December 23, 1907.]
Sir Henry Berkeley-We have got to proceed by giving notice of motion, When solicitors are changed the original motion stands,
The Chief Justice-The original motion has has been held to be bad. Counsel in that was held to have no locus standi, therefore that notice of motion is bad. The obvious course is to file a new notice of motion.
Sir Henry Berkeley—I would ask your Lord. ships' attention to page 329-
The Chief Justice-Let me ask you before you take that point, Why has not the solicitor adopted the simplest course and the ordinary
course ?
Sir Henry Berkeley-What is that, my Lord? The Chief Justice-To file a new notice of
motion.
Sir Henry Berkeley-Because he thought it sufficient as it was.
The Chief Justice-But he couldn't have thought it sufficient, because it is not a quarter of an hour ago that change of notice has been filed.
Sir Henry Berkeley-The motion was ad journed, and time was saved by your Lord- ships' order.
The Puisne Judge -You were allowed up till 10.30 to put yourself in proper order.
The Chief Justice-This is my note: Sir Henry be.keley, instructed by Messrs. Dennys and Bowley, applies for leave to extend motion for appeal. Leave granted. That means for you to apply in the ordinary way by notice ou motion.
Sir Henry Berkeley-I would ask your Lordships to extend the power you have under
section 34 of the Summary Jurisdiction Ordinance. Time there is limited to seven days from the date of judgment, but your Lordships will find a proviso to the following ef
effect. "That seven days is fixed provided always that the Full Court may in its discretion extend the time limit for such application either before or after the application thereof, I ask you to allow notios to be given now. This is a very important question, and will be burked if we are not heard because of a technicality.
21
The Chief Justice-I don't think you should use the word burked, but you possibly did not mean it. It rather suggests that the Court is declining to hear the motion, whereas it is a defect in procedure that has been adopted.
Sir Henry Berkeley-Then allow me to sub stitute the words "opportunity lost." I ask your Lordships to exercise that discretion, as the present procedure is due to a misappre- hension.
The Puisne Judge-How is it a misapprehen sion when he finds there is some sort of mistake and endeavours to patch it up?
ir Henry Berkeley-It is a misapprehension which was discovered either by advice or otherwise. Why should the Court be unwilling to hear this application? On the face of it, if your Lordships read the judgment, you will see
that it cannot be sustained.
The Chief Justice-Five days have now elapsed. If it is an important matter the solicitor should have taken immediate steps. He has not taken a single step.
CHINA OVERLAND TRADE REPORT
Sir Henry Berkeley-That is not the point. Why will you not hear me? Punish me if you will.
Sir Henry Berkeley-Why won't you use your discretion, my Lords? Why penalise us?
The Chief Justice-There must be some reasonable grounds.
Sir Henry Berkeley-I understood the mo- tion had been adjourned.
The Chief Justice-It could not be ad- journed.
Sir Henry Berkeley-Allow me to file a notice now ?
The Puisne Judge-No. Sir Henry Berkeley-Why not exercise your discretion ?
The Puisne Judge-It is not a case of discre- tion at all.
The Chief Justice-The solicitor has not taken the necessary steps, so the Court cannot possibly recognise you.
¦
The Chief Justice-If we were to bear you now we would be sanctioning all sorts of delays and irregular proceedings which we osnnot do.
Sir Henry Berkeley-Mere irregularities can always be overlooked, and I can assure your Lordships we were all under the belief that it was merely a question whether the Attorney General or Counsel should appear. If I had any idea that there would have been a question raised as to the validity of the notice I should have filed another.
The Chief Justice-Up to ten o'clock the impression on my mind was that the application ha i been abandoned. The matter was allowed to stand by, and at the last moment this notice has been filed.
Sir Henry Berkeley-No one can be pre- judiced if you give me leave.
The Chief Justice-Yes, the other side can. Sir Henry Berkeley -If you read the judgment you will see that it is radically wrong. The sale took place in
Messrs, Wilkinson and Grist's office, and you cannot have a market overt in a solicitor's office. It is a very important point to decide that Shaukiwan is a market overt for ships. I would ask your Lordships to extend your powers under section 34,
The Chief Justice-I want to say one thing more. It was quite a misapprehension that we granted a stay of execution in the case. What I intended to convey was that, pending_the hearing of the Attorney-General, we wished the parties to remain in stata q10. It was only a stay of execution up to that moment, merely for two or three days until we could hear the Attorney General. We cannot possibly hear
you.
APPEAL FROM A DECISION OF THE CHIEF JUSTICE.
385
The Chief Justios-I might mention that I said on the last hearing I considered this an extremely difficult ouse,
What
Sir Henry Berkeley, proceeding, said he wanted the Court to get into their minds exactly what the plaintiffs were claiming for in the Court below. The writ of summons stated that the plaintiffs' claim was for the sum of $12,000 for the breach of the charter party of the British steamer Salamanca entered into in Hongkong on February 7th, 1902. Counsel then referred the Court to the statement of claim, and stated that paragraph 9, paraphrased, meant that what the plaintiffs did, or what they neglected to do in respect to the charter by the Ostacia to the United States Government, constituted a breach by thm of the original charter party. They stated that the appliants' omission justified the United States Govern. ment in repudiating the re charter. seemed to him to be the claim of the plaintiffs be submitted to be altogether unreasonable. It was unreasonable that the original charterer should have the right to terminate his charter merely because the re-charter was repudiated by the United States Government, even grant- ing for the sake of argument that the United States Government were justified in cancelling it. The proposition he would argue was, Assuming the United States Government to have been entitled to cancel owing to the owners' default, that the effect of the canc-llation was to throw the ship back on the hands of the sub-charterers for the purpose of the sub-charter: And that the remedy of the sub-charterers was not to repu- diate, but to bring an action for damages against
the owners to recover compensation for any log
which the sub-charterers may have sustained by having the ship thrown back on them under the sub-charter, instead of being more profitably employed by the United States Government. So by process of reasoning they arrived at the Au appeal was made from a judgment of his original charterer, whose remedy with the sub- Honour the Chief Justice delivered on May 6th charterer was not to repudiate, but to bring in which he found in favour of Messrs. Cirlo-action against him to compel him to carry out witz & Co. the respondents in the present case. the sub charter. The appellants are the Lombard Steamship Co., Ltd., Sir Henry Berkeley, instracted by Mr. R. D. atkinson (of Messrs, Deacon, Looker and Deacon) represented the appellants, and the 100. Mr. H. E. Pollock, K., instructed by Mr. Jackson (of Messrs. Johnson, Stokes and
Master) appeared for the respondents.
eir Henry Berkeley stated that the appeal was from a judgment of the Chief Justice in an action tried before him sitting alone on the 29th and 3th April and the 1st May, whereby in effect he held that the plaintiffs, Messrs. Carlowitz and Co., who had chartered the s.8. Salamanca from the Lombard 8. S. Co. on February 7th, 1902, were justified in repudiat. ing that charter because of the defaul of the owers of the Salamanca in not carrying out the undertaking on their part with some people who were called Osta cia, the sub-charterers of the ship from Messrs. Carlowitz and Co. who had re chartered her to the United States Government for the purposes of that Government in Manila The judgment went on to say that his Lordship found the United States Government were entitled to repudiate the charter, and that thereupon the Ostacia were entitled to repudiate the sub. oharter from Carlowitz and Co., and that Car- lowits and Co., were entitled to repudiate their charter from the Lombard S.S. Co. That was shortly the effect of the judgment, and he now desired to ask the Court to take another view from that taken nisi prius at the original hear ing. Owing to the limited number composing the Court-s defect which the Chief Justice had more than once pointed out-he had prae- tically to reargae the case before the Fall Counsel believed that he would be Court. able to convince his Honour the Chief
that Justice
the view taken by him that particular occasion was he respectfully used the word, erroneous. The first document to which be invited attention was the writ of
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summons.
The Chief Justice-Assuming that proposition to be true, what you say is that it applies to a case where a kuowledge of the re-charter runs all the way through and affects all parties.
Sir Henry Berkeley Yes. Knowledge affects the question of damages.
The Chief Justics-One of the points I decided was that there was knowledge all the way through.
Sir Henry Berkeley-The re-charter was for the carriage of warlike munitions in and about the 'hilippine Islands daring the time the United States Government were at war with the Filipinos. Your Lordship went on further to say that Carlowitz and Co. had no interest in the re-charter, and that the Ostacia had to pay $1,750 altogether; $1000 to the owners for their consent to employ the ship outside the sib- charter, and $750 to Carlowits and Co., so that Carlowitz and Co. received nothing more because of the re-charter by the United States Government.
The Chief Justice-You accept that?
Mr. Pollock-I don't think your Lordship held that. My friend is going further when he says that the extra payment to Carlowits and Co. had nothing at all to do with the extra charter to the United States Government.
Sir Henry Berkeley-Yon came to the con- olusion that Carlowitz had no interest in the obarter to the United States Government; that it was a matter between that Government and the Ostacia with the consent of the owners, who for giving their consent were paid by the Ostacis $100 a mouth extrs. Continuing, Counsel said he would argue the case on the basis that the Ostacia were principals, and
the not the agents, in
agreement with the owners by which the owners consented It would be convenient on to the re-charter.
here to examine the re-charter which was dated July 1st, 1902. The only parties to that document were the Ostacia and the United States Government. That re-charter was for
The Puise Judge-Pardon me for inter- rupting, but you must give me credit for knowing something about the case, as I have read through the pape ́s.
Sir Henry Berkeley-Had I filed the motion five days ago would you have heard me?
The Chief Justice-Certainly. Sir Henry Berkeley-Then why not hear it nunc pro tune; why punish the appellant when I can satisfy you as regards the judgment ?
The Puisne Judge-Yon ought to have Sir Henry Berkeley-With your capacity proceeded in forma pauperis. Costs are at the ❘ for rapid digestion I am quite certain you bottom of the whole thing,
will be able to follow me.
purposes which might be oiled warlike par- poses. It was not a trading charter, as the purpose of it was to carry troops and store”. If the Court looked further into it they would find that it had not a single provision contained in the original charter. In the Chief Justice's judgment he pointed out that no referanon was
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