Polynesian., 1860-12-29
No. 35.

ooI, 1he Eroulc JHdith, L Z. Ro0. l0I The Co.
luH5ia c. Rob. 1867.
1t appears that on or about the 10th November,
| 1859, while three of the Wailuas boats were out
engaged In whaling, severe storm came on, break
| ing up the thin ice then formed in the Bay and
preventing the boats from regaining the ship. In
| that storm, the chief mate and one or two seamen
were lost; the of the boats suffered intensely
from cold and wet some of them succeeded with
great difficulty in reaching an Indian camp on the
shore; and it was several days before all the
vivors regained the vessel. 1t then apparent,
from the disabled condition of the crew. the un-
prepared state of the vessel, and the unfavorable
state of the weather, that the Haiiua must remain
in the Bay for the winter and dispositions were
made accordingly, by housing her in, &C. The
cruise for which the libellants had shipped under
articles, must be held to have terminated ut that
| time. shall therefore decree that the accounts
under the contract of shipment be closed at the
10Th November, 1859; that the advances which
| the ibellants had received, with interest thereon
up to that date shall be charged against the earn
lngs that had accrued to them up to that time, at
the l4Oth share of the catchings and that the bal
ance if any, due to each at that date be placed to
| his credit. -.a
| Ii appears that the vessel remained shut up by
the Ice in PlOyer Bay until the 10th Of July, 1860,
| at which date she was anchored outside the bay,
and ready to proceed North for the second cruise
From the time that the Wdiiua lost her chief Off
Ger and became shut in, till the summer of 1860,
when she received supplies of fresh provisions from
| vessels arriving from Honolulu, was time Of Sc
we're hardship and privation for the libellants and
their companions, particularly the Hawaiian
men, several OF whom sank under it. At the time
of the storm in November, and through the winter,
Capt Lass to his credit be it said treated the IL
bellants kindly. and did all that the limited means
at his command permitted, to mitigate their con-
| ditlon In consideration of their detention and
privatiOns, shall decree the ibellants the of
one hundred dollars each, and cannot allow any
charge to be made against them for clothing and
other necessaries furnished to them between the
10Th November, 1859, and the 10th of July, 1860,
at which date their accounts will be opened for the
| second season.
During the vessels second cruise in the Arctic
Ocean, in respect of which there was no express
contract with the lbellants to wages it appears
that the Wdilla was able to man for whaling only
two boats instead of four, which was the number
she could man when she sailed from Honolulu. 1t
was eOntended therefore, and with reason, that as
| the lbellants were not under q contract for the
second season. they must be paid gilantuna meruit
the amount Of which should be ascertained by an
average of the catchngs of the vessels which whaled
in the Arctic Ocean during the season of lS60 Ia
my opinion that would not be fair method of
certainiBg the amount to be paid the bellants, and
consider it more just towards the owners to allow
the lbellants, in addition TO the l4Oth share, for
which they served during the first season, and
which forms fair basis of calculation, such rea-
sOnable extra allowance as shall, in the estimation
of the Court, meet the difference which existed in
the vessels capacity for whaling between her first
and second seasons. Having adopted this as the
proper basis for ascertaining the amount which the
libeants should receive, it does not follow, every
thing being considered, that vessel which Is able,
efficiently and continuously, to man two boats on
the whaling ground, will procure only half as much
oil as a vessel which is able to man four boats
.ha-a
be equal. shall therefore decree the libeants to
receive for their services during the second season.
the 10th share of the oil and bone, with 80 per
ceht added, as 9uantum mermit.
The quantity of oil obtained during the entire
voyage, according to the certified statement fur
nished by the claimants, is 593 barrels which, in
the absence OF any positive proof to the quanti
ty obtained during each season separately, will be
divided between the two seasons in the proportions
indicated by the answer, thus $50 barrels for the
first season. and 243 barrels for the second season.
The quantity of bone procured is ,029 pounds,
which will be divided thus 4, l4S pounds for the
first season, and 2,SSl pounds for the second sea-
son.
There appears, printed on the margin of the ship
ping articles, note to the effect that the libelans
and others of the crew, to be paid OF at what
are known here 90 the United States Consular
prices" Those are the rates for oil and bone at
which seamen belonging to American shipsare paid
| OH here from season TO season. IL was argued Dy
counsel for the libellants that, the memorandum
is printed only in the English language, and on the
margin of the document, it probably not un-
derstood by the libellants and should not bind
them. But the libellants having been shipped IN
the presence of an officer appointed by the Govern
ment, whose duty it is by law to assist the native
seamen in making their contracts, and TO protect
them in their rights, must presume that the Off
Ger did his duty in this instance and explained the
shipping contract to the bellans in all ITS parts
Their shares will therefore be calculated at the
Consular prices for the present season, as they
have been given In evidence.
There is q charge made against each of the IL
belants of six days wages after the return OF the
vessel to Honolulu, the ground, as it is said, OF
a usage existing here, that seamen remain by their
vessels for eight days after their arrival in port
The existence Of such usage is not satisfactorily
proven, and the charge is therefore not allowed.
Finally, it is not proven that any agreement was
made to pay these libellants any share of the pro-
eeeds of the trading, and they can recover none.
An order Of reference will be made, authorizing
j. W. Austin ESQ.,, to compute the amount due to
the several i6elants, allowing the proper credits
and upon the coming in and approval of his report
a decree will be entered accordingly.
Mr.. Harris for the libellants.
Mr.. Austin and Mr.. Montgomery for the claim
| ants.
Honolulu, 8th December, 1860.