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Colonial Cases

Chang Chi v. Taku Tug and Lighter Company, 1899

[appeal - shipping]

 

Chang Chi v. Taku Tug and Lighter Company

Supreme Court for China and Japan
Hannen CJ, 11 April 1899
Source: North China Herald, 17 April, 1899

 

LAWE REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 11th April.

Before Sir Nicholas J. Hannen, Chief Justice

IN RE CHANG CHI AND THE TAKU TUG AND LIGHTER COMPANY.

   Mr. Morgan Phillips applied for an adjournment of the hearing of this appeal on behalf of the respondents on the ground that his clients' representative only arrived on the previous night and he was consequently unprepared with his case.

   The appeal was from a judgment of H.B.M.'s Consul at Tientsin, Mr. B. C. G. Scott, in relation to a collision between a junk laden with paper and a towboat, the Kaitai, the last named being alleged to be on the wrong side of the river.

   Mr. Platt for the appellant offered no objection and the hearing was postponed until Friday.

14th April.

   This was an appeal from the judgment of the British Consular Court at Tientsin awarding the plaintiffs Tls. 3,944 damages for the loss of a Chinese junk and her cargo in the River Peiho, in October last.

   Mr. Platt and Mr. E. Nelson appeared for the appellants, and Mr. Morgan Phillips for the respondent.

[Not transcribed.]

   Mr. Platt argued that it could be easily seen that the lower Court had apportioned the blame one-tenth to the junk and nine-tenths to the steamer. There was no doubt that the learned Judge had in his mind that apportionment and he considered it would not be fair for him to apply the Admiralty rule under such circumstances. But he must do so.

   His Lordship asked what was the effect of contributory negligence in a common law action because his opinion was that, where contributory negligence is found, the plaintiff could not recover at all. If the Judge had found contributory negligence Mr. Platt had gained his point, but he had also to be convinced that not only was contributory negligence found, but that the Judge was right in so finding.

   Mr. Platt replied that the Judge had found as a fact that the junk was to blame, and there was no appeal on that point by the respondents when he said he would not apply the Admiralty rule because the negligence was not so grave as to warrant him in doing so, it was plain he had convinced himself that the junk was somewhat to blame, although only perhaps to the extent of 1/10th.

   His Lordship said that, supposing a Judge in Admiralty found that there was negligence, but which did not cause a collision, what would be the effect?

   Mr. Platt in reply said he did not think that it could be held that a vessel guilty of such negligence could be held to blame for the collision; but that was not the case here; the Judge had held that the junk might have taken steps which would have avoided the collision and that she was negligent in not so doing.   Mr. Phillips for the respondents, in a long and able argument asserted that, upon the admitted facts and the probabilities, the lower Court was well warranted in coming to the conclusion it had. The Judge had had the witnesses before him and was therefore in a position to decide where the truth lay. The appellants admitted that if the Kaitai had ported more than she did she would have run into a wood junk anchored on the N. Bank; the Kaitai must therefore have been near the N. Bank. He submitted that the learned Judge had not found such contributory negligence as was contemplated by the Admiralty rules and that the junk was quite blameless in regard to the collision.

   His Lordship in reserving judgment said he intended to look into the judgment of the Tientsin Court in its entirety.

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