The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1873-03-12
HONOLULU,

dangerous 10 the puDc health; ana IN the other, a
landing OF foreign goods from foreign vessel, or
Hawaiian vessel from foreign port at any other
port than port Of entry, viii make forfeiture.
The very act of landing the goods, by the express
tenor of the law, makes forfeiture. The omission
to place on the inward manifest list of goods,
makes the goods liable to conhscation although in
this case the errors may be remedied when it shall
be made to appear that there was no wrong inten-
ton or gross negligence. The landing of passen-
ger, although sick with contagious disease, if not
developed, may be explained but the proof is on
the defense to show that there not clandestine
introduction of the disease and that there was
sonable care in the examination of the vessel and
the passengers on board.
The disease with which the passenger Fletcher
was afflicted was doubtless more developed when
this examination took place by the physicians in
port than when he left the vessel the day before, and
it is not surprising that it should have been called
rash or erysipilas by those on board There was no
suspicion of smallpox among the passengers, except
in the mind of Capt Briggs, and he did not make it
known to the physician any else on board, as
it his duty to have done II is very evident that
it was not known by the officers of the ship that
Fletcher afflicted with smallpox when landed
here, and therefore there could nothave been clan
dcStiae introduction of the disease.
The next question, and far more difficult one TO
decide is this Was there such effort TO ascertain the
state OF health OF the passengers would probably
have created a suspicion that contagious disease
was on board? Generally, when person is Sick the
PHYSICIANS attendance and advice is solicited. In
this case however, it is evident that there was de-
termination in the mind of Fletcher not to call on
A. L
confidence in the physicians who are employed on
passenger vessels than in the regular physicians in
port, and hence from him the physician on board
the steamer received no knowledge of his case, or
from any else, or a suspicion that he was labor
ing under any disease. There was nothing TO excite
his suspicion that the smallpox was on board. He
testifes that he daily visited and examined the
passengers; that be was not aware Of any one hav-
ing smallpox; that he did not know Fletcher, and
that no request made TO him to visit and admin
lister to him II Is in evidence also that there was
daily examination of all parts of the vessel and it
is not pretended that there was any negligence on
the part of the physician in attending upon passen
gers when called upon. This is all the precaUtion
which is usually exercised passenger ships, and
it is generally sufficient; and would have been in
this.case had Mr.. Fletcher exercised the prudence
which most persons do when sick, of consulting the
physician on board.
Ii is very evident, either that Fletcher did not
know his true condition, or he had singular disn-
clination to make it known, as was illustrated by
bis account of himself to the physicians on shore.
Had the physicians attention been called to him. it
being the day before Drs. Hutchison, Hoffman, and
McKibben examined him, it is very probable that
he would not have called it smallpox, still should
have been of opinion that il would have been the
duty of the physician to have reported the case to
the captain and his duty to inform the authorities
before permitting him to land that he afflicted
with q disease that might be contagious, and on
failure TO do this it would have been clandestine
of the disease if it proved contagious
But in this case, knowledge of the disease is not
traced to the master the physician, and
able diligence on their part is proved Had Fletcher
made known his case to the physician, although the
nature of the disease might have been obscure still
it was of that character that should have created an
apprehension that it was a contagious disease, and
my opinion upon that state of facts would have
been, that reasonable precaution had not been
exercised as it would have been their duty to have
prevented his landing until at least the authorities
had opportunity to have examined the case, and
made decision of the proper course to take 10 pro-
tect the public health
The counsel for the libeant very properly asserts
that the Legislative Assembly had right to pass
ws to preserve the public health by preventing the
of disease either by fraud, accident,
negligence mistake, and the question in this case
is, have they passed law having this power? Had
the language of the law been that any vessel which
shall be the means in any way whatever of introduc
ing into this Kingdom any contagious disease, shall
be liable TO seizure, confscation and SALE the posi-
ton Of the counsel would have been sound; but
am Of opinion that the word clandestlne was pur-
posely inserted, to protect vessels from forfeiture
by the fraud, negligence, peculiarities of passen
gers. It would not be difficult for one afflicted with
contagious disease to conceal it on the passage as
it appears in this very case and make forfeiture
of the vessel should only be done by clear and ex-
press terms of the law. Was the vessel the means
of clandestinely introducing the disease? 1 hold
that there is material distinction between the YES
sci and its passengers If the vessel introduced it
it must be through the instrumental
ity of its own agents, by their negligence; but
the vessel is not liable by any rule of construction
of this law for any secret conduct of its passengers
which reasonable vigilance could not prevent or
detect 1t would be dangerous to vessels to be sub
jected to a more rigid law than our own, under the
which have given it, and which, as it
seems TO me, is the only of which it is suscepti
bic. Laws are not made to repress commerce and
navigation, but to regulate intercourse between
nations, and it would be a rare instance that
q vessel could escape responsibility, under the
which l have given Persons who
are i'll usually make it known, and call on the
physician Of the ship. 1t causes no expense
to the party. Had there been no physician in the
service Of the Nebraska, and whose duty it would
have been to attend TO all cases Of Illness should
have been of opinion that the vessel would have
been LIABLE for want of proper attention to the
dition of 1.-THE passengers, and probable want Of
knowledge But in view of that service, in the dis
charge of which there is evidence of negligence
or inatention and in view of the fact that the na
ture Of Fletcher's disease when he went on shore
was obscure, not to excite any suspicion or
among the passengers, and to battle the
Judgment of eminent physicians on Shore and also
from the fact either Of studous effort to conceal
the character OF his Illness or strange disinclina-
tion to consult the physician attached to the
steamer, am clearly Of opinion that there was no
clandestine introduction of the disease alleged
in the libel; and therefore adjudge the same to be
dismissed, each party paying costs.
W. C. Jones for Libellant.
C. C. and F. b. Harris for Respondents.
February 2S 1873