The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-30
TO COURT
OF APPEALS
TheAdmiraItyLaw
to Be Tested
Further.
ROBT. LEVERS CO.
TAKES APPEAL
Claimed That There is no Hawa.
ian Statute Governing the
Case in Question.

The second appeal to be taken from
Judge Estee viii be presented to the
| United States Circuit Court of Appeals
for the Ninth District. next week The
appeal is taken in the case of the School,
ner Robert Levers Co. VS.. Kaaaka Ke-
kauoha wherein the appellee was award
ed damages in the sum of s157712 for
death of her husband, Enoka Kekauoha.
The latter was drayman emplove1 bv
Hustace Co, and who was assisting.
IN the removal from the Robert Lew
ers' of a bed-plate, weighing twelve and
one-half tons. While the bed-plate was
| suspended in mid-air one of th,. chains
broke, causing the heavy iron to swing
against the schooner's side. The da
ceased was caught as he endeavored u
get over onto the deck, and was severely
crushed, dying from his INJURIES.
| The appellants in this case are repre-
scented by Smith & Lewis, and Mr. Lewis
VIII go to San Francisco on Wednf s5lay's
steamer TO present a brief and argument
The appellee is represented by 7 Nc
| Giants Stewart
| A very important question is to be de-
cided upon this appeal namely. whether
| IN admiralty court, an action can be
maintained for damages for an accident
causing death in a state or territory In
the absence of a statute giving the Wild
oW or heirs the right Is MAINTAIN such
an action. There is no specific statute
IN Hawaii relating to the question, nor
Is there one on the United States statute
books. Such a bill was introduced in
the last legislature by Representative
beckley, at the last session, but was
eidetracked In some manner
This question of statutory provision g
Ia
Is laid by appellants who, in their brief.
allege:
No civil action can be maintained in
court If admiralty to recover damages
resulting from the death Of Kamaka Ke-
kauoha's husband being on waters nav
lgable from the sea, in the harbor of.
Honolulu, Territory aforesaid alleged to
have been caused by negligence. n tie
absence of an act of Congress or of a
Territorial statute gvin, a right of ac-
ton herefor."
The second point raised IS hat En-
Okla, appellee's husband, was guilty of
negligence per Sc, or 1t least contYibu-
tory negligence"
Further, the argument is
The rule of law that III the presence
of great and unforeseen danger, one is
rot expected to act with good Judgment
does not apply where the injured party
was placed In the dangerous position by
his own contibutory negligence ana in
such case the injured party must bear
the consequences of his own act"
Continuing. appellant argues: The
weight of the evidence does not show
negligence on the part of the officers of
the vessel in using a five-eighths inch
chain"
In regard to the alleged defect in the
chain, appellant says:
Appellant should not be held at fault !
In not producing in evidence the broken !
link and having been unable to do so, !
evidence as to the strength of the re-
mainder of the chain should not have :
been disregarded because it was not |
shown that those testifytng as to the !
part of the chain had not seen :
the broken link.
The Court erred in disregarding the |
testimony of scientific experts called on |
behalf of the appellant upon the question !
of the sufficienCy of the 5s-inch chain
used in hauling the bed-plate away from
the vessels side; and upon the question
that 3s-inch cham as approximately
twice the tensile strength of straight
bar of iron of the same size.
Summing up their argument in conclu-
sion, appellants say:
"D That this action cannot be main
tanned in a court Of admiralty in the
absence of statute.
70 No negligence has been shown
which would warrant a recovery by ap-
1enee.
"(3) That appenee's deceased husband
vas guilty of such negligence as bars !
right to recovery In admiralty In this
lotion.
20 It is evident that the District
Court misunderstood the evidence audue- {
ID before it, and based it's decision large
Y upon a theory that the chain which
)roke was subjected to the whole strain
# the 25O00-pound bed-plate.
at is respectfully submitted that the
lecree of the District Court for the
Territory of Hawaii should be reversed.
md the libel dismissed