Shanghai Clash a "War"
5 near Shanghs "war" within the meaning of law is upheld in an important judgment just handed down by Jud Yang "Pang of the First Special District Court, awarding $3,800.81 damages (o the Yuan An Steamship Ca, against the Chung Wei Steam-plaintiff's prayed for judgment in respect Of a. refund of freight, coal and. advances inthe [sum of '$14,150 and. interest and costs, but the Court dismissed their claims other than that. mentioned above. of the law firm of Messrs. Yeh Represented by Di. L. C. Yang,
Go., the plaintiffs told the Court that, by a charter party entered into between them and the defendants on December 5, 1031, they chartered. a steamship Known' ae the Tai Ping from the defendants for a term of three months at a monthly: freight lof $13,500, The charter party provided: ina go. into fembarramsed, either side has the ich thie charter. party may
the option of cancelling this charter without prejudice or claim."
"The vessel was delivered to the plaintiffs on December 25, 1931) and the plaintiffs thereupon paid to the defendants the freight in ad-
for another month.
"Two days "later, counsel for plaintiff continued, the SinoJapan.
hostilities broke out, and plaintiffs on February 8, 1952, gave Totice to defendants the cancel the charter as from jat date. The defendants, however, was alleged, refused to cancel the charter. party' on the ground that
had [also refused to refund the freight Jconstitute The defendants the Sino-Japanese hostilities did not
land advances made on the steamship.
Mr, W. H. Wel, representing the Jaefendanis, contended that since September 18, 1981, when the Muk-Jden incident ' occurred, there had been conflicts between Chinese and Japanese forces but that these could not and did not constitute a "war." This was proved by the statements lof the Chinese diplomatic offi home and at Geneva. The plaintiffs had no sound reason to feontend that the Jocal hostilities 'Furthermore, defence counsel continued, the plaihtiff's could also have made use of the vessel in all ports along the' China const and, at the time of the outbreak of hostilities, the vessel was in Tientsin and agheduled to sail for Canton.
charter, in question was ray, embarrassed of interfered with Jed to pay, Plaintiff claims. other tha herein allowed are dismissed. Defendant to pay two-thirds of, the costs and plaintiffs to pay one-third.
"Reasons:—There are two point this case to be decided. Firstly, under the conditions of the charter party, was the plaintiff entitled to Jcancel the charter party? Secondly, [did the plait Move the right to claim the petain of the freight already "On the first point, the Court finds that there are two conditions which would justify the cancellation lof the charter party:—(1) war; and (2) the charter party must thereby bbe embarrassed. Court finds that by war it does not mean that China would originate a war of her own accord and that the war would have to be universal. The definition lof war is generally this:—A contest between two or more nations which involve violent acts, Whether the usual effects of war are present is not of any importance. So the plaintiffs contention that, the inident of January 28, 1932, is a
of the charter party must be upheld.
rag" and fustifes his cancellation The second condition is that the charter party must have een, em: barrassed. The defendant's contention that there was no interference with navigation in Shanghai and that the plaintiff coold have ma use of the vessel in ports other th Shanghai is not sound. 'The situation then existing was extraordinary and the. plaintiffs' contention that the charter party isnot unsound. From the it will be seen that the plaintiff has 'a, good reason for cancelling the charter party.
the second point, the Court finds that under Article 77 of the Marine Law, the charterer shall pay the full freight before the vessel fails. If the charterer cancels the Jcontract after the trip has already been commenced, the charterer cannot recover the freight that has been paid in advance. " Without the above revision, the owner of the vessel {would have been made liable to unnecessary losses when, at the time fof the cancellation of the charter party, the boat is far from the ports of call, and is unable to secure freight, The plaintiffs, should, however, recover advances on coal, etc., amounting to $3,800.81, from the' defendant. This judgment is rendered in accordance with Art, 82 fof the Code of
Text read from the printed page and cleaned; old type leaves the occasional error.