The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-12-13
THE
Commercial AOOertlsfr.
SATURDAY, DECEMBER 13.
Supreme Court-In Admiralty.
Is TIE MATER OF TIE BARK "KALAkAUA.''
OPINION of Court.

The libel in this case, which is filed by the
Collector General of Customs, asks that the
bark RaLakaua, her tackle, apparel and furniture
together with thirty-six tins Of opium, contain
ing about three and one half pounds of opium,
each be condemned as forfeited to the use OF the
Hawaiian Government, because that, on or about
the 2nd day Of this present month of November,
the said thirty-six tins OF opium were smuggled
into this country on board the said bark.
At the hearing, objection was raised that
opium could not be Struggled into the country,
because that ITS importation was prohibited oy
law. except by the Board Of Health. But this
objection being overruled as having been decided
in previous cases, and especially in the case OF
The King vs. H., Bradley, the case proceeded. ..
). Walker, Of the firm of W. q. Irwin q 20.
appeared as claimant for the bark, alleging that
he was owner on her register, but that the real
owner was j. G. Merrill of the city OF San Fran
cisco, State of California; and thereupon MIR.
Walker puts in an answer to the libel, admitting
that the thirty-six tins of opium were brought to
this port by the said bark on her last trip; but
averring that the same was shipped on board the
bark by one or more Cinnamon at San Francisco,
who had a~rtfully concealed the same in pieces of
frewood, and shipped it as frewood only, with
out the knowledge of the owners, officers or
agents Of said bark, that such trewood contained
opium.
George W. jerks, master Of the bark, like
wise filed an answer, by which he admits that
opium was brought into the Kingdom, but says
that it was concealed in frewood, which was
brought as freight; and that the frewood to the
amount OF about twenty cords, was shipped on
the bark at San Francisco, by one or more China
men, one of whom came as passenger to Homo
lulu on the same trip, but the name of the
ChInaman he has forgotten; and that the China
man paid freight on the frewood after its arrival
in Honolulu; and further AYERS that until the
discovery of the opium by the officers of the
Custom House at Honolulu, he (the Captainl
had no suspicion that opium was concealed IN
the freWood.
The mode of concealing the opium in the fire.
wood, as was shown by sample in Court, was by
splitting the stick, and morticing a place in the
stick large enough to contain the tin, and then
placing the tin in the mortice and fastening the
pieces together by nails and glue.
Mr.. w. A. Markham, Port Surveyor and Gus
tom House Guard, testified that the bark arrived
on Sunday, the End day of this present month;
that be went on board, asked the Captain, if he
had any Chinese passengers; he said, yes
asked him if the Chinese had any freight, he
said " Mo-" which it is argued, does not cores
pond with his averment in his answer that a
Chinese passenger aboard the ship brought it as
freight. But the freight list is produced, by
which it appears that one Tongkee shipped 20
cords of frewood, at $3.50 per cord, and Mr..
Eldrich, a clerk at w. G. Irwin q Co.. t~estifies
that a Chinaman, whom he had never seen before,
called at their Office, paid S125 for freight and
wharfage; said his name was Tongkee, and de-
manu6O al OIueF IOT tue UIeWOOu, WHICH ne gave
him; be asked him for a bill of lading; he an
swered he had none and showed no receipt; that
the frewood was marked on the freight list, " no
mark-no bill of landing;' and that he took
the Chinaman's word that he owned the wood
and gave him the order.
And it is a significant fact, as testified to by
the Collector General, that in the list of passen-
gers handed him by the Captain, there is but one
Chinese passenger as the Captain in his testimony
likewise says, and his name was Along and not
Tongkee; and further that a person came to enter
the wood at the Custom House, who, being ques-
toned, said that he didn't own it, and that it
was not consigned to him, but he knew who did,
and thereupon was told to 60 and bring the con-
signee or owner, and no person ever after cam
to enter the wood at the Custom House.
The 6rewood in question, was slowed partly on
deck, partly in the main hatch, and the thirty
six sticks which contained the opium. which will
be the subject of comment by-and bye, were
used as dunnage for the cargo. The 20
cords of frewood was not included in the
manifest.
The Captain, who was on the stand, was asked
{" why the irewood was not put on the mani
fest ?" answered, THAT be had no record of it,
because there was no bill of lading of it, and
being shown that 1t was on the freight list, an
swered " that he didn't know whether the freight
list was opened on the voyage down or mott"
but upon reflection he added, " | looked at it on
the voyage down to see the amount of my
ITelRuL, duu DelDK IculuuCQ IudI Tile uTcNOOu
was on deck and within sight Of all persons, re-
piled, that that was SO; that he couldn't tell
why he did not observe it, but simply that he
had forgotten it. He further testified that the
Chinaman, to whom he understood the wood be-
longed, was not entered as a passenger at the
Office at all, and for that reason, bis name was
not on the passenger list from the Office Of the
owners of the vessel, but be found him out COM
ing down the bay Of San Francisco, about twenty
minutes after he left the wharf; that he told
him, that if he did not pay, he would have to go
back on the tug-boat, and thereupon the China
man paid $50, and came along; and that he the
Captain had no knowledge that this Chinaman
was the man that owned the wood until after
his arrival at Honolulu, when he came from
Messrs. Irwin Il Co.'s Office, and brought his re-
ceipted bill.
4. L. Richie testified that he is master of the
bark d. c.. Murray, but was mate of the KdiQ-
kGua, and in that capacity, superintended her
loading at San Francisco for last trip down
here. That the wood in question was brought
by two Cinnamon for 20 cords, more or less. N.
BE measures but 10 cords here n Homo
lulu. That he didn't measure it, but took the
fellows word for it, that 1t wasn't all hauled
down in one day, that he judged by his eye it
was about 20 cords; that on the first day, they
hauled seven loads; the second day, three loads;
the third day, two loads, and so on. That he
took the FIRST lot and used it us dunnage; that
be didn't know the Chinaman; that he didn't
sign any receipt; that he told him be would give
him his receipt when he got all his wood down;
that he never came for it, and therefore, he
didn't give it to him; that he didn't put it in
the cargo book, because he didn't sign any
receipt.
How this witness could judge of the quantity
of wood by the appearance, when as he says, he
took it on board as he wanted to use it to stow
cargo with, and commenced to load it before it
was all down, | am unable to say. He says that
be used it as dunnage at the direction of the
Captain and Mr.. Merrill the owner, and being
questioned, admits that at the last trip Of the
same vessel, 100 tins of opium were found under
the wood, which had been used as dunnage, the
same master, the same mate, and the same second
mate being aboard the ship. Now, taking it into
consideration that every stick of the wood which
contained the opium was passed down to be
used as dunnage by the mate himself, and there
was not one stick of it left on deck; add to that
the fact that on the very last trip with same
master and officers, 100 tins of opium was seized
in the fore peak of the chip under the wood,
where no passenger could have access; and
further considering that this is Mr.. RItchie's
own testimony; and that the wood was not on
the ships inward manifest nor on the cargo