter, why not also in lighters covers carriage belonging to the assured?" Insurance Co. of North Amerios," and the See "Paul v. earlier criticism of the case in "Harry v. Royal Excbangs Assurancə.” The Court of Appeal in "Boulder v. Merchant Marine Co.," undoubtedly recognises the principle that by taking delivery short of the shore the consignee determines the risk insured consignee waives the landing and terminates because the the risk by taking delivery short of the land. There is here a question left very much in the air. The lighter cases may be cases where the ship lands its cargo in lighters: sad there is obviously another question involved which I have already indicated, what the law is where there is delay through fault of the ship; but not through fault of the consignee : and vice versa. It is sufficient for this osss to
Wednesday, 31st July.
In Appellate Jurisdiction.
BEFORE THE FULL COURT.
LEAVE TO APPEAL REFUSED. His Honour Mr. A. G. Wise delivered the Kee v. Ng Wai, wherein leave was sought to decision of the Fall Court in the oss, of Long
decision of the Chief Justics with reference to appeal to the King-in-Council regarding the
oosts.
this court to give leave to appeal to the King. His Honour said: -The jurisdiction given to in-Council does not involve the exercise of any discretion as is the osse where leave to appeal to instance, in a case where such leave is neos86.JPY) the Fall Court is given by th› judgɔ in this firstzz
the Court has imposed upon it is to see that the as a question of costs. The only duties which-
council as interpreted by the jaligial committee, case falls within the terms of the order in and that the procedure as to giving security, etc., is properly carried out. We do not think that in this case there is strictly spɔsking an at all it is really batween the would-be appellant “ issue " bɔtween the parties; if there is say lesne
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