The Hawaiian gazette., 1901-10-01
TO COURT
OF APPEALS
TheAdmiraItyLaw
to Be Tested
Further.

. The second appeal TO be taken from
Judge Estee will be presented to the
United States Circuit Court of Appeals
for the Ninth District next week Tine
appeal is taken in the case of the Schoo-
ner Robert Levers Co. VS.. kaaakl ke-
kauoha. wherein the appellee was award
, ed damages in the sum of Sl,5IL1Z for
death of her husband, Enoka Kekauoha.
The latter was drayman employed by
Hustace q Co., and who was assisting
i'm the removal from the Robert Lew
ers' of bed-plate, weighing twelve and
one-half tons. While the bed-plate was
suspended in md-air one of the chains
broke, causing the heavy iron to swing
against the schooners side. The de-.
ceased was caught as he endeavored -
get over onto the deck, and was severely
crushed. dying from his injuries.
The appellants in this case are repre-
scented by Smith Il Lewis. and Mr.. Lewis
will 20 to San Francisco on Wedn' sday's
steamer to present brief and argument.
The appellee Is represented by I. Nc
Giants Stewart.
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 wid
ow or heirs the right 10 maintain such
an action. lHtTt - no SDctilt Slltutt
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
Beckey at the last session, but was
sidetracked in some manner.
This question of statutory provision IS
the one upon which the greatest s,ress
Is laid by appellants, who, in their brief.
allege:
mo civil action can ba maintained In
n court If admiralty 10 recover damages
resulting from the death of Kamaka Ke-
kauoha's husband, being on waters nav
igahle from the sea, in the hHrbor OF
Honolulu Territory aforesaid, alleged to
have been caused Ivy negligence, n the
absence OF an act of Congress or of q
Territorial statute giving right of &C
ton herefor."
The second point raised is mat EN-
Okla, appellee's husband, was guilty o.
, negligence per Sc. or at least contribu
. tory negligence"
/. Further, the argument is
THE rule of law that in the presence
of great and unforeseen danger. one l.
rot expected to act with good judgment
{ does not apply where the injured part.
was placed in the DANGEROUS position D!
I his own contibutory negligence. and II
+ such case the injured party must bea
= Continuing, appellant argues; 9TH
weight of the evidence does not SHOW
e negligence on the part OF the officers
y the vessel in using a fve-eighths Incl
chain
!, In regard to the alleged defect in tn
o chain, appellant says:
appellant should not be held at faui
h in not producing in evidence the proke
link; and having been unable to do sc
20 ha strength of the re
mainder of the chain should not hav
:, been dis, esarded because II was no
IL shown that those testifying as to tn
II remaining part of the chain had not see
the broken link.
Z. "The Court erred in disregardIng TN
testimony Of scientific experts called o
5 behalf of the appellant upon the questio
Of the suflciency of the ss-inch chai
:, used in hauling the bed plate away froI
the vessels side; and upon the questo
= that %-inch cham as approximate
10 twice the tensile strength of straigf
s. bar of iron of the same size.
d Summing up their argument In concl'
e sion, appellants say:
"u That this action cannot be mar
= tanned in n court of admiralty in IN
lie absence of a statute.
10 "a No negligence has been snow
Id which would warrant a recovery by az
er pence.
. "() That appellee's deceased husoan
lie was guilty OF such negligence as bal
IF n right to recovery In admiralty In tn
l. action.
80 1t is evident that the Distri'
IF Court misunderstood the evidence audu'
st ed before It, and based It's decision larg'
n ~ upon theory that the chain whlc
n broke was subjected to the whole strai
re OF the 25, 900 pound bed-plate.
IS 1T is respectfully submitted that II
y. decree OF the District Court for II
" Territory OF Hawaii should be reverse
le and the libel dismissed"