The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-11-16

ElS U4ON Ol TIE SNSdluSI MtiS rScoiYSJ
forward of the fore rigging instead of
the middle Of the vessel. which would
have been the case If the schooner had
continued on her course.
The Court ssy " The fact that the
vessels did collide, explodes the theory
thst there was no risk of collision.
There Is no evidence
that the schooner changed her course
until the peril was imminent, but the
natural inquiry arises, which vessel
was hlamsble for producing this
peril +? The schooner was not, be
csuse she was obliged to keep her
course. She could not choose. be-
cause the law had chosen for her. 1t
Is otherwise with the steamer. She
could go to the right or left, and
change SIS often as there was, in the
apprehension Of her officers, a neces-
sity for change The steamer is,
therefore, to blame for suffering this
peril to occur for if it be conceded
that the steamer was wrong in star
boarding her helm. this cannot effect
her right TO recover. as she was IN
other respects without fault, because
the steamer. having the right of way.
put her in this predieament, and must
answer for the consequences"
In the Sea Gull" 3 Wallace, Isl.
the Court say:
These rules Of navigation are of
great importance. but they do not
apply 10 the vessel required TO keep
her course. after the wrongful sp-
proseh of the steamer Is so near that
the collision Is inevitable. nor viii an
error committed by the sail vessel,
under such circumstances of peril. if
she is otherwise without fault, impair
the right of the sail vessel to recover
for the injuries sustained by the col
Esion. for the plain reason that those
who produced the peril and put the
sail vessel IN that situation. are charg
able for the error and must answer
for the consequences. Subject to that
exception, the sail vessel must keep
her course but the case before the
Court, If any change was made in the
course OF the schooner, falls within
the exception"
Many more authorities might be
quoted From among those cited by
the counsel for the DoHsett," I find
none sustaining q different rule of
law than that which l adopt upon a
similar state Of facts.
1 find it was the duty of the " Dow
sett to have seen the Moiwahine, I"
and to have kept out of her way, and
that the putting Of the bow of the
schooner off was the only departure
she made from her course. and this
was done when the collision was in
evitable. and. in my view. was not
even an error of Judgment. but
brought the place Of the blow further
aft, and ightened its effects so far as
the schooner was concerned
Counsel for the Moivahine = COM
mentes on the fact that nothing was
done by the Captain TO save the
Dowsett." The engineer started
her pumps. but found it was useless.
as the water gained very rapidly and
he could not free her. Captain Du-
doit says he did not examine the in
iuries until he was IN the boat. with
the intention of abandoning her The
lookout, healoha, says her stem was
twisted off to one side l think that
the blow she gave the schooner was
not what is called q glancing blow"
for it must have started the stem of
It's whole length. leaving the ends of
her plsnkng open. and the water
flowed into her IN torrents. l hardly
think that shifting her sugar aft or
throwing it overheard. or putting q
tarpaulin over her bow, would have
saved her, but it would have been
better If Captain Dudoit had made
efforts to do it, and l think he could
safely have staid by her in his boats
until she sank.
Having found that the Moi
wahine" is blameless for the loss of
the Dowsett," and that the Dow
sett caused the collision and the
damage to the MoiHahine," the
amount of the damage must be con-
| allow the ship carpenters bill for
REPAIRS ----..--.------- - S-GV -
Fees of three Surveyors al $I6------. 4S 90
The schooner was detained six days,
undergoing repairs her expense Is
testified 10 BY Captain Staples TO be
SIS per day. l allow for this. los %
sfT. SOTenson, the shipxnght, SAYS
the damage to the schooner, by
being strained Is at least (which
1 ailQSi ACKNOWLEDGEMENTS 2JJ W
Total. $676 50
1t does not become necessary, in
view of my previous conclusions, to
consider the question new in this
country, whether AIr. Allen, as owner
1f the Moiwahine, would be liable
10 the owners of the Dowsettn y for
more than the value of the Moi
Eahine."
The libel of the Pacific Navigation
Company VS.. S. c. Allen is dismissed
decree may be taken out in the
sross suit, eondemning the Pacific
Navigation Company in the sum of
1915 30. interest and costs.
A F. JUDD,