The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-31

| the iiDGilGuI5.
The libellaDts were transEortin:
the sugar under contract with To,
owners for the carrying of all thei
freight, and under the contract nC
restrictions were placed upon tbs
hbellants IA 10 the character of tbs
vessel 10 be used. 4 shipping receipt
was signed by the captain Of the Ii
hOliho, which is 10 the usual form ir
use IN this country.
II IS cOntended by the interyenor.
that the cause of the strauding of the
schooner was the incompetency and
negligence Of the master, and that
the llbellant being the owner Of both
the wrecked and saving vessels, il
cannot profit by its own wrong.
The evidence tended TO show that
the Liholiho got uEder way between
9 and 10 o'clock in the evening with
the wind blowing moderate breeze
| from the east or off shore. There Is
some conflict of evidence es 10 Just
how the start was made, but the
! weight OF the evidence was 10 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
holsted and Delayed TO port, the
sheets CT both main and fOresail were
well 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 off, and |
In this case was making too much |
Roadway toward the shore. Upon
seeiDg 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 al hour second attempt
was made under foresail and ito.
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.
/ wide difference between wilifol
negligence and an error of judgment. {
The captain of the Liholiho was {
hown TO be a master mariner OF long
tanding and his general competency ]
vas not questioned. And although s
With fair wind and calm sea the G
would seem to be against a
i'm, yet upon all the circumstances t
fail to find him chargable with Z
egligence. If he were to make the t
tempt again he might consider it t
Use to adopt different method, bnt o
nat even would not he evidence Of &
egligence IN his former misfortune. |;
.eaving port In the night time is C
OF negligence per Sc and / do not "
nd in this case that it Was the prog | 81
nate cause OF the stranding. I v
link therefore that the disaster was O.
ne TO miscalculation on the part O
the captain of the Liholiho. In b
any cases where it has been neces- fl
ry to prove a loss by peril of the
a, the courts have held that whore u
% remote cause of the disaster was
o negligence of the master or crew, =,
It il the action of wind and wave g
as the proximate cause of the loss .,
was a peril of the sea. AS, where :,
gar was being transported from 6,
o shore to the ship In an offiug, by NC
cans Of launch and the crew went II,
sleep and the launch thereby =.
fitted upon the shore. Walker vs. 81
b. IL Aid. III. And, oi
here the master threw out too much OF
last and the ship was overset in q
uall. Dixon vs, Sadler, NJ & ~
els. 405. Also see the case OF the e.
ontana, II Fed. Rep. 377.
1t is also contended that the libel
1t being under a special contract to -
Insport this sugar, and that all the e 1e
'amers of the company were under GI
neral orders to go to the assistance ~
other vessels of the company in 81
stress, that this is not a salvage ~.
vice. There is nothing in the con- vi
.ct to support the theory that the GU
rites contemplated anything of We
IS kind; the contract does not ex- ln'
id to the situation before us, nor err
l find that the general orders to sf'
, captains Of steamers in regard to III
ldering assistance changes the 80
ult. pr
[ am therefore of the opinion that 10
, services rendered by the Iwalani oti
titles the ibellant to salvage; the VI
t that the vessels were both owned sal
the libellant being no bar to n
overy. -,
The Miranda, 3 Ad. 81 Ec. SCI. GU
,. III. S. Co. VS.. Ten Bales Gunny pos
gs, 3 Sawyer 1877. oes
The only remaining question Is the .'of
cunt which shall be awarded as 'ih'
npensation for the service. The 1 5
ervenors endeavored to show that u,
Iwalani, soon after her arrival, tue
smpted to pull the Liholiho off by l' "a
ans of the hawsers made fast first u
her main, and afterwards to her ne ne
aud that by so doing the ure
Ioliho's keel was damaged and 10
t she then began to leak. and yes
{ had it not been for the leak so II
sed, the Liholiho would have + Zoe e,
laiDed intact and that her own 100
W and boat could have safely as
1ed the cargo on the wharf. mas
he testimony of the captains of I'VE
b the Liholiho and Iwalani was tne
he effect that no effort was made p5a
haul the Liholiho off until the F-o