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Colonial Cases

The Tunsin, 1876


The Tunsin

Supreme Court for China and Japan
Hornby C.J., 22 February 1876
Source: The North China Herald, 24 February 1876




Shanghai, February 22nd.

Before SIR EDMUND HORNBY, Chief Judge.

In Admiralty - Re the Steamer "Tunsin."

   Mr. DRUMMOND appeared for the plaintiffs.

   Mr. ROBINSON for the defendants.

   This was an application in Chambers, under the 253rd Rule of the Order in Council, to compel the plaintiffs, who are Chinamen, to find security for costs.

   Mr. ROBINSON, for defendant, referred to Claude 117 of the Order in Council; also, to the 3rd and 4th Clauses and to Rule 253, urging that it was obligatory on the Court to make the order, as the plaintiff was not within the jurisdiction of the Court.

   Mr. DRUMMOND, for the plaintiff, argued that if the order was granted, his client was too poor to find security, and it would operate as a denial of justice.

   After a long argument, the Chief Judge gave judgment as follows:-

   This is an application to me to order the plaintiff - who is a Chinaman - to find security for costs, under the 253rd Rule of Procedure, or under the 4th section of Rules in Admiralty.  The 253rd Rule applied to persons out of the jurisdiction of the particular Court.  No doubt a Chinese - like any other foreigner - is in one sense out of the jurisdiction of this Court.  The 2nd paragraph of the 3rd section of the Order in Council says that the provisions of the Order relating to foreigners apply to the subjects of the Emperor of China.  The only section applicable to foreigners are the 117th and 118th; and the former section says that when a foreigner desires to institute a suit against a British subject, the Court may entertain the same; and if it does, it shall hear and determine it according to then provisions of the Order, and the rules made under it applicable to the case; and as the 253rd Rule would be applicable, it is argued, to the case of a foreigner, it is, therefore,  said to be applicable to the case of a Chinaman.

   But the question to my mind is this:- Is this rule applicable to a Chinaman, or is it to a foreigner, and are they in a case like the presenter out of the jurisdiction of this Court?  They are certainly so only in so far as they are, as foreigners, not amenable to the jurisdiction of the Court, but there is a difference being not being amenable to a jurisdiction, and not being within it.  The jurisdiction of the Supreme Court is, so far as British subjects are concerned, over all China.  Therefore, Chinese subjects, as well as foreigners, are nominally within it, although they may not be amenable to it. If the words of the Rule mean that every one who was not amenable to the jurisdiction of the Court must find security, there would be no difficulty in deciding the prompt now raised, although it might operate harshly; but the words of the Rule apply simply to persons out of the jurisdiction - that is, I imagine, to persons resident elsewhere than in China and Japan; and this is borne out by the paragraph of the Rule itself which shows that the object was to compel a plaintiff to  indicate a place where notice or process might be served on him, which would be wholly un necessary, unless if he were practically without the jurisdiction, in the sense of being absent. That portion also of the Rule which refers to a plaintiff being only "temporarily transient" within the jurisdiction, also supports this view; showing that it does not apply to the  status of the plaintiff, i.e., whether he is a foreigner or not, but simply to the fact whether he is within the jurisdiction of the Court, i.e., within it in the sense of being present in propria persona, or not.

   If the Rule was in tended to apply to foreigners, qua  foreigners, it would have been easy so to frame it as to have mentioned and specially referred to them; but it has not done so, and this raises the presumption that foreigners, qua  foreigners, were not intended to be included under the general designation  of "persons not within the jurisdiction,."  To say, therefore, that it is applicable to foreigners, and is intended to be applicable to them because they are foreigners, is, it appears to me, to strain its meaning.  I take it that it is no more applicable to foreigners than it is to British subjects, and is only applicable to them when t is applicable to British subjects.  Whether a foreigner, simply because he is a foreigner, should be called on to give costs, is not then a question under the 253rd Rule, but under the 263rd Rule, which leaves the question whether it shall order security to be given for costs within the discretion  of the Court, as does also the 4th Rule of the Admiralty Procedure.

   Then comes the question whether, as a matter of discretion, either under the 263rd Rule or the 4th Rule of Admiralty Procedure, I ought to order this plaintiff to find security.  I do not think I ought, for the following reasons:-

   I should incur the risk of practically denying the remedy to which he is entitled, because if he is too poor and unable to find security, his case could not be heard.  He would have no power to enforce any right he might have against the ship - whatever rights he might have against the Captain and owners under the 17th Article of the Treaty.  And even if he had rights under the 17th Article of the Treaty, it would almost appear, from the course taken in a case that has within the past year come under the notice of this Court, that even if he established those rights they could not be enforced. My own opinion is that this is an erroneous view, and that ample means exist by which the judgment of a Mixed Court under the 17th Article of the Treaty can be enforced; but I believe that this opinion is not generally shared in, especially by those with whom the enforcement would lie. 

   It is clear, however, that he could not under the clause in the Treaty have a remedy against the ship.  This remedy he can only have in this Court; and it appears to me that it would be a grievous misuse of my discretion, if I were to insist that he should under the circumstances give security for costs.  Moreover, at present, I do not see that there is any pretence for supposing g that he will not continue to prosecute his suit; if even he does not, no one is in any way damaged or inconvenienced, for bail having been given, the ship is not under arrest.  I cannot say that at this stage there is any evidence either that the suit is an improper one, or that it is a frivolous one, or that it is prompted by maliciousness.  The plaintiff swears that he has lost his ship and cargo, and that the ship against which this action is brought ran her down while at anchor.  It is only fair and right that he should have it determined whether this ship was to blame or not; and it would be wrong for me to assume that he is, in bringing thirds action, actuated by any improper motive, and that for this reason alone I should order him to find  security. My answer to the argument that if the defendant succeeds he will  have no remedy against the plaintiff, is that he has all the remedy which he would have against the plaintiff if the latter were an Englishmen similarly situated; and I do not see why he should be in any better position because the plaintiff happens to be a Chinaman. 

   The application must be dismissed; but as this is the first opportunity I have had of judicially deciding the point, I shall leave each party to pay his own costs.

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