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

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Justice DAVIS delivered MS decision IS follows
This is q suit brought by the plaintiffs, pro-
p~rietors OF g certain plantation in the district OF
Hi!o, Island of Hawaii, known a. the h4i"lki
Plantation, on the Admiralty side Of this Court,
% recover from the deiendanEs. lately owners OF
: certain schooner called the EDt'l9 R0ose, the
value Of 6GD kegs Of sugar and 30 DbIs- OF mo
LGses, alleged u have been utterly los; upon said
schooner by her being wrecked.
Tho llding 0f the sugar and molasses on board
j. admitted in the answer. The circumstances Of
the wreck Is gathered from the testimony appear
to the Court a. follows
The Emma Rookie left the port OF HiIo on the
l9th of January last, and without touching az
any Intermediate port arrived AZ q place named
IOnoipu, on the coast Of kOhala, Hawaii, early
che following morning, made fast TO q buoy till
near nine \. NJ, when she cast OF, with GONE
PORTION Of her sails set and within ten mn
ute5 thereafter struck upon the rocks - the
southwark, soon after becoming u total wreck.
A disaster 80 sudden makes all the incl
.!euts OF anchorage, wind, weather, distances as
we'll ~ the management OF the vessel and th"
character Cf the vessel itself. OF binding import
sncs in the proper adjudication Of the Gaze.
As u the locality, IL will be seen irC,u the
plan or chart made By Capt. Berrill, and sub
mitted in evidence, that HonCipu is Ut OF near
the northwest point Cf Hawaii that 1t IS an in
dentation Of tho coast, more like an open road
,tead, than : harbOr or bay, opening wide TO the
westward.
According to Capt. McCEegor, n witness for
the respondents, and who assisted Capt. BerTill
in making che SURVEY, the usual anchorage IL
close TO the buoy, distant from the south point
200 fathOms; but that from the buoy TO the
nearest shOal TO the nOrthward Is lOi iathOns, a
lot Of small rocks, extending from north point
merely washed with the water, distant from buoy
30 fathoms. Towards the south point the 8ater
"a deep TO near the shore. He says, he has run
many times close 20 south point in the steamer
KiiqueQ from his statement, 1t seems the prevail
ing wind IN the morning Is on shore, square from
the land till about 10 or ii O'Clock, y. NJ, when
the trades come down, not generally farther 10
the North than E. ". E.. over the land. But
that the wind is more to the southwark in winter,
than any other season, on account of the UnsteadI-
ness of the trade winds. The trade riad III the
morning comes dOlCH an puts till about 10 or III
O'Clock, \. NJ. As Capt. McGregor's statements
in this regard are not materially varied, If any,
by the other witnesses, and on account of lis
intimate acquaintance from frequent visits, with
the place, | have relied IN regard to the winds
upon his statements. On the morning of the
disaster, none OF the witnesses testify that the
weather was tempestuOus, or the sea rough, or
the wind blowing from an unusual quarter hut
on the contrary, Capt. Worth states that the
weather was good, the usual weather of that
region, the ocean not rough. La this, he is cor
robOrated by Makahi, = native seaman on board.
Mr.. Fisher, the Mate, also says, that on leaving
the buoy the wind was light aud blowing OF
snOre, out increased Till tueV got on suOTe. capt.
Berrili himself states that the wind was OF shore,
blowing from a point about (. 5. T.. Now as TO
the manner in which the vessel was attempted ~
be put to sea, which is undoubtedly the material
question Ut issue, yet more or less affected by
facts TO be deduced from Otl:er important features
OF the case, having q bearing upon the main
point, l do not purpose 10 follow the entire
nautical analysis, made out by the experts, by
men whose business from early life has been,
either IN square rugged or fore and aft vessels, to
follow the sea. | must determine, whether from
the light they have bestowed, 1t may be fairly
inferred (the state of tho winds, weather or Of
any other facts OF u similar character being estat-
lished 20 my satisiaction) that there was any lack
Of THAT prudence, skill or caution on the part of the
Master, AS TO make out the essential ingredient
Of the plaintiffs case, 10 he ascertaiEed by the
Rules Of Law. ~ applied by Courts of Justice to
cases Of q like nature. IL is cOntended for the
respondents, that the management of the sails
and rudder. under the circumstances, was just
what IL should have been, and that the casastro-
phe was the result of a fUrtuity against which
they could not guard, or III other words that the
misfortune WIS Inevitable. As before remarked,
| 10 not discover from the testimony of the wit
nesSes present on the occasion, any material dis
Creplucv, rs 10 the wind or weather on the morn
ing in question, when tie vessel was cast of from
the buoy 10 be- got under weigh, and ! proceed
ne once % examine the evidence, as 20 the man
Ter in which she was endeavOred TO be put 10
sea. Witnesses agree thar the foresail and main
sail were up. Bcrriii says that on casting OFF
from the buoy the main leak wac down Worth
cannot say whether 1t wis down Or NOT; Fisher
is OF opinion it was mover raised at all, although
he II not positive rs TO the exact position of the
after sail, as le was occupied forward Makahi
says, the peaks of both sails were slack. From
Capt. BerTill's aud Fishers statements it further
more appears, that the tOre-bODm was guyed 10
port and main to starboard peak of f0rcsiil up,
wind being favorable for casting vessels head to
southwark, the helm being put hard TO port
that the Vessel canted, the order TO hoist the jib
given, and while the order was being Obeyed, the
Ib was blown over Oy 4 gust or puff of wind,
and caught over the lee anchor stock, and before
1t could DO cleared and fully hoisted, the vessel
struck. AS to thi, mode OF getting under weigh,
there seems 10 be some difference of opinion
among the experts examined 1t the hearing.
Capt. Mctiregor, a seaman OF long experience,
both IN square-rigged and fore and aft vessels,
lays down the same mode. had he been In COM
mand OF such a vessel ut the time, as that adopt
ed by Capt. Berrill, and says ne should not have
had the slightest apprehension, but that the vessel
would have cleared the land. Capt. Worth, al
though an old sailor, yet not familiar with
schooner sailing, would have hauled the fore
boom to starboard side and the mainsail to port
side as to the placing of the helm and time of
hosting jib, II being the intention of the Master,
20 cast her head off shore. be does not differ from
Berrill, McGregor and Fisher. But his recollec-
ton IL, that the forcsail was on the starbOard
side as he would have placed il. Makahi, q
native seaman on board and accustomed 10 sail
ing IN the coasting vessels, and at enc time Z
mate or ID mate on board Of the schooner LihO-
hhO, also testifes that at casting of, the mainsail
vas guyed over 10 starhOard side and foresail 70
port side. and that the jb was hoisted when the
line was cast of that IL was got half WAY up.
became foul that 1t was cleared, they hauled
again upon IL, and before it was quite up. the
Captain ordered the jb sheet 20 be hauled over
TO Wiudward, which order was immediately fol-