The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-07-04
Supreme Court of the Hawaiian
Islands.
In re the MARY BELLE ROBERTS,"
Li5sl for Smuggling Opium.
Judd and McCully, J. ].
Op1NIov pY McCrLLY. ].
IN B ANCo

OPINION BY McCULLy, J.
This case comes before the Court by appeal
from the decision of Mr. Justice Judd, and
the full opinion therein rendered, which has
been published, makes it unnecessary now to
set forth the facts of the case.
Counsel for the defence have not before this
Court offered the proposition that the Act of
1874, which prohibits the Importation of
opium except by the Board of Health, was in
effect q repeal of the duty thereon, and we
have only TO remark on that point that we
mold, upon the reasons set forth by the Court
below, that the Act in question restricts the
importation, but does not remove the duty,
and that opium remains an article which may
be smuggled.
The case is also free from embarrassment
on the fact that the captain had surreptiuously
landed 10 tins of opium. and had Is other tins
ingeuiously concealed in the bulkhead behind
his bureau
The points presented in argument were
these: H. Can the ship, which is the pro-
perty Of innocent third parties, be forfeited
by the unlawful proceeding of the master?
Ii would be sufficient 10 make answer that
the Statute of this Kingdom expresses in Ian
guage too plain TO admit of other construction
that such penalty may be enforced. This
construction is not affected by the fact that
the laws provide also other penalties, and
that in the discretion o: the Attorney General,
other proceedings are more commonly taken,
nor by the consideration that such law may
be impolitic, and certainly not by the fact, if
il be such as stated by Counsel for defence,
that the recent Legislation of the United States
has omitted and therefore repealed the penal
ty of forfeiture when the smuggling is COM
mitted from vessel
We do not, however, find the statement of
Counsel 10 be correct.
Section 1872 of the Revised Statutes Of the
United States (ls75) forbds the unlanding or
delivery of merchandise brought in any vessel
from any foreign port, except in open day,
that is 10 say, between the rising and the set
ting of the sun; and at any time without a
permit from the Collector, etc.
Section 2s74 reads, All merchandise, so
unladen or delivered contrary to the provi-
sious of Section 1872 shall become forfeited
and may be seized by any of the officers of the
Customs; and where the value thereof, accord
ing to the highest market price at the port or
district where landed, shall amount to four
hundred dollars, tie 1eSSsl, tackle, apparel and
StTHitaas shall Be subject 10 like forfeiture aud
SEIZURE"
This law is Section so of the Act of End of
March, 1899, and under il there have been
many cases of forfeiture of vessels, TO wit
the brig " Hannah, the schooner Industry
the schooner " Harmony all reported in
Collisions Report, also the 90 John c. Brooks"
Ware, 273, and many others. In the last
case the schooner John c. Brooks was
about 200 tons burden, from Cardenas, in the
Island OF Cuba, arrived at Portland on the
3lst March, 1851, and landed on that day,
without permit from the Collector, 81 900
cigars at Simonton's Cove, III Cape Elizabeth.
Judge Ware saws, " the smuggling is proved,
and is not denied on the part of the claimant,
etc" Decree of condemnation was pro-
nounced.
In the Governor Cushman" (Is65), Bis
sell, 400, which was a libel for forfeiture
under the Act of End of March, 1893. Judge
I Miller says, = 1t is conceded that the owners
of ship or vessel are liable for the acts of the
/ captain as their agent, in the discharge of his
/ official duties, but the cook and waiter are
/ mere employees as hands on board under the
control of the captain, and may be discharged
/ at his will, subject to provisions of law and
/ the terms of their employment" In this case
/ the learned Justice refused 10 decree forfeit
ure of the vessel because the cook smuggled
on board a vessel small quantity of liquor.
Z 1t is the simple duty of this Court to con-
strue the Hawaiian Statutes as they stand
+ Our Statutes making a ship which carries
port, liable for all his debts, unless, as pro-
vided by recent amendment, it appears that
the master has first caused a search to be
made by the police, is one which is not COM
mon to other countries, and may entail great
hardship on innocent owners, yet it could not
be claimed that our Courts should construe il
away or refuse to enforce it.
The language of Judge Ware in the John
C. Brooks" above referred TO, is applicable
"To extract this case from the express Ian
guage of the Statute, it must be shown that
while the legislature said one thing they
meant another. This may be shown, but it is
incumbent on him who alleges an exception TO
prove IT,"
The cases cited by the Counsel in support
Of the doctrine that the acts of the agent be-
yond the scope of his authority and without
the limits of the legitimate business with
which he has been entrusted, do not bind the
principal, are not relative to the case of the
forfeiture Of ship for smuggling by the mas
ter. Says Sir ". Scott, in "Tbe Vrow Ju-
dlth, have no hesitation in saying that
the act Of the master of the vessels binds the
owners IN respect TO the conduct of the ship
as much as if it were committed BY the owner
himself" 1t is true the master nav imperil
his ship upon the rocks of the law as well as
upon the rocks Of the coast, and both perils
may be insured against.
Arnould on insurance, s2s
We cite now at some length the language of
Judge Story in the United States VS.. brig
; = Mslek Adhel-" 2 Howard, 23s, both to show
that the innocence of the owners does not
protect the ship, aud that Statutes of forfeit
ure, and proceedings under them are not pecu-
liar to this country.
The next question IS, whether the limo
cence Of the owners can withdraw the ship
from the penalty of confseation under the act
Of Congress? Here, again, it may be remark
ed, that the act makes no exception whatso-
ever, whether the aggression be with or with
out the cooperation of the owners Tie
vessel which commits the aggression is treat
ed as the offender, as the guilty instrument Oh
: thing to which the forfeiture attaches, with
out any reference whatsoever to the character
or conduct of the owner. The vessel or boai
! (says the act of Congress) from which such