The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-28
DECISION
RENDERED
Kamaka Kehuao-
ha is Awarded
Damages.
$i577.l2 WAS
TnE RECOMPENSE
Judge EStee Decides That the
Schooner Robert Levers
Must Pay.

In the case of Kamaka Kekauoha VS..
the Schooner Robert Levers Company,
decision was given yesterday in the
United States District Court for
u,577.12 and costs, in favor of the plain
tiff.
The opinion of Judge Estee, by whom
the decision was given, is in part as
follows:
The Iibellant is Kamaka Kekauoha, the
widow of Enoch Kekauoha, deceased.
The libelee is corporation and Is the
owrer of the American schooner Robert
Levers.
1t appears that Enoch Kekauoha was
killed on the oath day of July, 1900, at
Honolulu, by being hit by large iron
bed plate weighing 5000 pounds, which
was being unloaded from the said
schooner and which swung against him
as he was seeking a position of safety
by climbing up the side of the said
schooner Robert Levers.
1t further appears that deceased was
one of four draymen working for Hus-
tace and Company of Honolulu, and
that they were on the wharf, to which
said vessel was tied, to load and haul
shipped as freight on this vessel from
San Francisco to Honolulu, and that the
captain of the Robert Levers and the
other officers and men We're engaged IN
removing the said bed plate from the
vessel to the truck on the wharf. This
was being done by ropes and blocks at
tached to the main and mizzen masts or
the vessel with guy line fast to boil
err lying on the wharf; and that the Off
on the vessel had the eX-
elusive control of the handling of the
same; that all the lashfngs and lines so
employed were rope, except a snort
chain, said to be fifteen feet in length,
which broke and then the casting swung
around to the side of the ship and kill
ed the husband of plaintiff. He being on
the inside of the swinging iron plate, ran
to get on the deck of the vessel to avoid
1t, but was caught and killed before
reaching there.
This action Is brought by the wife Of
the deceased. alleging that her husband
was killed by the negligence of the off,
GERS and men On the vessel
The accident occurred within the ad-
miralty jurisdiction of this court.
The English common law did not per-
nit such actions, but in 1916 the English
Parliament passed an Act known as the
Lord Cambell's Law, which practically
repealed the old Common Law rule In
such cases provided. The Hawaiian ISL
ands had never fully adopted the Eng
lish common law as their law. On this
point see especially Rake VS.. Horton, 2
Hawaiian, page 211, where the Supreme
Court of this Territory laid down the
broad and enlightened rule. THAT dam
ages in this class''of cases may be as
sessed' on the principle of compensation
or reparation." And that is now the law
of the Territory Sections 1915, 1922, and
1894 OF the Civil Laws of Hawaii, which
are referred to by counsel for lbeliant,
merely point out how actions like the
one at bar can be brought The statute
assumes that the right eff action exists,
but it seems that 1t nowhere in words
directly declares 1t does exist; but as
the Supreme Court of the Territory has
held that it did exist. and In common
right the unlawful killing of a human
being should give to the surviving widow
an action against the guilty party this
court will be largely controlled in this
matter by that opinion. It also seems to
BIO the settled law that In damage suits
Ike the one before US, that action
may be brought in the Territory for
damages in personam In admiralty for
the unlawful killing of a human being;
and more particularly since the Supreme
Court of the Territory has decided the
cese of Kake VS.. Horton Q Hawaiian 211
which is on all tours with the one un-
der consideration.
But 1t would be going backward In the
line of civilization to adopt the rule
that cause of action dies with the per.
son unlawfully killed. We have observ-
ed that England has by Act of Parlia-
ment arrested the evil complained of and
now one man can not Illegally kill an.
other man and deprive a family of the
husbands support and yet suffer no le-
gal responsibility therefor; II this were
so, 1T would bring down to us the bar.
barism of the Middle Ages, with none OF
It's chivalry. We have already shown
that another rule was fixed by the Ha.
waiian judicial precedent IN this Terri.
tory. But beyond that there Is no com.
mon law of England extant on this sub.
Ject at this time The common law rule
as to this class of actions was repealed
In 1916. The common law of England Is
the lex non scripta of that kingdom, con.
sisting of the immemorial usages lega
maxims and customs of the country. but
when Parliament interferes and passes
an Act on the same subject, as it did In
this case, 1t thereby destroys the com.
mon law rule In relation to the matter
involved in the enactment, and In this
case Parliament did repeal the old Com.
mon Law rule by enacting a new law
which prescribed among other things
that the previous Common Law of Eng.
land was to the effect that mo actor
at law was maintainable against a per.
son who by his wrongful act may have
caused the death of another person." and
Parliament went on to say that ''Be II
therefore enacted that whatsoever the
death of a person shall be caused by the
wrongful act, neglect or default of an.
other the representative of the
party injured may maintain an actor
and recover damages in respect thereof
and that such action may be
maintained Notwithstanding the death OF
the person injured" Thus clearly
changing the common law rule, for this
Act Of Parliament has become the Law
of England.
II may be noted that England has tax.
en- a long step in advance of some of the
courts of our own country on the dues-
ton of holding the party responsible who
unlawfullv causes the death of another
person. The old rule so much relied up-
on by the technical law learning of our
country no longer exists either here OIL