The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-12-11
CABLE co,
wins POINT
tFrom Saturdays Advertiser,

From Saturdays Advertiser)
U. 5. Judge Sanford u. Dole yester-
day allowed the exception of CONNER
cial Pacific Cable Co. 10 the answer of
Pacific Mail Steamship Co, claimant
and intervenor, in the C. F. C. Co.'s
admiralty suit for 100000 as salvage
money against the steamhip Manchu-
ria. BaiIou * Marx represent the Ii
belant and Kinney, McCianahan &
Derby the libelee.
The syllabus thus states the law of
the case:
THE answer alleged among other
matters that assistance furnished by
libelant through its steamship to Ii
belize, while in a perilous situation, was
understood both by the claimant and
its representative and by the llbelant
to be in the nature of a special and
personal favor to the claimant and It's
representatives, and not as a render
ing of salvage services, and that such
matter is pleaded in mitigation of dam
ages.
Held, on exception, that such allie
cation offers no basis for mitigation of
damages"
Judge Dole says at is a we'll estab-
lished principle in law and equity that
no financial obligation is incurred by
the recipient of services that are gra-
tuitous." Also:
Il do not know of any reason why
the principle of non-liability for gra-
tuitous services does not apply in ad-
| miralty. If this engagement OF the
| Restorer was, as alleged, an agreement
or understanding for the gratuitous
services of the Restorer, the libelee
should have the right to allege and
prove 1t, as a defense in bar of the
| suit. 1t Is not, however, pleaded in
bar but in mitigation of damages. Why,
| If the theory Of a gratuitous service
| is relied upon at all, should 1t not be
relied upon as complete defense?"
1t will be remembered by readers of
| the Advertiser that the P. NJ. s. Co. in
| it's answer represented that the cable
people in New York were under obliga-
| tions to Mr.. Hartman, it's official head,
| and that he and they understood when
the Restorer's assistance was asked
| for that it would be rendered as a
| matter of friendship. Judge Dole says
: lin effect that such might have been
| the understanding at first, before the
situation was fully known in New
York, yet later information might have
| influenced the claimant Up. M. s. Coz
| not to take full advantage of such an
understanding but, considering the ex-
| tent and danger of the services of the
steamer Retorer. was led to present
such a statement in mitigation only
of damages. This is the courts coma
clusion, speaking of the claimant:
IF it had the right to plead the
| alleged understanding as a full de-
| Tense, may it plead it in mitigation?
| 1 have been unable to find any prece-
dent on such a question. If such al
legged understanding is pleaded in bar
of suit, it raises a definite issue I'M
! der which the case may be disposed
of or go to trial on the other allega-
tions of the answer accordingly as
| the plea should be sustained or not;
but as plea in mitigation, If the al
| legation should be fully proved, what
guide would it furnish to the court
| in it's attempt to weigh the amount Of
mitigation which such an understand
ing might justify? 1 can find no an
swer to this question. Having de-
cided not to plead such understanding
| as a bar to the suit, l do not see that
the claimant can plead it for the pur-
pose of mitigation 1t has in effect
waived whatever advantages it might
have been entitled to of using 1t as
complete defense, and cannot plead
1t III mitigation of damages"