Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-12-07
Ghe Aolpnesiar1.
SUPREME COURT----In Admiralty.

ISAAC AIKAKE ET AIS SHIP HIBERNIA.
Chief justice ALLEN delivered his decision as
follows:
This is a suit by libel against the ship Hbernia
for work and labor done in repairing said vessel at
Hong Kong.
1t appears that libellants shipped on said vessel
for whaling voyage at this port in November
last and that soon thereafter the said voyage was
| commenced, and on their passage the ship met
with a severe disaster at the Island of Ascension.
The ship was aground about eighteen hours, and
after severe labor she put ahOat. The accident
occurred on the 9Th of February. and the ship
sailed on the 18th for Guam and Hong Kong, and
arrived at the latter place on the 10th of March.
She required pumping most of the time, and Cap
tain Bumpus, who was then mate, but subse-
quently master testihes that, in his opinion, If
there had been bad weather, the ship would have
sunk. Immediately on arrival the ship was dis
charged, hove out, repaired, caulked on the bot
tom and coppered throughout, all of which was
completed on the 3rd of May, an1 on the 5th she
sailed on her whaling voyage. Capt. Bumpus
testfes that the Hawaiian crew, including the
present bellants, labOred the ship all the time
except two days that the labor severe all the
time. 1t became necessary to discharge the cargo
which consisted of about 800 barrels of oil taken
the previous season, and in which these parties
had no interest, on board a store ship. He says
he heard Capt. Edwards say he should pay the
Hawaiians 81 per day and the boatsteerers g per
day Mr.. Hyde was on board the ship, as he says,
in various capacities, but last in that of purser
and he testifes to the same declaration of the
Captain. 1t is in proof that the labor of the Ha
waiians is far more valuable than that of the
mon laborers of China, for such such service as
was required on the ship; and Capt. Sayers, of
the whaieship Repubik, is of opinion that it is
worth from IS cents to 81 per day that these
men being accustomed to the duties Of the ship
would be worth from two to three times as much
as the Cinnamon.
The Counsel contended that it was the duty of
the seamen co-partners, to stand by the ship In
distress. GCofhn Us. Jenkins, 3 Story, 1851.
The seamen in this case were not co-partners,
neither had they the slightest interest in the cargo
of OIL still it their duty to render all the aid in
their power to the ship in distress, they did at
the Island of Ascension, and on the passage to
Hong Kong but for labor done in repairing, and
in the necessary preparation for repairs at the port
where they were made, | am of opinion that it is
sound upon every principle of maritime usage,
that reasonable compensation should be paid
them. In the case of the PhilOmelG, (Haw. Rep,
1861, it was decided that the expenses of wages
and provisions during delay and going out of the
course of the voyage to reit to be contributed
for in general average. These expenses are cassed
among the general average losses. This may be
considered the American doctrine, recognized in
this country, applicable TO the merchant SERVICE
but only in degree to the whaling service. TAbbott
on Shipping, 498 and note. 8 Sumner, 81 3 Sum-
ner, 400.
The seamen on a whaling voyage employed
for certain proportion of the oil and bone which
NAV be taken, whereas the merchant seamen
employed by the month, no matter what the
amount of freight may be which may be earned;
in each case it is the duty of the owners to have
their vessels in seaworthy condition when they
embark, and, if she meets with disaster, 1T is the
duty of the seamen to render all the aid in their
| bo. md ip.nr and
no pay is claimed by libellants till the port of
pairs is reached and the labor necessary for her
repairs is commenced. | desire to be explicitly
understood as not including within this principle
any claim of payment for the ordinary repairs on
shipboard, nor for labor in getting the ship into
port but in cases similar to the present,
where the ship has been so injured as to be rem
dered unseaworthy, so that material repairs are
necessary and she is substantially and permanently
benefited The only interest the libellants had in
the vessel was her use for few months the ensuing
whaling season. By the shipping articles the
engagement terminated In November, and she
arrived at this port on the End. Their labor con-
trbuted to permanent repairs, not for the present
voyage only. Repairing cardboard streak, caulkins<
the hull, and coppering throughout. as IN the
present case, were permanent REPAIRS In which the
owners were largely interested, and the seamen
only for a few months. In addition they performed
severe labor at the Island of Ascension, and In
working the ship to Hong Kong. In view of
these considerations and of the express promise OF
the Captain who, from his long experience, has q
very good knowledge of the rights of the ship as
well as of the seamsn, and of the value of their
labor at the place of repairs, am OF opinion that
they are entitled to be paid. The monthly wages
of the seamen in the merchant service would be
continued, and / can see no reason OF the dscrim-
nation against those in the whaling service, to
the whole amount of their labor. 1t is the
duty of the owners to a greater extent than
have commented upon, to keep the ship IN sea-
worthy condition, and when she ceases to he so,
they must incur the expense of repairs, and not
impose it on the seamen. Against this contingency
insurance can be effected by them. In this case,
however, it is in evidence by one of the Hawaiians
that the Captain, before the work began, promised
them 81 per day for their labor on the repairs,
which is confirmed by Capt Bumpus and Mr..
HYDE, who testified that they heard the Captain
say that be should pay the foremast men 81 per
day, and 81 to the boatsteerers. | regard this
agreement on the part of the Captain obligatory.
Some testimony has been adduced to show that it
is not the custom to pay for labor performed by
seamen under these circumstances, unless the ves-
sci is insured. / cannot recognize any such dis
tinetion for a moment. The men are either
entitled to pay for their labor, they are not and
are not at all dependent upon whom the ultimate
responsibility of the payment rests. Be this as 1t
NAV, no evidence is adduced that the vessel was
even upon this principle. which regard clearly as
unsound.
1t is further contended that if entitled to pay at
ALL they are not from the 10th of March TO the
oath, when the carpenters commenced work, for
during this period they were employed in discharg
ing cargo, in pumping ship, etc., which was neees-
sary to enable the repairs to be made, and while
the repairs going on it appears that the libel
lants hove the ship up and down, and kept her
clear of water by pumping, and aided the car
penters in various ways, such as passing the cop
were employed all day at hard work. It is con-
tended that after the repairs were complete on the
l4th of April they should be entitled to nothing