The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-01-15
OPINION OF THE COURT BY JUDD.
G. J.

The following stipulation was filed
In each of the above entitled causes it
is hereby stipulated and agreed, by and
between the parties thereto, acting by
and through their respective counsel:
That the libel filed by said insurance
companies against said steamer may and
shall be considered as the answer of said
insurance companies respectively to the
ubels filed against them to enforce pay
ment Of their respective policies of insur-
ance on said steamer Waimanalo in the
two first above entitled lsuits; and said
libel of said insurance companies may
further be considered as a cross-bil filed
in each OF said two first above entitled
suits.
And that said. three libels and suits
may be heard together as one consoli-
dated suit; and any and all evidence,
affidavits, and dispositions taken, or which
shall be taken. and all proceedings had
or which shall be had, in either of said
suits shall be available for use and con-
sidered as having been taken and had in
each of said suits.
And that the libels filed against said
insurance companies respectively, in said
two first entitled suits, may be considered
as the answer of u. S. Spalding and of
Charles V. Dudoit to the said libel of said
entitled suit.
The fact of the Incorporation Of the
said companies and their power to con-
tract is admitted and need not be proved
herein.
Said companies are left to their proof
of compliance with the law Sn regard to
foreign corporations, and nothing IN this
stipulation contained shall prevent said
z. S. Spalding or c. V. Dudoit from filing
any other or further plea or answer.
We adopt the following statement Of
the pIeadings and evidence made by the
Circuit Judge from whom this appeal
comes:
The libellant in the first two libels
claims as mortgage Of one C. V. Dudoit,
the master and owner of the Hawaiian
steamer Waimanalo, the sum of S15O0.O
from the Alliance Company and from the
Sun Insurance Company $15OO.O0 respec-
lively the amounts of insurance on the
Waimanalo insured by the companies in
the name OF c. V. Dudoit and duly as
signed to the libellant by him, the libel
liant claiming that the steamer Wanna
nalo on August Is, 1893. was wrecked at
Keawanui. Oahu. by the perils of the
seas and became a total loss. Each pol
icy contains the clause Toss If any (or
in case OF loss) payable to q. S. Spalding."
In their libel the insurance companies
claim (Sec. s. that Dudoit, the owner anc
master, at the time of the strand!Eg,
proceeded with his vessel to a bar har-
Dor and open roadstead, to wit, Keawa-
nui, and at divers times to other bar
harbors and open roadsteads in violation
of the conditions OF said policy of the
Alliance Company. That (Sec. . on
August 16. 1893, in the day time. in good
weather, while Dudoit was on board and
in command, said steamer was stranded
by running upon the reef or lShore of
Oahu at or near Keawanui, Waialua.
and very soon deserted and left her to her
fate That (Sec. s. on information and
belief, said sranding of the vessel was
not caused by a peril of the seas or by
any of the perils insured against; but
that said stranding was the deliberate
and willful act of said Dudoit, acting as
master, and done with the purpose Of
wrecking her; and that the act of said
master and crew in deserving and leaving
the steamer to her fate was not
done in good faith, but was done in spite
OF the fact that, at the time of such deser-
ton said steamer was not in such peril
as to be beyond the hope of rescue; and
that Information of such stranding being
the willful act of said master came TO
the notice of the insurance companies
a fter the repairs to the steamer had been
contracted. That (Sec. 81 Dudoft Kept
of the crew in possession OF the
vessel till August 25th and thereafter no
tilted the agent of the companies In HOMO
lulu of the strandng Of the vessel claim
ing a constructive total loss and proposing
an abandonment Of the VesseI ana oe-