The Hawaiian gazette., 1870-12-14


of seamen abroad, it would have been shown by the
respondents.
Under the general maritime law, there are certain
cases in which the seaman himself may regard his
contract at an end in a foreign port Curtis
Rights and Duties of Merchant Seamer, 55 and ci-
tatious there made. 1t probable that consular
authority to exercise the judicial functions incident
to dischargng seameu, rests solely on statute, and
does not exist virtute ofteii. 1 Keut's Comm, D.
81; Eots Dpl. Code, p. AS; Phillimores
Int Law, p. 245; Halleck's Int. Law, p. PSI;
Wheaton's Int. Law, no. But where the mariners
contract is put end to by the action of the MASTER
or in cases like the condemnation and sale of the
vessel, Consuls would undoubtedly use all their le-
gitimate power TO assist the in obtaining fair
settlement, and in returning to their own country,
pursuant TO the policy and interests of the country
they represent There is however no direct evidence
that Mr.. Severance discharged the men, and uuder
the circumstances perhaps that matter is inmate
rial 10 the merits of this cause. The remarks of
Mr.. Justice McAllister are in point, in the recent
case of Campbell ct al. steamer Uncle Sam /
McAll., 70: ':Such being the conclusion the Court
must consider that, released by the breach of the
contract by the claimants, the seamen were entitled
to their discharge according to the general principles
Of the tG'c merchant, without the Intervention of the
Consul at Panama. The Acts of Congress on this
subject are cumulative, made for the protection of
seamen, and with a view to afford them a prompt
remedy; certainly not to withdraw them from the
protection of the Courts. Whatever had been the
action of the Consul the form of his certificate
whether legal illegal, regular or irregular-it
could not be conclusive upon this Court nor shut
its doors upon the libellants The question
is, were the bellants entitled to their dischargeg
After the breach of the contract by the claimants
and the detention of the libellants arising out Of
that breach, for upwards OF a month at Panama, l
consider them entitled to such discharge"
[Consflar settlement IN San Francisco The men
shipped, according to the articles for term not
to exceed twelve months, until the SAID bark
Mauna Loa shall return to these Hawaiian Islands
proved that takes place before the expiration of said
term" On the 9th day of August, when the agreed
term had nearly expired, the master cleared away
from the sealing grounds in the Oehotsk Sea, and
instead of making directly for Honolulu, saw at to
put into San Francisco and there remain until Sept
15h nearly month alter tbe term. While the vessel
was thus delaying in San Francisco, the Hawaiian
Consul required u settlement with the crew at San
Francisco rates, on the discharge of the cargo and
the expiration of the twelve months The master
certified the amount of the cargo and mems accounts
with the ship and the Consul obtained a valuation
of the furs at So each and gave the men orders on
the Honolulu Harbor Master for the balance thus
ascertaiEed. The men worked the ship back to this
port and received S14 each for the extra service
On arriving here, they refused payment of their
orders on the Harbor Master, who paid them at the
valuation of the U. s Consul of sl.5O aud dis
charged them. The answergives the Hawaiian Con-
sul's reason for insisting a settlement in San
Francisco, and the arguments were made on tue as
sumption of sie and delivery of the cargo there
[Clause concerning The u s. Consular rateI Iu this
connection l will consider the force of the clause
in the articles under the head of Remarks" that
' These men are to be paid off at the o. s. Consular
prices in cash." &c II this clause were held to be
binding these libellants in case the cargo had
been brought to the home port so that il could
have been inspected and valued here is it binding
on them ;he case which occurred, of a prolonga-
tion of the voyage for the purpose of discharging
the cargo in foreign port, and of its discharge
there? think not The crew, in case Of the loss
of the vessel, would have had no remedy for their
wages except against the owners, after they had
parted with their lien on the cargo and no means
of reaching its proceeds in a distant country In
such cases. do not think the master can compel
the crew to part with their lien without settle
ment in the foreign port. They were entitled to
their interest in the net proceeds of the catch at the
port of discharge, there was no stipulation for
the discharge of the cargo away from the home port
No other view would ensure to seamen their rights
under the contract, or ready of proving or
disproving the correctness of the u S. CousuIs val
uation. Tue respondents action has placed it ont
of the power of the libellants to obtain any other
valuation than they themselves present unless the
Hawaiian CoUsuls be received, or on evidence ex-
pensivey reached. l say this without intimating
that the U. S. Consurs valuation was unjust but as
statement of the law appybg in all easel of this
nature. 1t would be unsafe precedent to require
seamen to ue hound by valuation made here, when
the cargo was sold and delivered abroad or to re-
quire them to postpone their settlement until the
return to home port, thereby risking the loss of
everything if the vessel were lost on the way In
cases of the breaking up of the voyage in foreign
port, the would not be Obliged to take Consular
prices here. See Hathaway VS.. Jones' 2 sprague
So The Speedwell, Haw, 426; Rice vs. Spencer
h., sos
We come, then, TO the conclusiveness of Mr. Sew
erauce's valuation 1t probably made at San
francisco cash. rates, with proper deductions for
charges but as | know statute power authorizing
him to compel the owners to accept it, they are at
liberty to dispute 1t. Inahe absence Of evidence of
the basis of the valuation made there or of the one
made in Honolulu, of evidence on which can fix
the value shall refer it to Master ascertain the
net proceeds Of the cargo, its net cash value
the port Of discharge in San Francisco. The same
result would follow II the clause concerning Con
sular rates were held to be binding. An umpire's
valuation award Is not final in any Of palpa
bic mistake or want OF means or evidence on which
to base it. Knox VS.. slmmonds, Yes, 369; Nor
gan vs. Mather, Yes. Jr, Is; story's Eq Jur,
sl45l, ct seq. No other result would follow if the
clause in question were not known or assenied to
by the lbellants. The evidence shows that this
only the second voyage of the kind from this port
Consequently there was no custom which could
have existed, which the ibellants may be presumed
| TO have known. The clause, in fact, was not ex-
planned or interpreted to these natives. The re-
spondents therefore, argue that they entitled to
the benefit of previous parole statement TO the
belIsnis that they would have 81 % for small and
81 so for large SKINS and their assent thereto. In
favor of seameu the rule OF law against introducing
parole testimony of previous contract to vary the
terms Of subsequent written contract is relaxed,
and this for urgent reasons. Lord stowell, in the
Minerva, l Haggard, 353 remarks upon 'the ex-
treme disparity between the parties to such special
contracts. On the side, gentlemen possessed OF