The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1863-12-17

70 be their rights BY resorting to force, but may safely
leave the adjustment of those rights to a court OF admit
rally. whose duty II is in general, as a matter OF coml-
ty, to judge and administer Civil justice IN nsriune
concerns, between the citizens or subjects OF any friend
ly nation, exhibiting a cause within It's jurisdiction.
According TO the usage which prevails among whale
men, as L understand il from the evidence, If the Rich
mond had fallen in with the whale, dead, having died
OF the wounds inflicted on it by the OregOn's men the
/ previous evening, and the respondent had arrived and
| asserted its claim 10 il. before II was cut In, the IL
belIant must have given 1t up. But if the Richmond
had fallen in with the whale wounded, as II was, low
cred her boats and killed il before the Oregon's boats
had joined in the pursuit, the whale would have be-
longed exclusively TO the Richmond. What maNes the
difficulty in the case IS that, before the Richnonds
officer struck the whale, the boats OF the Oregon had
joined the pursuit, and her officers had warned the
Libelant that they had reason TO believe 1t was the
same whale that they had lost sight OF during the night,
with several of their harpoons IN its body. Of course
the Libellant was not therefore bound 20 refrain from
endeayoring to kill the whale, because the Oregon's
officers might have been mistaken. 1t might have been
n different whale, for there were other ships within
sight. But just after the whale was struck, Mr.. Allen
pulled close 10 il, so that his boatsteerer recognized the
Oregon's hrpDOn apOles In the whales blubber, and
then Mr.. Allen told the Libellant he was certain it was
the Oreson's whale. 1t is contended therefore on
behalf of Respondent, that when the Libellant, after
that warming. allowed his officer to go on and kill the
whale, be did so merely upon the possibility that, after
all, It might be found that the harpoOns in the whales
carcass, were not marked with the Oregon's brand, in
which case the Libellant might have retained the whale.
On the other hand, 1t is argued with a good deal of
force, that, when the whale was first seen from the
Richmond, it was enjoying its natural liberty, a fair
prize TO the first captor, not being even pursued by
any one. and that her boats were first lowered in pur-
suit. II is true that active pursuit. on the part of the
Oregon, had been relinquished when the whale became
lost in the darkness Of the previous night, for pursuit
implies that the game Is in sight. But after pursuit
became impossible, the Oregon maintained Il dligent
search for the missing whale, and, rs soon as 1t was
again discovered, resumed lis active pursuit. Were it
not for the fact that the officers Of the Oregon had
~ ned I N the Uurzut with the means for caUturlnO the
whale, and given notice 10 the Richmond's officers be-
fore they struck it. l should feel it my duty without
hesitation. to hold that the whale belonged to the
1t is said that the whale being free, the
boats of the two ships Joined in pursuit on equal terms,
and some evidence has been giving tending 10 show
that, as the usage Is understood among whaleInen, par
ticularly in American ships, even under all the cir
cumstances of this case. the Libellant had q right TO
capture the whale if he could ana to retain II. | am
not satisfied that the usage has been proven TO exist
so as to sustain the LibelLant's claim to that extent, and
if it were, l should deem it unreasonable. Surprising
the Libellant had retained possession of the whale and
cut it in, the Respondent asserting under protest, and
~intimating his intention of litigating the matter at
l should have thought it unjust to deny his
claim to at least a half of the whale. His crew under
went the peril of the first attack, wounded and partial
~ disabled the whale, rendering its final capture less
difficult, and with steven boats, were obliged by the
dars ness TO give up the pursuit, but on the whale being
again discovered, resumed the pursuit with "a fair
of success, and would it have been held then
that Respondent had no right to any part of the pro-
1 think not.
The question now IS, can the Respondent, in equity
aud good conscience retain the whole or is the Libel
ant justly entitled to q share of the spoil: True, the
Usage Of the whaling business has so far modified the
common law rule, that the officers of the Oregon need
lot have unremittingly kept up the pursuit, and
wounded the whale to such a degree as utterly to pre-
its escape and bring it within their certain control.
n order to preclude the claims of other pursuers. If
hey had been seen FIST 10 the whale, for instance, al
hough its capture was still quite uncertain. or, even
I they had been seen TO cut loose from 1t. but main
aiming an active pursuit. the officers Of the Richmond
you'd not have been justified by the usage, under those
in capturing and retaining the whale.
But the whale was free, although wounded, going to
yindward towards the ice at = good pace. The chances
or its escape were rather In its favor, and he would
e a rash man and a foolish, who would say on his
that he would certainly have captured that whale,
or il Is emphatically true. in the pursuit f whales,
hat :" there is many a slip 'twixt the cup and lip
When Mr.. Allen was pressed upon that point, he went
10 farther than TO say, that he thought the Oregons
,oats had as good a chance TO secure the whale as the
lichmond's. When the whale was struck by Rogers,
was behind the first streak of ice, and after having
repeatedly lanced it succeeded in getting under Il
hick piece of ice farther to windward. and Rogers was !
bliged to cut adrift from il, so that, as some of the
,arties have testified, they thought it very doubtful if
should ever see the whale again. But it did rise
gain, farther in between the streaks of ice, and Rogers
succeeded in getting his boat into the place,
gain struck and killed the whale.
Ii seems to me, that, und- all the circumstances of
he case, the whale may fairly be considered the joint
of both ships and l shall, accordingly, decree
the Respondent deliver to the Libellant, seventy
i've barrels of good :. bowhead - oil and one thousand
pounds of whalebone, of at least msdium size, and that
he costs be equally divided.
Nj. Harris, for Libellant.
Mr.. Montgomery, Tor Respondent.
Honolulu, 10th December, 1868.