April 18, 1908.]
Thursday, 17th April.
IN ORIGINAL JURISDICTION,
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIGGOTT),
THE INTERPRETATION OF A CHARTER PARTY. Judgment was given in the case in which the Man Cheong Yuen firm claimed from the Fukusei Company 527 bags of rice belonging to the plaintiffs in the possession of defendauts or $5,176.94 the value thereof and $500 damages for detention thereof. Mr. M. W. Slade, instructed by Mr. A. G. Jackson, of Messrs, Johnson, Stokes and Master, appeared for the plaintiff, and defendants were represented by the Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. E. Beavis.
His Lordship said I am glad that the parties acquiesed in my suggestion to furnish me with an assessor to assist me in deciding the question which arises on this charter-party, As I anticipated, I should have given, though with much besitation, a decision which would have not been satisfactory to either party. I have however waived the opinion I had formed, both on account of what I must admit to be the superior knowledge in relation to the question in dispute of the gentleman chosen by the parties to assist me, and also because I feel that a judgment resting on his experienced opinion will be
CHINA OVERLAND TRADE REPORT.
wero
:
some
45,000 piculs: the repetition of the rate being introduced for greater caution. This view seemed to me to be borne out by clause 19 which provides for loading and discharging rice and paddy and more so by clause 20 (which was not however filled in and was deleted) that charterers should have the option of shipping up to a certain quantity of bags each of rice, flour and paddy. The reference to "other lawful merchandise " troduced for the purpose of indicating that
seemed to me to be in the charterer. was rice,
not strictly limited to four and paddy and if there sufficient of it in the holla with the rice, etc. to constitute cargo' the term mixed cargo' would cover it. On the other hand I could not have brought myself not what I thought, but rice, flour, and or to believe that, even if mixed cargo' meint
addition of even 20 tons of fish, being so piddy, plus other merchandise, the small a proportion of the whole cargo, would have made the cargo mixed' within c'ausa 17. But my assessor will not have any of this construction at any price: lave put bim the following questions (a) Is a cargo compo:- ed of a certain quantity of rice, flour, and/or paddy, a 'mixed cargo' within clause 17? His Saigon Hongkong trade, a cargo is not a mixed answer is "No, according to the custom of the cargo' within the meaning of clause 17, unless other cargo not mentioned in the charter party such as matches, piece-goods, machinery or fish, more satisfactory to theis shipped in the holds together with rice, flour, parties, and that opinion is based on substantial and 'cr paddy" (b) Is a cargo composed of any reasoning. It will, I think, be useful, quantity of rice, flour, and; r paddy, together however, to state what I conceive to be an with 236 bags of fish a 'mixed cargo'? His intelligent construction of this contract, because nswer is "Yes; in my opinion this is, or even as gentlemen engaged in commerce, in shipping less amount would be, sufficient to constitute a especially, are apt to put their ideas into short 'mixed cargo if shipped in the holds; and this forms and though it may well be that both opinion is based on my knowledge of the parties believe they understand what they mean, they sometimes fall out over the measing, and introduced for the benefit of both parties. custom of the trade; for this clause 17 is it is well that they should realise the difficulties On the one hand, the charierers having to ship a which this concise language pre ents to the full cargo, may not be able to fill up the ship mind of an ordinary lawyer. The plaintiffs with rice, flour or paddy, and therefore are entered into a charter party with the defendants allowed to fill in respect of the 8.8,
other lawful up with any Koun Maru." She was merchandise; on the other baud, the owners in described as of 43/45,000 picule carrying capacity order to protect themselves against possible or thereabouts, and chartered for despatch loss from the out-turn of a mixed cargo, to Saigon there to receive a full and complete stipulate for freight to be paid on the ship's cargo of rice, and/or paddy, and/or broken rice, maximum deadweight capacity, which in this and/or rice flour, and/or other lawful merchan.
oase is shown to be more than 45,000 piculs. dise. The ship was to carry a full cargo, her The dispute has clearly arisen owing to an carrying capacity being estimated in piculs of under-estimate of the ship's carrying capacity,' rice. But it was contemplated that she might I adopt these answers, because they are not also carry paddy and rice flour; and these com. merely based on experience of the trade, but modities, although packed in the same sized also because they seem to me to be justified by bage, bulk larger than rice in proportion to
the reasoning on which the assessor has sup- their weight. Clause 16 provides that the freight ported them. There is one point undetermined is to be paid as follows:-24 cents for every by the evidence: Were the bales of fish shipped picul of what 1 will call rice: 25 per cent.
in the holds? The assessor is of opinion that this additional freight for every pical of what I will is important to the definition of cargo,' and call paddy, and 50 per cent. additional freight that if they were on deos the condition of the for every picul of what I will call flour. oharter party, as he has interpreted it, would Clause 17 provides that "if a mixed cargo be not be satisfied. I assume that there can be no shipped, freight to be paid at the above rate on
difficulty between the parties in determining this the estimated capacity of the vessel, say on
question. Subject to this, judgment will be for 45,000 piculs at 24 cent per picul." As a the plaintiffs for $5,176.91, but without damages matter of fact only about 41.000picals of rice, for detention with costs; costs of the assessor-- paddy and flour were shipped: but the plaintiffs $50 to be costs in the cause. paid at the agreed rat: of 24 couts as for 45,000 picals. When reduced to the standard of rice piculs the ship actually carrried about 49,000 picnls. The plaintiffs also shipped 236 bundles of fish. They claim that they had shipped & * mixed cargo' which by clause 17 was to be paid for as for 45,000 piculs at 24 cents whether with or without the fish The defendants claim to charge them at the rates specified in clause 16, l.e. so many of rice at 24 cente, so many piouls of flour, at 30 cents, and so many piculs of paddy at 36 cents. The point which I do not understand about their attitude is with regard to the fish: they say its introduction does not make the cargo mixed,' yet there is no rate provided which they could charge for it. As I read this obarter party it seemed to me to mean that the rates given were contemplated for a complete cargo of rice, flour or paddy, the increased percentages of the rate being settled in some way proportioned to the increase of bulk per picul of the differont goods: but that if the cargo be of rice, flour, and paddy mixed, then in order to equalise matters the above rate-i.e. 24 cents per piculis to be paid on the whole capacity of the ship, estimated in rice bags, say on
Mr. Sieba sat as assessor.
IN BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PI G TT).
12
An order for adjudication was granted.
PIÈCE GOODS DEALERS' FAILURE.
257
Goldring appeared for the petitioning creditor.
Re the Yat Shing Loong firm. Mr. P. W. Wong Sing Chan managing partner of the Official Receiver, said the firm carried on Yat Shing Loong firm, questioned by the business as piece goods dealers at 6 Mercer, Street. He bad seven partners and the total $3,500. The others were all sleeping partners. capital was $10,000, of which his share was The Yokohama Specie Bank had a claim against the firm for $39,491 for drafts which he had accepted for and on behalf of the Wing Sheung Leang firm of Kobe. Neither the
had met the drafts. money nor the goods had been sent him but he The book debis still owing him were 38551. There was more due to him but he thought that amount was recoverable. Other debts were due by other people outside owing high money now said they had paid, and the Colony. Several firms that he showed as produced receipts. It was probable the money had been collected by one of his fokis who had received the money. gone away. He was quite sure he had not
UNSUCCESSFUL COAL MERCHANT. Chan Teo Sheang, who formerly carried on a coal business in Des Voeux Road Central came up for his public examination. In answer to the Official Receiver (Mr. Wakeman) debtor stated that he was the scle proprietor of the business, which he commenced in March 1903 with a capital of $5,000. The steamer "Wing Chi"
was mortgaged to witness for $6,000 for debts due for goods supplied to the 8,8 "Wing Hing. The steamer Was now at Hunghom and had been seized by the court in another action. The " Wing Hing steamer. He had never any interest in the belonged to him but he supplied ccal for the company which owned the Japanese companies were his principal creditors. vessels. Two He was informed on December 10th last that one of his fokis had run away with $236 which
he had collected
13
never
Examination closed,
ANOTHER FAILURE.
Hang Wo Wing Kee, came up for his public Lam Wing, alias Lam Wing Ip, trading as examination.
was sole proprietor of the Hang Wo Wing Kee Questioned by the Official Receiver, be said be firm which he had carried on for thirteen years. He paid $8) 0 for the business and $4,0 0 for the book debts bat he had not been able to collect them.
You have a lot of bad debts now ?—Yes. His Lordship-Has he any good ones? I ord.
The Official Receiver-He has a few, my
you show $14.00?-Yes.
In your list of debts due for over twelve years
Is that, correct? - Yes.
You state that you do not know their ad 'res- ses or occupations?-I have not been able to trac them.
$
Is that bussiness like ?—No answer. When you gave them credit did you inquire addresses
their ddresses ?-Yes, I noted their
for
deal of money during the past two years. He Continuing, debtor said he had borrowed a had also sold goods on credit for, which he could not recover money. That was because many of his debtors had failed in business, or had left the colouy.
The examination was closed,
HOWARD AND COMPANY.
Re Herbert Stephens, lately carrying on No. 33, Queen's Road Central, public examina- business under the style of Howard and Co.
tion.
Mr. Wakeman said there was a proposal to come before an adjourned meeting of creditors would be better to adjourn the application. next Wednesday. He thought therefore it
His lordship consented.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMPERTZ (ACTING PUISNE JUDGE).
A LADY AND HER TAILOR.
A Portuguese lady named C. M Ozorio sued Cheong Kam Lee, tailor, Lyndhurst Terrace, for nine dollars, the value of cloth given for a dress. The plaintiff stated that she gave the defendant six yards of cloth double width and instructed him to make a dress for her. After waiting three weeks she went to his place and as the firm refused to go on with the work she took away her cloth. It was ong and she now sued for the value of the cloth.
The defendant said he became sick two days after receiving the order and he went to the country. In his absence the plaintiff came to his place and took away the cloth. He was willing now to make the dress.
Hi Honour-How soon can you finish the dress?-About a week.
His Honour-A week! But the dress is already out- might get it done a little quicker.
The case was adjourned.
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