Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-12-07
No. 40.

out and store the cargo till the repairs are made
and then return it. The whole expense of this is to
be averaged. So, too, the pumping of the ship
for the common good, or any similar expense, is
general average expense. Parsons on Maritime
Law, 29S.
The Counsel for the claimants proposes to intro
duce evidence OF the desertion of some of the
libellants while at Hong Kong to this, objection
was made, but the Court said the evidence might
be introduced, subject to further consideration
1t appeared in evidence that after the 29th of
April, when this labor was completed for which
compensation is claimed that some of the libel
lants deserted but no allegation to this effect is
made in the answer and strictly no proof to this
effect should have Teen admitted for in Admiralty
proceedings, as Chief Justice Story says in Clout
man Us. TunisoD, the cause must be heard upon
the proofs as applied to the allegations. No
proofs are admissible of any facts not propounded
IN the allegations, and the decree must stand upon
both. Whatever is not alleged is cor0m jidice.
The Court will, however, remark, that to make q
Statue forfeiture of wages, it is indispensable
condition that the person having charge of the
log book should make entry of the name
OF the seaman on the day when the absence
takes place, and that he is absent without leave
The entry is, "7 men took q boat and run away"
The requisites of the statute must be rigidly COM
piled with in order to ensure the penalty. Here
the names of the seamen not written and by the
log no one of the Hawaians could be designated
ln the case of the 90 Rovena,'' Ware 80, Judge
Ware ruled that the entry to support the statute
forfeiture must be made the day the absence takes
place. and it must state the name of the seaman,
and that he was absent without leave an entry
that the crew were absent, that all the crew
absent, will not be sufficient without mention
ing the names of the seamen against whom the for
feiture is proposed to be enforced Itappears they
were absent two days, and were returned to the
ship and remained faithful to the ship during the
residue of the voyage, and for which they have
been paid, and they have paid already thirty-six
dollars each for the expenses of capture, and am
of opinion that this is sufficient especially as no
evidence is given of any inconvenience from their
absence it having occurred after the labor incident
to the repairs was accomplished.
BY the 7th section of the Act of 1870, United
States laws the master is authorized to charge the
expenses of commitment to the seaman and deduct
them from his wages. Can he also insist upon the
entire forfeiture of his wages under the 5th sec
ton 1t was ruled in the Atlantic, Bees Rep 4S,
that the penalties In these two sections not
mulative. and that the master may take his reme-
dy under or the other, but if he elects to i'm
prison the seaman under the 7th section he valves
the forfeiture under the 5th.
This is the view taken by Judge Ware in the
case of Sherwood vs.. Mcintosh, Wares Rep. ll3.
An account has been filed by the agent of the
owners, of the payment made to each of the libel
lants, and which is admitted by them correct.
The Court is of opinion that each of the libeants
who are foremast hands are entitled to payment
for fortysix days labor, at 81 per day, less the
amount charged against them in the account above
referred to, and that the boatsteerers are entitled
to two dollars per day for fortysix days labor, less
the amount charged against them. A decree will
be made accordingly, with costs.
Mr. Harris for libellants Mr.. Austin for claim
ants.
November q, 1861.