The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-09-27
LOST TRUNK
DAMAGES
Judgment for Gene.
We've DoWsett i'm
II. 5. Court.

damages of s42e for the loss of trunk
containing clothing. in her admiralty
suit against Wilder's Steamship Com
pany, by Judge S. B. Dole in lengthy
decision rendered yesterday in the
United States District Court. ]. ],
Dunno conducted the case for the libel
liant, and Kinney, McClanahan & Coop
er that for the iibellee. The court states
the case as follows:
THE Hbellant claims damages for
injury to a trunk of clothes occurring
at the landing of Maizena,, Island OF
Maui, while in one of libeIlee's boats
on its way from the shore to the ship.
The Hbellee, admitting the injury, de-
tends on the ground that such injury
was caused by a Wis major or act of
God, in that, as the boat left the shore
it was caught unexpectedly by blind
roller and swamped under circum-
stances in which 1t could not have been
prevented by any care or precautions
on it's part; and also, that if it is liable
hundred dollars, as it had notices to the
passengers in large type displayed on
the walls of its Office in Honolulu,
where tickets are sold, and also on the
walls of the state rooms on the said
steamer Kinau to the effect that the
ship would not be liable for damages to
baggage for any amount over one hun
dred dollars
Judge Dole reviews the more or less
expert testimony on the question OF
negligence, in the course of which he
gives the following interesting defini-
ton of wave action:
THE evidence in regard to The char
acter of rollers, or waves, which caus-
ed the damage is somewhat vague and
contradictory. An effort was made by
the defense TO snow that there were
two classes of waves coming ashore at
that place of an entirely different char
acter; that the ordinary waves were
rolling in and then blind roller, some
thing quite different, would come in.
AS l understand the matter, waves ap-
preaching shore are substantially the
same in character. Ordinary waves on
reaching a certain depth of water surge
and break, and they break on about
the same line, making the familiar belt
of breakers. Now and then a larger
roller comes in. and because of its size
it must break In deeper water than the
ordinary waves; when it reaches it's
depth it suddenly surges at its summit
and breaks in a greater or lesser de-
gree according TO the character of the
bottom. 1t appears to come suddenly
because the ordinary waves are not
breaking at that point, and its appear
ance is usually unexpected.
"'These men, who were managing the
boats, We're familiar with that landing
and knew that when the sea was rough
the landing was dangerous, and they
had developed the custom of having
some one stand at the outside end of
the slip to watch the waves coming in
from the sea and call out when there
was a good chance to go out. That IN
itself shows that the place was dam
gerous and that dangerous waves were
liable to appear in such weather, and
that it was a prudent thing to watch
for them Mr. Wight says that no
such watch was required and that it
was Objectionable because it would di-
vide the authority as regards the man
agement of the boat. Admitting this,
it is, 1 think. proved that the men of
their own motion had carried on this
practice indefinitely, which may not
have been known to the president OF
the company, MI. Wight"
After further minutely discussing
the testified facts, Judge Dole says:
Although the Wis major, act of God
and peril of the sea, have distinctive
meanings, they are often confused with
each other and generally are reducibIe
to the term inevita bic or unpreyent-
able accident, which is a catastrophe
occurring without the intervention OF
human effort or sagacity.' The burden
of proof upon failure to deliver the
goods in good order and condition, is
on the carrier, to show that the loss re-
suited from an inevitable accident or
some other cause for which it is not
responsible.
Il am not convinced that the acct
dent in this case was an inevitable one.
but am of the opinion that it occurred
because of the negligence of the SER
wants of the A4uellee in loading the boat
so that the necessary use of the oars
was interfered with, and by their care
lessness in managing the boat in the
face of danger that called for more
than ordinary care, which negligence
and carelessness was a direct and
proximate cause of the loss"
Upon the alternative defense Of the
company the court says:
THE defense Of the libellee that IL
liable at all it is only liable for one
hundred dollars, is based on the fact
that it had notices limiting its liability
for injury or loss of baggage to tnaI
amount, posted in large type on the
walls of its office in Honolulu where
tickets are Sold and also on the walls
of the state roems of the steamer
Kinau. The libellant testified that she
had never read these notices.
While it is undoubtedly competent
for carriers of passeng gers, by specific
regulations, distinctly brought to the
knowledge of the passenger. which are