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Colonial Cases

Kijima v. P and O Co [1894]

[shipping, negligence - appeals]

Kijima v. Peninsula and Orient Company

Supreme Court for China and Japan, Shanghai
Hannen CJ and Jamieson AJ, 23 April 1894
Source: North China Herald, 27 April, 1894

Shanghai, 23rd April.
Before N. J. Hannen, Esq., Chief Justice, and George Jamieson, Esq., Assistant Judge.
Judgment was delivered this morning in this case, which was an appeal by Tsune Kijima and others, the next of kin of the men drowned in the collision which took place between the Chishima Kan and the Ravenna in the Inland Sea in November, 1892, to discharge the Order made by H.B.M.'s Court for Japan on the 13th of December, 1893, which dismissed the petition by the said Tsune Kijima and others.
The appeal was heard on the 16th inst. when the plaintiffs and appellants put in a written argument drawn up by their counsel, Mr. A. B. Walford. Mr. J. F. Lowder and Mr. A. P. Stokes then appeared for the defendants and respondents. But Mr. Lowder having left for Japan, Mr. Stokes was now present alone.
The Chief Justice, in delivering judgment, said - The decision of this appeal rests upon this short question - "In Rule 39 of the Rules of the Supreme Court for China and Japan, is the word may to be read as shall?"
The defendants and respondents relied principally upon the case of Julius v. the Bishop of Oxford, and undoubtedly the law upon the subject was very fully considered in that case. The words there to be considered were "it shall be lawful" here we have to consider the word "may" - but all the remarks and arguments with regard to "it shall be lawful" are equally applicable to the word "may."  Lord Cairns says: "The words 'it shall be lawful' are not equivocal.  They are plain and unambiguous.  They are words merely making that legal and palpable which there would otherwise be no right or authority to do.  They confer a faculty of power, and they do not of themselves do more than confer a faculty of power. But there may be something in the nature of the thing empowered to be done, something  in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons  for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so,  and the words 'shall be lawful' being according to their natural meaning permissive or enabling words only, it lies upon them, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation."
He then goes on to the consideration of the case in which, when a power was conferred, it was held that there was a duty to exercise that power.
Lord Penzance says: "The words 'it shall be lawful' are distinctly words of permission only - they are enabling and empowering words. They confer a legislative right and power on the individual named to do a particular thing, and the true question is not whether they mean something different, but whether, regard being had to the person so enabled,  to the subject matter, to the general objects of the statute,  and to the person or class of persons  for whose benefit the power may be  intended to have been conferred, they do, or do not, create a duty on the person on whom it is conferred, to exercise it.  If the matter were to be decided by previous definitions, I should prefer that of the Lord Chief Justice Jervis, who said in the case of Reg. v. York and North Midland Railway, that such words as 'it shall be lawful' were 'to be understood as permissive only, unless some absurdity or injustice would follow from giving them that their natural meaning.'"
He also went on to consider the case and continued: "In all these instances the Courts decided that the power conferred was one which was intended by the legislature to be exercised;' and that alth0ugh the statute in terms had only conferred a power, the circumstances were such as to create a duty. In other words, the conclusion arrived at on these cases was this, that regard being had to the subject matter, to the position and character of the person empowered, to the general objects of the statute, and above all to the position and rights of the person, or class of persons, for whose benefit the power was conferred, the exercise of any discretion by the person empowered could not have been intended. If the idea of a discretion had not been excluded in these cases by the requirements of justice, and other general considerations, the courts could not have held that to be compulsory which the legislature had described in terms enabling or permissive only."
Lord Selborne says: "The language (certainly found in authorities entitled to very high respect) which speaks of the words 'it shall be lawful' and the like, when used in public statute, as ambiguous, and susceptible (according to certain rules of construction) of a discretionary or an obligatory sense, is in my opinion inaccurate. I agree with my noble and learned friends who have preceded me, that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are intentional, and never (in themselves) significant of any obligation. The question whether a judge or public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and object of the enactment conferring the power."
Lord Blackburn says: "I do not think the words 'it shall be lawful' are in themselves ambiguous at all. They are apt words to express that a power is given; and so, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it, but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf."
From all these opinions - and I have quoted all the Lords who spoke - it appears that the words 'it shall be lawful' and 'may' are merely permissive, and whether the judicial officer having the power is bound to exercise it, is for the applicant to make out aliunde.
Reading the Rules by the light of these authorities we think that it merely gave a discretion, and that there was no intention to create by the Rule itself any right which the defendants did not already possess. If the defendants can also show that they have any right to have the petition in the present form dismissed, then they may apply to the Court to exercise its discretion in their favour, and the Court will be bound to do so.
Have the applicants then made out aliunde that they have such a right? In order to determine this we must look at the general rules and principles of pleading as provided for either by the Rules of this Court. Or where they are silent, by the Rules of Court under the Judicature Acts in England. It is admitted that there is no Rule of this Court further than the particular section that applies, and the only question is whether the defendants have such a right under the Rules of the Supreme Court of Judicature which they are at liberty to invoke under Rule 339.
At the time Rule 339 was drawn up there were causes in which two or three causes of suit not by or against the same parties might be joined in one petition (e.g. creditors' and legatees' actions and various Admiralty actions); there were other cases in which according to the then Rules of pleading this could not e done. The Rules intended that the Court should dismiss the petition in the latter case, and should exercise judicial discretion in the former. Since that time, however, the Rules of pleading have been altered.
By Order XVI "All persons may be joined as plaintiffs in which the right to any relief is alleged  to exist whether jointly, severally, or in the alternative," and the principles upon which the Courts in England  allow several plaintiffs, although alleging distinct causes of action, to join in one petition have been fully set out in the recent case of Hannay v. Smurthwaite (L.R. 1893, 2 Q.B., 412).  We think that on the principles there laid down this case is one of a class in which the several plaintiffs may be properly joined. The right, therefore, which the defendants would have had under the old Rules of pleading to ask to have the petition dismissed is gone. It is now, we think, a matter for the discretion of the Court either to dismiss the petition or allow it to proceed as seems most expedient for securing substantiial justice between the parties. The petition is no longer "defective" in point of form as it would previously have been, and may be allowed to stand if otherwise expedient.
The position is shorty this. The burden lies on the defendants to how that words, which in their natural and ordinary meaning are permissive merely, must be read in their favour and in no other way. They have to show that they have an absolute right to call upon the Court to exercise the power conferred on it by Rule 39 in the way they ask, viz. by dismissing the petition. We think they have failed to show this.  We cannot find in the Rules of this Court, in any statute, or in any Rule of pleading now in force in England any absolute right such as they contend for.
We therefore think that the Court had a discretion in this case and we also think that under all the circumstances of the case, that discretion should be exercised in favour of the plaintiffs. The appeal must therefore be allowed with costs.
It has not been necessary for the purposes of this decision to refer to the case of Scott v. Forrester, but ass that case was referred to on both sides we think well to say how far we agree with it. All that the learned Judge decided in that case was that when a matter of procedure as by our Rules left to his decision that opinion should be guided by the practice which for the time being prevailed in England. To that extent, we entirely agree with the case. But the learned Judge used language which has been construed to go far beyond that decision and which has been quoted to prove that the Court may pass over its own Rules altogether in favour of improvements and simplifications recently introduced in England. We do not think that was the intention of the learned Judge; if it was, we cannot agree with him. So long as the matter is one for which provision is made in our Rules, those Rules should be followed. In matters where our Rules have no provision, or where there is a discretion left to the Court, the practice at home may then be followed.
The appeal was allowed accordingly, with costs.

Source: The Times, 7 July 1893



A correspondent writes:- "The action now before the British Consular Court in Yokohama, in which the Mikado of Japan is the plaintiff and the P. and O. Company the defendants, which is referred to in various telegrams from the Yokohama correspondent of The Times, is interesting from more than one point of view. 

It arises out of a collision which took place, towards the end of last year, in the Inland Sea of Japan, between the Japanese torpedo-boat Chishima, then on its way from France, where it had been built for the Japanese Government, and the P. and O. steamer Ravenna.  The torpedo-boat was sunk and nearly all on board were drowned, while the steamer sustained considerable damage.  A British naval Court acquitted the steamer of all blame, while a Japanese naval Court acquitted the torpedo-boat, and the Japanese pilot in charge of the steamer was arrested by his own authorities and tried on a charge of manslaughter. 

In the present action against the P. and O. Company the Japanese Government, suing on the view of its own naval Court, claim damages for the loss of the Chishima, on the ground that it was sue to the negligent navigation of the Ravenna.  The claim amounts to more than three-quarters of a million of dollars, made up of over $400,000 for the cost of the Chishima, of over $120,000 for her guns and equipment, of about $60,000 for the cost of sending officers and crew to France and their pay, while the remainder is made up of compensation to the families of those on board for their deaths.

The defendants claim to be entitled to counterclaim for damage to their vessel, caused by the negligent navigation of the Chishima, and the question now at issue is whether such a counterclaim against the Emperor of Japan can be entertained by the British Court in Yokohama.  For the defendants it is contended that the Emperor, having submitted by bringing the action to the jurisdiction of the Court, is liable to answer a counter-claim like any other litigant; while, on the other hand, the argument appears to be that his Majesty only submitted to the jurisdiction for a specific and defined purpose and that the Court cannot go beyond the strict scope of that submission; and it is also argued that on the construction of the language of the Order in Council governing the proceedings of the consular Courts in Japan that such a counterclaim as the present one cannot be entertained.   On this preliminary point judgment has not yet been delivered.  If it should be against the company, the latter would have to carry its counterclaim, in the shape of a substantive and independent action, into the Japanese Courts.

The point is important in countries where extra territoriality of the system of consular jurisdiction exists; but in this country it has long been settled law that a foreign State or Sovereign suing in our Courts is amenable, like any other suitor, to cross actions or counterclaims.  Lord Brougham, in delivering the judgment of the House of Lords in "The King of Spain v. Hullett" (1 Cl. and F. 333.353), said:-

"Though the king of Spain sues here as a Sovereign prince, and is justly allowed so to sue, yet, beyond that, he brings with him no privileges that can displace the practice as applying to other suitors in our Courts.

There the King was held bound to answer a cross-bill filed against him by the defendant personally and upon his oath.  In whatever way the point is now decided by the Yokohama Court, it will probably be carried on appeal to the Privy Council."

Source: The Sydney Morning Herald, 25 June 1894


The troubles of the Peninsular and Oriental Company in the matter of the Ravenna and Chishima Kan collision in the inland sea are not yet at an end, though litigation has been proceeding ever since the catastrophe, in November 1892.  Tsune Kijima and others, the next of kin of men drowned when the Chishima Kan foundered, sued the company for damages, and her Britannic Majesty's Consular Court for Japan dismissed the suit on a legal technicality.  Tsune Kijima appealed to the Supreme Court at Shanghai.

Mr. N. J. Hannen, the Chief Justice, delivering judgment,  said: "the decision of this appeal depends upon this short question - "In rule 39 of the Rules of the Supreme Court for China and Japan, is the word 'may' to be read as 'shall" and after a long  discourse he came to the conclusion that "may" was not "shall."

The defendants and respondents relied upon a case of Julius v. Bishop of Oxford, and undoubtedly the law upon the subject was very fully considered in that case.  The words there to be considered were "it shall be lawful;" here he had to consider the word "may" - but all the remarks and arguments with regard to "it shall be lawful" were equally applicable to the word "may," said his Lordship, and he found the lower court wrong.  No doubt by this time (says an exchange) Tsune Kijima is in despair, and the P. and O. Company heartily tired of the tale of the Chishima Kan. The litigation does not seem likely ever to end.

[See Julius v Lord Bishop of Oxford & Anor [1880] UKHL 1 (23 March 1880), and see[1895] UKPC 33, [1895] AC 644.]

Published by Centre for Comparative Law, History and Governance at Macquarie Law School