The Hawaiian gazette., 1875-11-10
have been passed, and the English authorities are

Courts have not considered them as affecting the
rights Of parties in any other respect than the
payment Of the pilotage.
Chancellor Kent in bis 3rd vol. Com. 238,
Gays, that the Pilot while on board has the ex-
elusive control Of the ship. He is considered as
Master pro hae vice, and if injury is sustained in
the navigation of the vessel, while under the
charge of the Pilot he is answerable as strictly
as if he was a common carrier for his default,
negligence, or unskilfuness, and the owner would
also be answerable to the party injured for the
act of the Pilot, as being the act Of his agent.
1t is contended on the part of the respondents
that the Ravenstondale was solely to blame, as she
was IN an improper place and obstructed the navi-
CATION. The Civil Code requiring that all vessels
that may enter any port shall be anchored in the
place designated by the Harbor Master. II is in
evidence that the HGrbor Master moved the
vessel and he says that - / regard the Ravenston-
dale 10 be in a perfectly safe position" He adds
that when the Raveustondale first arrived we
put her along side the wharf to get iron out, that
the ship might be repaired and then we dropped
her off," lie says, that she occupied little
over one third Of the channel that she is 295 feet
long. and % feet from the wharf and that there
remains more than five hundred feet of clear
water
1t is well established maritime rule that when
u Ntsscl 10 CuNblluS 10 OOuuh W SASl-
else great care and diligence.
Culbertson VS.. Shaw Is Howard 584. 5ST,
Ward VS.. Schr. Darisman, Mclean c. @. 239.
IL ship at anchor and one in motion come in
collision the presumption is that it is the fault Of
the ship in motion, unless the anchored vessel
was where she should not have been.
Strout VS.. Foster l Haw. SO; The Sciota,
Davies 359.
But whether she be in proper place or not,
and be properly anchored or not, the other vessel
must avoid her If it be practicable, and consistent
with her own safety.
Per Dr. Washington in the case of the Batavia,
10 Jur. 49, Knowlton VS.. Sanford, 81 Maine
l4S.
1t cannot be denied that the steamer could
have avoided the ship, as the United Safes lrigate
Pensacola had done in passing through the same
portion OF the harbor prior to the collision and by
the steamer MikGdo subsequently. 1t will be
borne in mind that the steamer entered the har-
Dor in the day time, in good weather and the ship
which was in full view, occupied but little more
than one third oil its width. But the pilot prob
ably took the course he did, which was direct to
the steamers wharf. relying upon the steamer TO
answer his orders promptly. He attributes the
accident to the bad steering of the steamer, and
he adds also, that had she backed in time, and had
the anchor gone down, aud the jib been boisted
as ordered, the accident would not have happened
But the Master of the steamer attributes the
accident to the jib boom OF the ship being rugged
out. and to save the jib boom by reversal of the
engine the accident occurred.
There is most contradictory evidence in rela.
ton to the management and action of the steamer
Immediately before the collision but l do not
regard it necessary for the purposes of this in
vestigation to analyse it, and TO give an opinion
as to its comparative weight, us it is immaterial
in view of the circumstances Of this case whether
the fault was with the pilot. or the steamer, for
in either case it would not be defence to this
suit. Indeed 1t is the duty of the Court to con-
fine its decision TO the rights of these parties,
and not by indirection, give an opinion affecting
the rights of others, which have not been repre-
sented
There is no pretence that the injury occurred
by inevitable accident, and it is very evident that
it was not necessary for the steamer to be in
such dangerous proximity to the ship.
Mr.. Justice Clifford said in the case of Wake
field ct al. vs.. steamer Governor, | Vol. ClfOrds
r. 90, that occurring as the collision did, in the
day time, and in good weather, and at a place
where there was no want of sea room and no OBJ
to the navigation, it is clearly case,
where the rule applies, that sailing vessel shall
keep her course, and leave it TO the steamer to
adopt the necessary precautions to avoid a COLI
sion. The rule applies with more force to yes
sci at anchor.
The respondent contends further that the libel
ANTS can not recover, Inasmuch as the vessel had
violated the law in not rigging in their jib and
Tying jib booms.
BY Sec COS of the Civil Code it is enacted
that All vessels entering port shall, if so re-
luested by the Harbor Master or any pilot, rig
n their jib, flying jib, and spanker booms, and
'prltsail yards, and top their lower and topssil |
yards within "a hours after anchoring in such |
port and in all cases before attempting to come |
alongside of, or make fast to either Of the docks
Or wharyes and keep them so rugged in and top |
bed until within "a hours before leaving the har-
,or and until after removing from any wharf or |
lock, under a penalty of fine not exceeding |
$780,"
The Harbor Master testified that abe did not
lirect the jib boom to be rugged in, and did not
consider it necessary, and adds, regard the Raw
'nstondale as being in perfectly safe position.
1t is not incumbent on vessels, unless request
ID by the Harbor Master to rig in their jib booms
and it is not pretended that any such request
vas made.
But it is commended, that while request is ne
.essary for vessels on entering the harbof, it Is
lot made imperative by the last clause of the
section, in which it says, that in oil cases before
attempting to come alongside of or make fast to
ther of the docks or wharVes, aud keep them so
igged IN and topped until within "a hours before
eaving the harbor, and until removing from any
wharf or dock, under penalty of fine not ex-
feeding $780,"
This presupposes that the vessels have rugged
n their jibs jib booms, &c. on entering the har-
,Or, and it makes it imperative to keep them so
igged in and topped until "a hours before eav-
ng the harbor. The penalty applies for viola
ion OF law on entering the barhor as well as
when the vessels come alongside of the dock. 1t
) entire section and must be in connection
nd from the evidence there has been no viola.
ion of either provision.
The Counsel for the respondents contend
that Courts of Admiralty in suits between
oreigners will decide according to the laws
# the country to which the chips belong"
This position is repugnant to the general prin-
iples of international law.
In the case of Smith ct al. vs. Candey. How
B. %, which arose from collision in the port of
liverpool, between two American vessels, the
Jonrt ruled, that the question whether there is
egal liability for the consequences of collision
n an English port, must be determined by the
avs of England, and that when collision occurs
n port of foreign country, the rights and
of the parties are to be determiu-
d according to the laws Of that country.
Conkling admit. 3O5
1 suppose that courts always regret that