The Hawaiian gazette., 1870-12-14

Tue luIs' anu eNluently nXeu IOr tue dement, Oi
foreign owners, an in conflict with the rights
and interests of subjects of thiszK ingdom-
The shipping articles contain the provision
that the bark is bound on whaling, sealing, OF
trading voyage, for term not to exceed twelve
months, or until the said bark Mauna Loa shall
return to these Hawaiian Islands, provided that
takes place before the expiration of said term Of
twelve months" The libeIlants names appear
on the articles with their mark" witnessed By
Dan1 Smith. In the Hawaiian version of the
articles, the blanks are not fill ID out Under the
column of Remarks is the following: These
men are to be paid off at the u s. Consular
prices, in cash, at the Offices appointed by law
according to an Act to regulate the shipping
and discharge of native seamen' approved at
Honolulu, June "a, 1855. The Master will pay
to the Shipping Agent 30 cents on shipping and
30 cents on discharging each man.
Capt. Daniel Smith for the libellants, testified
that he received from the Hawaiian Consul in
San Francisco, the accounts of the crew of the
Mauna Loa which are filed, marked Exhibit
b; also an order for payment. That he did pay
them here, Oct /. 1870, at the rate of 81 80 for
each skin, (the men objecting somewhat, and say
ing it was only one half and that the owners made
two Of them a present of SO, and on cross
examination. that the U. S. Consular rates are
always the rates we pay off at. 1t was
fully explained TO these men that they would be
paid off at s. and Sl.j0, at Consular rates. =
Pauhiwa was the first one to take it and settle
| also paid them Sl4 each, by order of Mr.
Williams. ! shipped them as agent of the Gov.
eruor for shipping Hawaiian Seamen The Cap
tain executed bond in the sum of $500 each to
return them. After the men returned, mus
tered ana discharged them"
Re direct. Il don't understand the Hawaiian
language sufficiently to speak myself; rely on
my interpreter | told these three men explicitly
that they were to have 81 for small, and Sl5C
for large skins. | heard they were discharged by
Mr.. Severance at their own request, after the
twelve months had expired, but | don't know
it."
VIM. Pfuger testified that seal skins we're in
his opinion worth here from 81 to $3.50, accord
ing to size and quality; that they were usually
damaged 10 to 10 per cent. in pntting up, and
were worth more if taken in high latitudes than
10 low
Kahanu, Capt. Smiths interpreter, testified
that by Capt. Smiths order he told the bellants
when they shipped. that they were going sealing
at rates like other vesse in the same business
viz. Sl.50 for large, and'S for small skins, and
on cross-examinaton, that he did not hear the
articles read. but Capt Smith explained to each
man as he signed, his lay advance, and that be
was going sealing. No one read the arti
cles They were in English. l did not read
them. Capt. Smith talked in English" Thi:
was the second sealing voyage.
Exhibit " shows the accounts of the libel
ants as made up by Mr. Severance in San Fran
cisco. Sept. 15,- 1870, whereby it appears that
the balance due Pauhiwa, by ConsuIs order OF
Honolulu" was S344.50; due KokuIu, do.
Sl35.52 due Nahnu do. ST3O2.
W. C. Jones, proctor for the libellants, relied
on the following authorities: Oh. Il, Comp
Penal Code - Sum, I44 Abbott on Shipping
p 227, n. l. Flanders Shipping, s28O Oh.
Civil Code
R. H. Stanley, proctor for the respondents
We claim that the libellants have fairly settled
with US for Sl.50 for the value of each tur, anG
Sl4 compensation for extra time. The men were
to be discharged and settled with at Consular
rates at this port The item about U. S. Con
sular rates was not explained to the lbelIants
but the Hawaiian Consul in San Francisco haC
no power to discharge or settle with them. Thai
was to be done, according to the law and by the
contract, here The written agreement of the
shipping articles is the only evidence of the con
tract Coweu, 543: IA Johns. 259 2 Bos. &
P. ll6; Comyn's Contracts, 1863.
Neither the law, the rules of the Foreign OF
fee, nor the policy of the country, gave the
Consul the power to discharge these men. The
policy is to return all native seamen to the por
of shipment, and the masters bond required bin
to do this. Sl46 Civil Code The seals were
taken at Saghalien, and were not worth oyel
$3.50 at the outside But there is no evidence
of the value of these skins.
JoHesf 10 Eepig nc hOelidutS uau d HCh VI
that cargo. which was sold in San Francisco by
the respondents. They we're entitled to a settle
ment, and to their discharge on the sale made
there. after the expiration of their term of ship
ment There is no mode Of fixing fairly the
value here. There is no market. The true test
is the value which they netted
PER CURIAM
Receipt not conclusive. The argument that the
libellants agreed to a final settlement which bar
their right of action is unsound. seamans receip
in full is only prina faeie evidence, not conclusive
of his rights, and may be rebutted by evidence o.
mistake or imposition. The WsiIua, 2 Haw., 1854
the Mary Paulina, spr., 45 the Commerce, h.: IS
PAYNE vs. Allen, ID. 30I; Jackson vs.. White, Pc
ter's Admy, 179; Thomas vs. Lane, Sum-, II
Harden vs. Gordon, 2 Mason, 555-
Intent Of Shipping Aetsl Statute regulations fol
the shipping and discharge Of native seamen have
two-fod object first TO secure the interes's OF the
seamen; secondly, to secure to the Government th,
return of the seamen to this country, which is ar
object of prime concern to maritime nations. shil
owners do not require the aid and protection o.
special legislation although they receive the benefit
of these statutes in various ways But the Shipping
Act does not make them responsible for dis
charge of seamen by Admiralty Courts or Consuli
abroad. for fault on their.p T. Parsons Ship
ping and Adm'y, PIP. 81, S. s.,i sotes.
[Consaa's po.usr to diseaargsl English and Amer