The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-10-31

company, owners OF portion VI bue
sugar, interpleaded for the purpose
of disputing the claim of the libel
lants. An order of sale was issued,
the sugar was sold, and the sum OF
S3635.67 was realized and paid into
the registry of the Court.
The steamer Iwalani and the
schooner Liholiho both belonged to
the libellants.
The libellants were transporting
the sugar under contract with the
owners for the carrying of all their
freight, and under the contract no
restrictions were placed upon the
libellants as to the character of the
vessel to be used. A shipping receipt
was signed by the captain of the Lii
holiho, which is in the usual form in
use in this country.
1t is conteuded by the intervenors
that the cause of the stranding of the
schooner was the incompetency and
negligence of the master, and that
the libellant being the owner of both
the wrecked and saving vessels, it
cannot profit by its own wrong.
The evidence tended to show that
the Liholiho got under way between
9 and 10 o'clock in the evening with
the wind blowing a moderate breeze
from the east or off shore. There Is
some conflict of evidence as to just
how the start was made, but the
weight of the evidence was to the
effect that the schooner was lying at
anchor head to the wind, that the
mainsail and foresail were set and as
the anchor broke ground the jib was
hoisted and Delayed to port, the
sheets OF both main and foresail were
we'll eased off and neither of the sails
drawing. The course out from where
the schooner started was S. w. and in
order to avoid the lee shore the cap
tain deemed it necessary to go out on
the port tack. The Liholiho was
shown to be slow in paying of, and
in this case was making too much
Roadway toward the shore. Upon
seeing which the mate who was for
ward. without the order of the cap
tain, dropped the anchor, and the
mainsail and jib were also lowered.
After remaining in that position for
about half an hour a second attempt
was made under foresail and jib.
The mainsail having been hoisted
full up at the throat but with peak
slack. This second start was made
when nearer the reef and for that
reason under less favorable circum-
stances than the first, but the schooner
had nearly gained her course when
she struck on the reef head on and
almost Immediately swerving broad
side to.
There can be no doubt but there Is
wide difference between willful
negligence and an error of judgment.
The captain of the Liholiho was
shown to be master mariner of long
standing and his general competency
was not questioned. And although
with fair wind and calm sea the
presumption would seem to be against
him, yet upon all the circumstances
l fail to find him chargable with
negligence. If he were to make the
attempt again he might consider it
wise to adopt a different method, but
that even would not be evidence OF
negligence in his former misfortune
Leaving port in the night time is
not negligence per Sc and do not
find in this case that it was the prox-
innate cause of the stranding.
think therefore that the disaster was
due to miscslculstion on the part
of the captain of the Liholiho. In
many cases where it has been neces'
sary to prove loss by a peril OF the
sea, the courts have held that where
the remote cause of the disaster wa:
the negligence of the master or crew,
vet if the action of wind and waV'
was the proximate cause OF the losI
it was peril of the sea. As, where
sugar was being transported from
the shore to the ship in an ofing, BY
means of launch and the crew wen
to sleep and the launch thereb!
drifted upon the shore. Walker vs.
Maitland, 5 B. & Aid. III. And
where the master threw out too mucl
ballast and the ship was overset in
squall. Dixon VS., Sadler, B NJ. 4
Wells. 4O5. Also see the case of tn
Montana, II Fed. Rep. BIT.
1t is also commended that the libel
liant being under special contract t.
transport this sugar, and that all tn
steamers of the company were unde
general orders to go to the assistance
of other vessels of the company IL
distress, that this is not salvag'
service. There is nothing in the con
tract to support the theory that tn
parties contemplated anything o
this kind; the contract does not 81
tend to the situation before US, no
do l find that the general orders +
the captains of steamers in regard T.
rendering assistance changes tn
result.
I am therefore of the opinion tina
the services rendered by the Iwalan
entities the libellant to salvage; tn
fact that the vessels we're both oWne'
by the libellant being no bar to
recovery.