The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1864-11-05

vent ashore, as the phrase Is. with everything
standing. Contrary 70 the opinion OF the Cap
tain and Mate, his idea i, that II II the time the
lib fOuled. The anchor had been cast and the salts
let 90. that the vessel would have been held. In
this, Makahi Is measarably supported by Capt.
Worth, whose view is, that If the anchor had
been let %, when be first saw the danger, that
there would, az al events, have been q better
chance foF s4Ting ,he cargo. and perhaps the
vessel herself. Makahi also indicates two other
I modes Of casting Of from the buoy By which the
I vessels safety would have been rendered certain :;
the fret, casting of without any sail on at ali.
by which she must inevitably have hoated out 70
seward or IL the lire had been passed aft 70 the
/ tndrail and fastened there from the bucy before
( casting of. Both these moIes are denounced by
/ Capt. McGregor and Nr. Fisher as being unsea-
manlike and likely 70 expose the Master to ridi-
cUle though Capt. McGregcr IN hIs cross exam
nation, admits that az Is seamaniIke 10 do what
10 most for the safety of the vessel, and that he
would not make sail, where it would add To the
! vessels danger. And | merely notice here IN
passing. that he draws q distinction that II =
square rugged vessel had been In tine situation oi
the Emma ROOks. she would have made sternWay,
and got clear of everything. He also states,
that the heavy swell, spoken Of by Fisher, Is OH
| the ROCKS and not at the buoy. Fisher Is posi-
tive also that could the iib have been got up,
/ the vessel would have cleared the land, and that
if the breeze lad not freshened, there would have
been no trouble in hosting IL. On the other
hand it is admitted by the Master, that it was
certainly possible 70 have got the vessel under
weigh without going on shore that If no sail
had been put ON TT all, she must have gone out
- sea ID safety.
Such, | conceive, to bc the essential abztract
Of the testimony in this branch of the case.
And the ali important question here arises before
the Court, under the Attn allegation OF the Libel
was the management Of the sail. and rudder,
negligent and unseamanlike? Before attempting
an answer, / desire TO dispose vi the matter Of
law involved.
And first as to what is stated in the lst Article
OF the Libel, that the schooner Eh1na RoOke was
engaged IN the coasting or inter-island trade of
tLe kingdom, and during the aforesaid month Of
January and for q long time preceding had been.
and ON the said 18th day of January was, a com-
mon carrier OF merchandise and passengers be-
tween the Port of Honolulu and the Port OF
HiIO and other intermediate Ports and landings
on the weather side Of Hawaii.
This allegation is answered by the admission
on the part Of the respondents, that the said
schooner, the Emma Rookie, was engaged in the
cOaSting and inter-island trade OF this kingdom
but whether or not as & common carrier, these
respondents cannot answer, and allegc that she
did carry merchandise and passengers between
the Ports of Honolulu and Hilo and otb.r inter-
mediate Ports and landings, not only on the
weather side, but on both sides of the Island of
Hawaii, and also TO and from ports and landings
On the Island Of Maui. Without deeming it
necessary here to review the testimony on this
point, l am satisfied from the proofs, coupled
with the above admission. that the Emma RO0le
was 4 vessel engaged by her owners in . business
which unquestionably in law would fix upon
them the denomination of common carriers. lia-
bic to all the legal responsibilities which such Il
denomination incurs.
If such be the character of the trade in which
she was engaged, are the respondents, in any
sense, liable for the negligent and unseamaniike
management of her master, should IL be made 20
appear, to the extent charged in the 9th Article
OF the Libel, viz: payment for the property lost
by the wreck? The general rule Of Law is clear
on this point, and il conciscly laid down by
Angel in his work on Common Carriers, at Sec
ton VI = In respect to the acts of Agents and
persons in the employment Of = carrier. the
maxim responded superior applies, and he is
equally liable for their acts and for his OWN
There are well known qualifications to this general
principle. to which the circumstances OF the
present case make ii unnecessary to recur. The
authority of the master in this Instance has not
been questioned.
1t was argued by The learned counsel for the
respondents, that it was not e%xpedient i'll this
country that the common law in this respect
should be adopted 10 it's fullest extent that the
Court might mitigate the stringency Of the rule.
In the Gaze Of Ia Note and Dupertail as. Il. F.
Angel, O.. =. Consul, before Chief Justice Lee.
Hawaiian Reports. although, the question Of
responsibility was not the direct issue before the
Court, yet. III deciding what was then before it,
the Court appears 10 have acknowledged the prin-
cille as applicable TO our status IA a commercial
community throughout. The rule of the Com
mon Law, says BrOnaen j.. Is founded upon a
great principle Of public policy it has been ap-
proved by many generations of wise men, and If
the Courts were now ~ liberty 10 make, instead
of declaring the Law, 1t may well be questioned
whether they could devise a system. which on the
whole, would operate more bene6cially.
And now rs to how far the loss Of the vessel
may or may not he attributed 70 facts or circum-
stances beyond the power Of the master to con-
trol.
The ordinary presumption Of the common law
IL rigid against the carrier III every case in max
ing him responsible, excepting only for those acts
that could not happen by the intervention Of
human means, or against which human prudence
and sagacity coald not guard. OF the cases cited
at the argument, two seem 10 have been equally
relied on as authorities, by the learned counsel
on either side but neither OF them, in my opin-
ion, so far as their circumstances are concerned,
furnish parallels 10 the case at Bar. In the case
of Colt and Colt rs. M'Mechen, 6 johnson r.
p. 159. the sloop was beating up the Hudson
River against a head wind from the lateness of
the season and the fear of ice, the Captain was
anxious TO reach q place of safety, and to which
he bad nearly arrived when the accident hap
pened, which was the sudden failure of the wind
under the shore, By which the vessel run aground.
The other case referred to in 81 Wendell p.
100, Macarthur and Hurlbert as. Sears, was that
OF 4 st : boat stranded in entering a harbor in
the n~ifam-hme, in consequence of the master mis-
~takinmat ii. sht upon a stranded vessel for the
usuaS;' a liz light.
Ins = COZ on the correct principle to be applied to the pres
the con- oPiniSCCu BY the Court Of a motion for a new trial. in !
tie Err is az, ,bove mentioned cases; where, after concurring
an ants q (which could no; happen by the Intervention OF
man Sc prevented by human prudence, yet that a degree ot
should - rave I'VE zen e = rfnS d 70 gGA r. Ss s.i , snTh = - probable babe
Il The wind in that casa ia EEeupi untO, n Sudleuu IN Or prE.