The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-05-30
9ataiian 05azttte,
WEDNESDAY, MAY 80. isss.
Supreme Court of the Hawaiian IslAnds--
In Admiralty.
H.R. MAcrAHIAxE VS.. THE JENNIE Wal
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| II. X. MACFABLANB vs.. lHh 'h'NAh val
KER."
Before the Chief Justice. Opinion of Judd, CO.
The libellant was the owner Of Hawaiian
schooner of ~ tons burthen named the Raaio
and claims {, 900 damages for her loss by col
lisiUu with the Schooner Jennie Wake,
which is is claimed vas accustomed by her
culpable negligence and carelessness.
1t is proved. in my opinion, that on the
| night Of the 10th Of May, at about l2:45 a. m
| the jennie IPdllisr, Hawaiian schooner Of
l3e tons burtben, was coming down from
Hawaii with cargo of sugar, deeply laden,
and running down the Oahu channel before o
| strong trade wind, with her sails ewing and
wiDg,p bound for Honolulu When off Koko
Head she collided with the Haala which was
standing off shore on the port tack, close
hauled, bound for Heeia, Koolau, on the
windward side of this island. Just before
the collision, the Jennie Walkers helm was
put TO starboard and this made her sheer off a
little, and her jibbOom went through the Kaa-
las jib. The shock of the collision was suff-
cient 70 rouse those who were in the Jennie
Walkers cabin and the vessels became fouled
and, the sea being rough, the Jennie Walkers
anchor tore down the Kaala's bow and she
wen. down bow-foremost and sank in very
deep water. The jennie Walkers sails were
lowered soon after the collision and before the
kaala sunk. Her officers and crew clambercd
over into the Jennie Walker and were all
saved. There was no moon that night but the
stars were visible and sky clear except when
occasional rain squalls from the land obscured
them. .t-
Thus far there are no contradictions. The
libellant introduced Capt Geo. Townsend the
master of the Kaala, the Mate Jacob Koia,
the lookout John Hawai- and Daniel Keliika-
pu a sailor, who all swear that the Kaala was
provided with lights as required by the Stat
ute Of 1850 (entitled An Act for Preventing
Collisions at seal to wit, a red light in the
main rigging ON the port side and a green
light Oh the starboard side, rugged the same
way, about 6 feet above the rail that both
these lights were lit at sunset and were bum
ing brightly at the time of falling in with the
Jennie Walker; that the lookout was stationed
in the boat midships and saw the Jennie Wal
ker coming down on them, some say Is min
utes before the collision, some say the vessels
were the width Of the Court House apart On
the other hand Capt Henry Nielsen of the
Jennie Walker, Tetaua the sailor who was
steering. and Frank Mice the lookout twho
were on deck at the time) as well as Mr..
Feuth LIST mate, John Nawlo steward, Andrew
Erickson, Carl 0hlsen, John Dover, Thor
wald Tolkilsen, passengers, and Bill Rotu-
nah and TaiO of her crew, say they saw no
lights on the Kaala The crew of the Kaala
however, say that the port light of the kaala
were swept off by the fuIeboom of the Jennie
Walker, the blow carrying away the main
rigging, and if this is true, those on tile Jen-
ME Walker who come on deck after the col
lision or who were aroused from sleep by the
shock OF the collision Chat is, all but the
Captain the steersman and the lookout) were
not in position to say whether the port light
may not have been burning at the moment Of
collision.
i know it often occurs that the feelings Of
seamen become strongly enlisted in favor of
their respective vessels which colors their
testimony, but in this case, the contradictions
are fiat and irrecOncilable. That same night,
however, the Kaala was passed by the
schooners Moi and Waioli. Two of the Moi's
crew testify that they passed near enough to
recognize the Kaala and she had no lights, and
Kaikaai, the I'd mate of the Waioli, says that
when they passed the Kaala there were no
lights ON her | think the preponderanCe of
testimony is in favor of the proposition that
the Kaala's lights were not burning at the
time of the collision, which is a breach of the
Act of 1850 referred TO-
But it is proven by the testimony and not
denied by the Respondent that the lookout of
the Jennie Walker was stationed on the house,
aft Of the mainmast, and but a few feet ahead
Of the man at the wheel. The captain says
that the lookout and the helsman called out
together " a sail on the starboard bow" The
captain says the main-sail was on the star
board side guyed ont; this is also supported
by the lookout and many others, though others
say the main boom was on the port side. /
think the captain and lookout are more likely
to be correct in this respect. Now if the
lookout was stationed aft of the mainmast,
and on the port side, as be says he was, his
view forward would be obstructed by the
main-sail which was at right angles with the
vessel. The captain says the vessel was
taking in water over each side and that it was
wet forward as the reason why the lookout
was placed as he was. But this is no excuse.
He was not in proper place.
Says Clifford, j., in the case of "The Otto
wa" 3 Wallace, 273, "Lookouts must be
persons Of suitable experience, properly sta
toned on the vessel, and actually and vigil
lantly employed in the performance Of that
duty. Proper lookouts are competent persons
other than the master and holmsman, properly
stationed for that purpose on the forward part
Of the vessel. Lookouts stationed in positions
where the view forward or on the side to
which they are assigned, is obstructed, either
by the lights, sails, rigging, or spars Of the
vessel, do not constitute a compliance with
the requirements Of the law, etc.
There are abundant authorities to this
effect. The Propeller Geaesee CHisf rs. Fuz-
hugh u Hou. 443. Tie Northern bdimd.-
3. Blatchford, c. c. r. los, are cases in point
1t was by article II (a) of the Act of lssO
encumbent upon the Jennie Walker, being n
vessel running free" to keep out Of the way
Of the Kaala, she being close-hauled: and it
is quite possible to believe that even if the
Kaala had no lights, the Jennie Walker might
have avoided the collision if she had had a
proper lookout who would have seen the
Kaala in time TO avoid her The neglect of
the kaala in not displaying proper lights did
not absolye the Jennie Walker from observ-
ing on her part the laws of navigation and all
reasonable and practicable precautions.
The Gray Eagle, Wallace Gu. S. Supreme
Court) sos.
Having thus found that both vessels were
in fault l hold, according TO the current
Of modern decisions, that the amount Of
damage sustained by the owner of the Kaala
loi utl lOshy anu INT udludHe 10 the Jeuule
Walker resulting from tie collision must be
divided between the parties. Costs in the
same way.
The matter is referred to S. B. Dole, Esq, a
Master in Chancery, 10 assess the damages
and report to the Court.
Since this Judgment was delivered l have
been shown recent case decided by the
" Judicial Committee Of the Prvy Council "
of Great Britain, May, 1882. THE Hochung
The LGpring," where this eminent Court
held "where two vessels are damaged by
collision, for which both are TO bla me, one for
wrongful navigation and the other for a
breach of the regulations for preventing coils.
ions at sea, it not being shown that such
breach could not possibly have contributed to
The collision, the damages are to he divided
between the parties according to the Admiral
ty rule,-which is, that each party shall
obtain from the other half Of the damage
which be has suffered"
II would bo-dificult to find case resembl-
ing more closely in every respect, the one at
bar. A. FRANCIS JUDD,
Chief Justice Supreme Court.
F. NJ. Hatch for libellant. Z. Preston and
W. X. Castle for respondent
Honolulu, May 22d, 1883.
Notes of Florida in 1883.
by An HAwAIIAN. ..r.r