The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-04-07

this is, probably, a rhetorical flourish, whicl
occurred to him on the spur of the moment
|
Supreme COurt---In Admiralty
Keoni ALBANIA, ct ali, VS.. Frank Molteno, C
al Before Chief Justice Allen, in Cham
bers
This is libel in peJSo1sGma against the own
ers of the schooner Nettie Merrill, for salvage
The libellants, who were the first and secOnC
mates, and four seamen, allege that they wer,
attached to the schooner, and that she was
regular packet running between the port o
Honolulu and the ports of Koloa and Wal
mea, Island of Kauai, and that George W
Kinney was master; they further allege, thai
on the 10th of June, 1865, they sailed oil
board of said vessel for Koloa and Waimea
and safely arrived at the latter port; on the
Goth, the schooner left, on her return, as they
supposed, for the home port, in the usua
course of their coasting business. But they
soon perceived that the vessel was kept on
the course of S. S. W, which was not in the
direction Of Honolulu, but nearly opposite.
When it was near shutdown on that day, the
captain called one of the libellants, who was
the mate of the vessel, to his cabin, and said
to him that he did not intend to return to
| Honolulu with the vessel, but was going to
run away with her to Manila, and that if he
and the rest of the crew would aid him in
this, they should each have seventeen dollars
/ per month, and one hundred dollars on ar
rival at Manila, and if they refused he would
mate was intimidated and feigned an assent
to the proposition, after which, he called
the men and made known to them the pro-
position of the master, to which they assent
ed, as they allege, through fear of violence
Soon after, however, they consulted together
and agreed upon some plan by which they
would overpower the master and secure him,
and thereby defeat his purpose. On Wednes-
day morning, the 2lst, the schooner having
been continued on the same course all night,
and the vessel being well out TO sea, the master
NtaAAAS bAA ANNhi hAIL
took from him his loaded pistol and bound
him hand and foot. The vessel was then put
about by order of the chief mate, who as
sumed the command, and returned to the
port of Waimea and thence to Honolulu, ard
restored the vessel to her owners The libel
lants allege that the schooner was worth
about eight thousand dollars, and that had it
not been for the exertion of the libellants in
Selling the master and depriving him of com
mand, and their extraordinary fidelity in re-
sisting the temptation offered by the said
tirely lost to the owners. The libellants
claim remuneration for the service as set
forth in the BILL in the nature of salvage
The evidence fully sustains the allegations
in the libel, and the question arises, are ser
vices of this character, by the maritime law,
entitled to salvage? That they were meri-
torious, no one can doubt; but were they
not of such character as their duty to them
selves as men, as well as their duty TO their
owners, as seamen, imperatively required
them to perform.
The general principle OF maritime law is,
that the crew cannot claim salvage, for it is
their duty to save the ship and cargo if pos
sible, and it would be against the code of
ancient and modern times as well as against
good sense, to tempt seamen to permit the
vessel to get into position of extreme dan
ger, so that they might have the opportunity
by extra exertion, to save her, that they might
claim salvage. The exception is, when the
contract is at an end, either de .fdcto, or by
operation of law, or that the service is done
entirely out of the line of their duty. AS an
illustration of the principle most favorable
to seamen, will cite the case of the Mdry
Hale, which was wrecked on the Bahama
coast. 1t appeared that the mate and four
seamen, at the request of the master had
crossed the Gulf Stream in an open boat, and
in bad weather, q distance of one hundred
and eighty miles, and in great peril to their
lives, to Key West, to procure assistance to
take off the passengers and crew from the
wreck, and to save the cargo. They procured
assistance, by means of which, the passen-
gers and cargo were saved. The Court ruled
that these services exceeded the duty they
owed to the ship, and entitled them to salv-
age.-Marvin, on wreck and salvage, l6l.
This case is more in favor of the seamen than
the leading cases which are considered author
ity in England and the United States. The
Neptune, Hagg, Adm. 237; Holden Borden,
2 Sprague's Dec. IA; the Blaireau, Cranch,
240; the Avon, 10 Law Rep, 499.
The counsel contend that this case is anala-
gous to that of a recapture from an enemy
In that case the crew are prisoners of war;
their contract had terminated with the vessel
to which they were attached, by the capture,
and there is no pretense that they were
obliged to hazard their lives in retaking the
property The Two Friends, ! Rob. Adm.
271; the Beaver, Sd do. 202; Williams, VS..
Suffolk Ins. Co., 3 Summer, 30; Clayton, VS..
ship Harmony, Pet. Adm, 20. There seems
TO be a distinction between the law of
England and the United States as to the
rights of the crew of recaptured vessel.
Parsons says in a note in his second vol
ume of maritime law, that in England, the
crew may be entitled to salvage on recapture
as well as when the service is performed by
third persons, but in this country, 1.-THE Uni
ted States) it is certain that it is the duty of
the crew to remain by the vessel after cap
ture, till condemnation. 1t would seem,
therefore, that they did no more than their
duty in recapturing the vessel. In case of
capture, the officers and crew are overpow-
cred by O superior force, the vessel is taken
and the crew imprisoned. Here the crew
were not imprisoned nor overpowered; they
are only threatened, but have the physical |
power to resist the criminal orders Of the |
master.
The counsel further contend, that when |
the captain avowed his intention to run |
away with the vessel that the contract of |
the seamen with the vessel ceased The |
modes by which the contract with the sea-
men may be dissolved are, by the discharge |
of the master, or the abandonment of the /
vessel. Neither of these events had trans /
PRED The master asserted right to the 4
vessel equal to the owners, and demanded |