Polynesian., 1860-12-29
Glre polpgesian,
SUPREME COURT.---In Admiralty.
Makaula et ais,
Us. Before Justice ROBE RTsoN
The brig Wailua

J
DECIsTON.-This is libel IN rem, fled by Ma
kaula and eight Others native Hawaiian seamen
against the whaling brig Wdilua, Lass master, of
Honolulu. The libel sets forth in substance, that
the libellants shipped as seamen on board the Wal
fud about the Both of December, 1858, for whal-
ing and trading voyage, not to exceed twelve
months, and were each to receive the l40th Law or
share of the proceeds derived frOm such whaling
and trading; that the master voluntarily and will
fully not being compelled thereto by any casualty
carried the vessel into PlOver Bay, in the Fall Of
1859, and made preparations to remain there dur
ing the winter, in violation of the shipping agree
ment; that the vessel was frozen in In November
1889, and remained so till the month of june 1860
by which the libcllants, who were unused to the
rigors of Northern winter, suffered great hard
ship, through which four of them were badly FROST
bitten in their feet and legs, and FIVE of their
Der severely affected with scurvy; that during
the stay of the vessel in PIover Bay, six of their
companions died from the effects of privation and
cold, or of complaints thereby induced that the
amount of oil taken during the whole voyage they
believe to be $50 barrels, of which they claim their
share, and likewise damages for their loss of time
and unnecessary suffering.
Messrs. E. Hoffschlaeger and T. Stapenhorst,
part owners and agents of the vessel appeared as
claimants, and filed answer to the libel. The
answer denies that any agreement was made to pay
the iibellants share of the proceeds of trading
admits that the vessel was frozen in and remained
at Plover Bay from November, 1859. till June,
| 1860, but AYERS that Capt. Lass did not remain
there voluntarily or from design, but by stress of
weather, the unfortunate situation and condition
of his crew disabling the vessel. and through the
sudden and unexpected freezing up of the Bay,
where the vessel was lying engaged in whaling
that the oil not having been gauged the claimants
are ignorant of the exact quantity procured, but
believe it to be about 450 barrels for the voyage
$50 barrels for the first season. and l70 barrels the
second, and state the quantity of bone to be 1929
pounds and that the libellants are all indebted
the vessel over and above the amount of their
| shares.
| A large amount of evidence has been put in on
both sides, and much of it is conflicting as is usu
al in such cases, requiring to be carefully weighed
| by the light of surrounding circumstances. The
main issue in the case is raised by the allegation
that Capt. Lass wilfuly and Intentionally wintered
his vessel in Plover Bay, which is positively deni
| ed. 1t appears that the W0iiud left the Arctic
Ocean and passed southwark through Behring
Straits, in September 1859, and on the Goth Of
that month entered Plover Bay, on the coast of
Asia, for the purpose, as Capt Lass testifes, of
| obtaining water for the passage to these Islands
| When the WdiLuo entered PlOver Bay, the Ameri-
| can bark CleOne, Capt Simmons, already an
chored there for the purpose of whaling as long
| the season would permit, and OF remaining over
|
the part of the libellants, that Capt. Lass had
formed the design of remaining in PlOver Bay for
the winter before he entered the Bay, or If not be-
fore, that he did after his arrival there at
the instigation of, and upon consultation with,
Capt. Simmons of the Cleone and Immediately
commenced making arrangements for that purpose
| by sending ON shore casks and q portion of the
vessels spars, and doing certain things which
clearly indicated design to winter in the Bay.
Some testimony was given also of conversations
said to have occurred between the two masters in
dicating plan to that effect, and an understanding
| between them, that if Capt. Lass would remain
through the winter, Capt. Simmons would assist
him with supplies. On the other hand, Capt. Lass
testified upon oath that he never intended to re-
main through the winter, that to have done so
would have been violation Of his orders, that he
knew he was under an obligation to return the na-
tive seamcn at the time agreed upon, and that his
vessel was not fitted with provisions and other ne
cessaries for such purpose. lie states that he went
to Plover Bay to obtain water, and after he arrived
there, having been informed that whales frequent
ed the Bay late in the season, he determined with
the approval of his officers, to remain as late as
possible to procure OIL and obtained some supplies
| from Capt. Simmons for that object. He states al
so, that the arrangements he made in respect to
the vessel, only such as were consistent with
his intention to remain for time whaling in the
Bay, and that he sent the empty casks on shore to
prevent the noise incident to their being coOpered
on the vessels deck which the Indians said would
| frighten the whales entering the Bay. Capt. Lass
statements are strongly corrobOrated by the testi
mony of Capt. Simmons, and of Mr.. Williams, an
officer on board of the WGiua. As to the inferen-
| ces to be drawn from the conduct of Capt. Lass,
after his arrival in Plover Bay, in the disposition
| of his vessel. and his continuing to remain there
after the indications of impending winter had ap-
peared the Court has had the aid of very valuable
| T = Al Il kAafa
| timony Of men more competent to speak on the
subject be produced. Capt. Long, Capt. Kelly and
Capt. Fish, who have given their evidence IN this
cause are men of skill, long experience, and high
reputation in their profession, giving to their state
| ments the greatest weight on a question OF this
sort albeit their testimony was given with a GER
tain degree of Pesprrf dH corps.
After mature consideration OF the evidence, am
of the opinion that it is not proven, alleged in
the libel that Capt. Lass remained with his vessel
| in Ployer Bay through the winter, from previous
design Although such is the allegation of the
libel and the evidence does not, in my opinion,
sustain it. | shall not dismiss the libel on that
ground, because the defect in the libel would be
cured by amending the libel, and inserting therein
an alternative allegation charging reeklessness,
which would be sustained by the proofs given an
amendment which would no doubt have been al
lowed upon an appeal to the full court. (Conk-
ling's Admiralty, page COY. The evidence does
show satisfactorily that he acted imprudently
and recklessly when he remained in Plover Bay, in
the 64th degree of North latitude, 80 late as the
10Th of November, after ice had repeatedly formed
in the Bay, and with his vessel unprepared to 60
to sea- His conduct in this respect amounted to
culpable rashness, and was the cause of the hard
ship, suffering, and loss of time which ensued,
well as breach of the contract of shipment with
the libellants, for the damages resulting from
which, the owners are liable 1T having been COM
mitted by the master in the discharge of his unc-
tions as SUCH rights and Duties of Mer. Sea-
men, pp l95, I99, 32S, 339; Abbott on Shipping.
5th Am. Ed, PIP. 156. 10; Pritchard's Ad. Di-
gest, p. 222. See 8, Note A. The owners are re-
sponsible for the acts and of Judgment of the
master within the scope of his authority, and in