The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1863-12-17
THE PACIFIC
Commercial Advertiser.
SUPREME CoURT--Iu Admiralty.
John Heppings'One1 A, Chambers. before Justice
E-
John Mamuen- ~

John Mamuen- SROBERrsoS.
JUDGMENT.
The Ebelant Is Master Of the whaling bark RicL
mond, Of New Bedford. and the respondent is Maste
of the Olienburg w~haleship Oregon. The object Z
the libel Is 10 recover the whole, Ut a share Of the pro
ceeds Of a whale, known to whaIemen as q 8 bow
head" captured in the sea of Ochotsk on the 30th Q
May last, which yielded one hundred and fifty barrel
OF oil and two thousand pounds of whalebyne. Th'
evidence IN the cause is very lengthy, and somewha
conflicting, as might be expected when many OF tA'
witnesses are interested parties, and L viii state, VIII
a view TO q proper understanding of the decision
what | regard as having been proven in substance
Late in the afternoon Of the 29th Of May, while the
boats of the Oregon were down, one Of her officers des-
cried q whale, and the boats going IN pursuit one OF
them struck and got fast to il. The whale ran fast so
that the other boats We're unable 10 get up to II. There
was n good deal of floating ice around After the first
boat had been fast to the whale for about two hours,
during which time IL h d been lanced once or twice md
showed thin blood in its spout, the boat was dragged
against some ice too thick to be penetrated, so that the
line had 10 be cut, and the whale disappeared. 1t was
then about shutdown. The three boats waited a few
minutes, but as nothing was seen Of the whale, the Of
fcers resolved to return 10 the ship. Unexpectedly,
the whale rose again between the boats and the ship.
Mr.. Costa fastened to the whale again, bat his boat got
stove. Upon a signal being made, two fresh boats
were lowered from the Oregon. Mr.. Lupson fastened
TO the whale, while Mr.. Allen picked up Mr.. Costa
and his crew. Mr.. Allen pulled up near the whale
and shot q borb-lance into il, causing it to show blood
freely in its spout, and then pulled TO the ship. The
whale came near the ship. and Mr. Allen fastened to
il. just as it was going d1wn. When it rose again Mr..
Terry tLEuc. IT, MAKING three DOats last ME-. LQD-
sons boat got into u strip Of ice and had about 400
fathoms of line out. Mr.. Allen gave the whale a bomb
lance. Mr. Terry gave it q hand lance and go; his
boat stove. Mr.. Allen succeeded in lancing the whale
again, and it appeared disabled. The ship was within
= quarter Of a mile, and IL was dark. Mr.. Terry and
his crew were IN the water calling for help, and MIR.
Allen cut his line AID went and picked them up, car
rying them to the ship. Respondent ordered Mr.. Al
len off again in pursuit of the whale. and on ap-
proaching Mr.. Lupson who was still in the ice, he told
him he was still fast to the whale. but on hauling in
L. L.. .-z--- II. 4
drawn from the whale. and the warp of the other had
been cut by the ice. The whale had disappeared, but
the officers, expecting that it would die before daylight,
stuck q boats mas; with a waif on q cake Of ice TO
mark the place where they had last seen it. They re-
turned TO the ship at ten O'Clock. During the dark
ness the ship was kept near the spot. and by three
O'Clock Mr. Costa lowered a boat and went in search of
the whale BY six o'clock he returned on board with
the waif which he had found, but had seen nothing of
the whale. 1t was foggy till about half past nine,
when Mr. Costa went aloft with q spy-glass, on the
lookout. The ship was steered in the direction il was
thought the whale might have taken. After Mr.. Costa
had been aloft tor about an hour, he saw n whale on
the lee bow, heading to windward, and Immediately
alter called out that a bark ahead, some three miles off,
and on the opposite tack, was lowering her boats.
Capt. Mammen went alo!t and taking the sDy-glass
said he thought he saw something sticking on the
whales back. He ordered Mr.. Allen and Mr.. Lupson
TO lower their boats, telling the former to warn the
Richmond's boats off if it should prove to be the mis-
sing whale. Mr. Allen and Mr.. Lupson went along
under sail, but the whale having got to windward OF
lhc ~ tucJ SJDk LO tnelF oars, VII. Vile hosting n 1
waif- When the whale went down again Mr. Allen
got up to Capt Heppingstone's boat, and asked him if
the whale had harpOons in its body, to which the latter
replied that he thought il had. Nr Allen told him
he thought 1t was the same whale the Oregon's boats
had been obliged to cut from the previous night, and
that there were four or five harpoous in It's body. Ii
beliant called to his officers to strike the whale if they
got an opportunity to do So 1t rose behind a point of
ice. near the boat of Mr.. Rogers, the third mate of the
Richmond, and he fastened to it. The whale did not
sound, but ran z short distance near the sarface, when
Mr. R1ypr9 lanCpI II savaraI riueS o. did airo q, hoo. /
steerer OF another Of the Richmond's boats. mortally
woundins it. MIR. Alien pulled close TO it. and his
boatsteerer said he recognized their harpoou poles in
It's body. Allen then told Litelant that be was sure
it was the same whale. Libellant asked him-if their
harpoons were marked. Allen told him some were
marked and some not. He replied that if the harpoons
had the Oregon's mark, that would prove it was their
whale, or the whale they had struck, or something
like that The whale got under a piece of ice and
Rogers was obliged to cut his line, but il came ND after
o time in a patch of clear water, and Rogers. having
got round the intervening ice, killed it. Libellan. and
the officers OF the Oregon then held a parley, and pro-
ceeded to cut out some ~harpoons. The first one found
bad no marx, but the second and third had the Ore
CONS marks Libeliant proposed TO Mr.. Costa To let
him have half the whale. but the latter said Iibellaut
had better go on board the Oregon and speak to the
respondent Libellaut said he did not know that by
law he could demand half, but thought he ought to
have it, and, giving orders to his officers to assist in
towing the whale clear Of the ice, pulled away towards
the Oregon. saying he did not give up the whole till
he had seen the respondent. LibelIant went on board
anil saw the respondent, who refused TO give him half
the whale, whereupOu fibellant left, saying he would
see about 1t at Honolulu, and soon after signalIed his
boats 10 repair on board the Richmond. Mr.. Wilcox
and the hbellant have testified that the respondent,
since the return OF the ships to Honolulu, admitted IN
conversation with them, that his boats could not have
secured the whale without the aid of the Richmond's
boats; bot respondent denies that he ever meant 10
make such admission.
The case IS q novel one in this court. and somewhat
perplezing. The several masters of whaleships who
have testified IN the cause, concur in saying tina, they
have never known II case precisely like This Accord |
ing to the English common law doctrine, exclusive
property in animals tsTe JlGtuVe. may be acquired by
their immediate manucaption, or by taking and killing
them and also hy the wOuuding of them, by one not
abandoning his pursuit, IN such "A way as to prevent
their escape and bring them within his certain control,
and By encompassing them with nets and tolls, or
otherwise inteTceptIng them, so rs TO deprive them of
their natural liberty and render escape impossible.
But merely starting and pursuing them gives no right
of property and therefore an action cannot be sup
ported against one who intercepts and kills them in the
(See Bacon's Abr. Vol. 4, page 43I Buster Us. New
kirk. Johnson's Rep Vol. 20. page AZ
Ii IS argued on behalf Of the libeIlant, that, if the
present case IS to be governed by the doctrine just re-
ferred TO. the whale belonged to the Richmond, because
her men found 1t loose, attacked and killed it. On the
other hand, il Is cUntended that the English common
law rule should not be held applicable TO such q case,
and even If II were that tine whale belonged 10 the
Oregon, whose men first attacSed and wounded, and
afterwards resumed the pursuit OF It, before the Rich
mond's men struc< it If the case were TO be decided
that the libellant, having voluntarily parted with the
possession of the whale to the respondent, with a full
knowledge OF all the facts, hid precluded himself from
maintaining an action TO recover back the proceeds OF