The Hawaiian gazette., 1871-02-22

her being seaworthy, and also as to the rough
weather. He says that the schooner lay to under
trysail and jib at one time, and that gale made
hole in the jib, and parted the Ayingjib
stay. At times, part Of mainsail was close
hauled. He says, further. that the water cane
on board over the bows, amidships and quarter.
and that the vessel labOred heavily most OF the
way down. He says that the schooner laid to
part Of one day that the foresail was double
reefed that reefs were taken in the mainsail
that the trysail was set that the mainsail was
old; that the trysail and foresail were good.
The first question to be settled is as to the
seaworthiness of the vessel. 1t appears that the
vessel in the opinion of these witnesses, who
have sailed her on this voyage, is staunch and
strong, and in all respects seaworthy that she
encountered gale Of wind and heavy sea- They
are all experienced seamen. The officers were
well acquainted with the sailing of schooners,
and the Court is obliged to regard their testi-
mony unimpeached as it is, as conclusive in the
absence of all opposing evidence.
The next question which arises is as to the
suficiency of the stowage On the arrival Of the
schooner the U. S. Consul, at the request of the
master, appointed Capt. MeGregor. an expert
enced shipmaster, to make survey Of the
hatches which he did, and be testified that they
we're well secured in all respects, and that the
cargo was well slowed with proper dunnage, and
that it had not shifted but it was owing to being
wet with salt water that the injury arose the
leak was from the deck as the water appeared
to have run from one bag to another This tes-
timony is in corroboration Of the testimony oi
the second officer, who superintended the stowage
of the vessel.
But it is contended by the counsel for the Lii
bellant that it was unsafe to have had deck
load of lumber, especially when carrying an
assorted cargo. II is in evidence that the cargo
did not shift, although a few boards were blown
off by the gale. The vessel was deep in the
water and Capt. Babcock says that it is not
heavy deck load if the vessel was strong The
mate says he thinks there was some 80 NJ. on
board, above and below but that on the Coast
this vessel would carry 40 NJ. or 90 M. on deck
1t is very evident therefore that this was not an
unreasonable deck load for a ssawor.hy vessel.
1t is contended, further, that as the leak was
made on the second day out, and near the Fara-
ellones, it was the duty Of the master to have
returned to San Francisco but the second Off
Ger says that it would have been unsafe to have
returned as there was a gale of wind and a
heavy sea from the southeast and southwest
The decision of a question of this sort must be
left to the discretion Of the master; and unless
it appears that he was reckless, it is not proper
to hold him responsible for any advantage which
shippers may suppose they would have derived
on taking different course. 1t is very evident
that the -four was injured before they possibly
could have made sail for San Francisco, and more
especially before she could have reached that
port
The Respondent has shown that the vessel en-
gale of wind and boisterous weather
aud that she labored heavily; that the sea broke
on her amidships and on the quarter, and that
she shipped much water, so that it was necessary
to keep the pumps in almost constant operation
to keep the vessel free. 1t is very evident that
the leak was occasioned by the strainng of the
vessel in the gale and heavy weather encountered
liteT ieafihg tue port OF San Francisco.
After carefully examining the testimony and
The principles of law applicable to it, | am of
opinion that the damage arose from the daDgsrs
If the seas. within the exceptions of the bill Of
aiding and therefore the libel must be dismissed
with costs.
Let judgment be entered accordingly.
January 9th, 1871.
A. f. Jndd and F. Fl. Harris Proctors for Ii
1ellant.
r. II. Stanley Proctor for Respondents.