Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1855-05-12
CHE 1Dolpuesian.
SUPREME CoURT.---Decision of Judge
Rnharfsnn

JOHN MONTGOMERY, Esqr. for Plaintiffs
A. B. BATES, Esqr. for Defendant
Judge Robertson in delivering his decision said
This is action brought by the plaintiffs, the firm
of Melchers Co. of Honolulu, to from the de
fendant the Collector General of Customs the sum
two thousand hundred and forty one 8l00 dollars
with interest, from the 9th day of September last
which the plaintiffs was an overcharge of ter
per cent made by the defendant on the duties paid by
the plaintiffs at that date, under protest. on certain
goods imported by them in the Danish ship Asa
Thor " from Hong Kong The facts as set forth in the
plaintiffs petition, admitted to be true by the defen-
dants counsel and the case is submitted ON those facts
to the decision of the court
The counsel for the plaintiffs contends first that the
duty of 10 per cent, ad uGren imposed upon goods
imported from China and the Philippine Islands
beng the produce manufacture Of those countries)
under the Act passed by the Hawaiian legislature in
the year lS53 cannot be levied upon such goods when
imported in Danish vessels without violation of the
Treaty made between the Hawaiian Kingdom and the
ingdom of Denmark onthe 18th day of October 1916
by the seventh article of which, he contends, no
goods imported in Danish vessels quors exceped) can
be subjected to higher duty than per cent Gd uGO-
ren that being the duty payable the goods of the
most favored foreign nation He Claims further that
the Port of Hong Kong, where the goods in question
were purchased and shipped on board of the 50 Asa
Thor, for Honolulu, is not port in China - but a
British possession and therefore not within the scope
of the statute referred to.
lne contends there
no intention the part Of His Majestys Government
in making the treaty with Denmark TO grant Danish
vessels, pOrts any higher privileges than were or
enjoyed by the vessels of other foreign nations hav
ing treaties with this Kingdom. and that upon Just
construction of the Danish British and French treaties
the Hawaiian Legislature had perfect right to impose
any aIilotnt of duties they might deem proper on
goods imported in the vessels of those nations from
countries with which have treaties On the
Ond point he argues that if the Legislature, in passing
the Act Of 1853 meant include within its purvew the
Empire of China, speaking Geographically, and not
merely politically, then Hong Kong is " port in Chi
na, - and 1t is universally known and spoken of in
the language of commerce as a port in China
This is case of considerable importance, there
other parties similarly situated with the plaintiffs and
who, perhaps look forward to the judgment of the
court IN the present case, for guidance their claims
founded upon similar state of facts We have there
fore bestowed upon the case before us deep thought and
careful deliberation.
The case, presented by the learned counsel made
to turn hrst upon the proper construction of the treaty
with Denmark, and to that point will, first, direct
attention. In the language of Chief Justice Eyre
courts of law, although not the expOunders of treaty
yet when it is brought under Reconsideration incident
ally, they must say how the treaty to be understood
between the parties to the action and in doing which
they have but rule to govern themselves by. We
construe this treaty would cOnsrue any 9TH
er instrument, public private; collect from
the nature of the subject from the words and the con-
text the true intent and meaning of the contracting
parties whether they A. and B., happen to be
two independent states. HdrryGt IVAson, Dos. &
Pul. 43S.
The article of the Danish treaty, upon the con-
structiOn of which, the plaintiffs right de-
pends, IN the first instance reads follows, viz: car
tice l. No Danish productions, other goods board
Of or imported in Danish Ships that be imported
by other foreign ships, shall be prohibited pay
more than those duties levied ods of the most IA
vored nation Any alteration in the duties levied on
goods shall not take effect be enforced until twelve
calendar months after the first public notification of such
change
After the most careful study of the treaty. as WHOLE
we feel inclined to say that the article just quoted, does
not depend for its construction Interpretation, upon
any other part OF the instrument, but within ITSELF
complete and perfectly ineligible. The object and intent
of the high contracting parties it TO is perfect
y clear and simply this: The representative of the
King of Denmark secured for the vesses Of his COIN
try the right to import into tits kingdom, goods of all
kinds, whether the produce of Denmark not, that
could be imported in the vessels of other foreign nations
without stpulating for any specific limit to the rate
of duties which the Hawaiian Government might i'm
pose upon such goods; and the representative of His
Majesty agreed his part, that such goods should not
be prohibited subjected to the payment of any high
er duties when imported IN Danish vessels than those
duties levied on the goods of the most favored nation.
Or. il NAV be expounded thus: The article contains
three propositions; first Danish ships shall not be pro-
hibted from importing into this kingdom, any kind Of
goods that be imported in the vessels of any other
foreign nation; second goods imported in Danish ships
shall not be subject any higher duties than levied
on the goods of the most favored natOn third, twelve
months previous notice shall be given of any alteration
in the scale of duties. '". ..
The treaty with Denmark WIS thus the first to free the
Hawaiian Government from all restriction the
actment of discriminating tariff on foreign imports,
setting generous example to the powerful Mari
time States with which His Majesty, at that me had
treaties of cOmmerce and evidently contemplating in
IT'S terms the arrival of period in Hawaiian history,
when the limitation of duties foreign goods to FIVE
per cent, would cease to exist.
1t contended the part of the defendant that the
British and French treaties, of 1916, left the Hawaiian
Government at liberty impose niger duty than five
per cent upon goods coming from countries with which
we had treaty engagements even where such goods
were imported in British French bottoms and that
there was no intention the part of either of the high
contracting parties, in framing the Danish treaty. to
circumscribe the freedom of the Hawaiian Government
in this respect And it is argued that by giving due
weight to the word c in the 9TH article OF that treaty
it will appear that the privileges granted to the vessels
of Denmark TO be measured precisely by those en-
oyed at that tme by the vessels of Great Britain and
France We are unable to attach any extraordinary
weight to the word in the connection IN which
here occurs and far from thinking that 1t can, by
any means be made bear construction calculated to
change or control the plain and obvious Of the
text We cannot perceive that it governs, In any de-
gree the last part of the sentence in which it occurs
relating to duties. iH'
We are not called upon at present, to adudicate up
on the meaning of the British and French treaties but
only upon that with Denmark, and we do not feel al
liberty to seek for the intentions of the parties to the
latter amid the terms and stpulatons Of the former
nor would we feel warranted in endeavorng to derive
those intentions from any extraneOus source whatever
where the language used by the parties is so clear and
ineligible We're there any ebscurty or ambiguity ap-
parent to us in the 9TH article Of the Danish treaty We
would then feel duty to endeavor to interpret the
same by the rules usually put in requson in such ca
ses That great writer international law, Nattel,
says at page 244 of his celebrated treatise The rst
general maxim of Interpretation is that IS not o1o-
able 20 interpret schat has need OF fnte,pretGtion-