The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-05-24
A FEDERAL
DECISION
In Favor of Libel.
liant With $3.50
Damages.

Judgment In the sum Of $3.50 Pau
Neumann for liheilant and Robertson
g. Wilder for defendant.
The decision reads as follows;
This is n libel for salvage brought by
Robert X. Hind, lbcllant, owner OF the
steamer Upolu whereof Frank DaltlD IS
master. It is brought for himself a.
well as for the master and crew of the
steamer Upolu, against the brigantine
Consuelo. her tackle apparel. furniture,
boats and appurtenances whereof one
A. c.. Page is master, and against all
persons Intervening for their interests
therein. Libellant asks salvage in the
sum of 5000. Il. A. Fraser answers the
said libel, intervening on behalf of him
self. C. A. Nelson and ]. Renton, as
co-owners of the said Consuelo.
The matter was referred to w j. Rob
nson as special referee to take testi-
mony and report the same to this court.
Salvage is defined to be services rem
dered in the rescue or relief of property
at sea in imminent peril of loss or dete-
rioration.
salvor is one who without any par
ticular relation to vessel in distress
proffers useful service and gives it as n
voluntary adventurer. He may act with
without request.
So assistance needed and rendered is
in the nature of salvage services.
The facts appear to be these: That the
Consuelo, a sailing vessel, Captain A. G..
Page commanding, was on a trip from
San Francisco to Mahukona, on the ISL
and of Hawaii. She reached that road
stead of Mahukona about October 25th,
1900, but owing to the fact that other
vessels were lying in could not get a
mooring until the evening of the 1ith of
November, when at about 10 o'clock Of
that night she was moored about a
quarter of a mile from the shore.
That during the night the wind blew
heavily from the southwest toward the
land, the barometer fell, and a storm,
known as a "Kona," common to these
Islands, prevailed during the entire
night. That about 2 o'clock in the morn
ing Mr. Fraser. one of the owners of the
Consuelo. and consignee of her cargo
being on the shore, arose and aroused
some of his men and ordered them to
20 out and go aboard of the Consuelo
and find out If she needed anything. That
they did so, and reported to the captain
of the Consuelo. who, with his mate,
steward and crew, including every man
aboard of the Consuelo, left the ship and
went ashore in the boat with the ma
tives sent out by Mr.. Fraser, leaving the
Consuelo entirely alone.
There is some conflict as to how long
they stayed ashore, but 1t Is in evidence
that the captain with his officers and men
remained ashore from little after
o'clock until after 6, when the captain
returned alone with the native crew.
which he claimed to have obtained
on shore. in the same boat. 1t Is not
contradicted that some life preservers
were taken In the open boat when 1t left
the Consuelo first. thus tending to show
that the officers and men Of the Consul
clio thought there might be need of them.
and that the mate and one of the crew
took bundles with them to the shore,
probably their clothes. 1t does not APP
pear that the captain ordered his men
to remain on the vessel or that he de-
sired to remain on her himself. No ex
PLANTATION is offered by either the cap
tain or anyone else for the conduct OF
the crew in leaving; there is no testimo-
ny as to a mutiny or any dissatisfaction
among the men aboard of her. The cap
tain saying in explanation only, II
couldn't prevent 1t: they would go. They
got in the shore boat and 1 went in or
der to get another crew for the vessel"
But when ready to sail his old crew went
with him on board his ship.
1t was certainly most extraordinary
conduct on the part of the officers and
men OF the vessel to desert the ship
without cause, and especially as not one
of these officers or men, with the excep-
ton of the captain and the cook were
called as witnesses to explain this pro-
ceeding. 1t would appear that the ac-
ton of the crew in deserving the vessel
in this manner In company with the
captain must have been due to some
cause which they now do not admit, and
from an examination Of all the testimo-
ny in relation to the storm that was pre-
vailing. and the position of the Consuelo
the Court must assume that 1t was fear
of the danger in which the vessel was
then in that induced this wholesale de-
sertion. This seems to be more appar-
ent from the testimony of the witnesses
for the libellee to the effect that when
the Upolu hove in sight. the recreant
crew consented to go back at once upon
the vessel.
1t further appears that Mr. Frazer.
one of the owners and the consignee OF
the Consuelo, and intervenor herein, tel
ephoned to Mr.. Hind. the owner of the
Upolu, then lying at Alaalae some twelve
or fifteen miles from Mahukona, to send
the Upolu. There seems to be some dis
agreement between Mr.. Frazer and Mr..
Hind, as to what the object was in hav-
ing the Upolu sent around to Mahukona.
Mr.. Frazer testified he telephoned to
Mr.. Hind and asked him where the Upo-
lu was. II told him." says Mar. Frazer.
that the Consuelo was lying in port
with a southerly wind and that there
was a possibility that the captain might
want to tow out. and / asked him TO
send the Upolu down and lie there; and
in case the captain wanted a tow he
could give him the tow.
While Mr.. Hind testified "He (Mr.
Frazer) telephoned to me to send the
Upolu around TO Mahukona to tow the
Consuelo out OF port, which she after
uar said 1 would go
down and find the boat and he said. i
wish you would. as the Consuelo has
very valuable cargo and We hate 10 lose
IT,"
There does not seem 10 the Court 20
have been but one object In getting the
Upolu at Mahukona. and that was 10 as
sist the Consuelo out 10 sea because OF
the very serious gale that was then blow
ing In the port OF AAhulcDna and the
threatening danger 20 the consuelo N
she remained there. Al any rate the
Upolu left AiAalaa about O'Clock a ~.