The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-10-16
MANCHUR|A
wins POINT

An intcrlocutory decision was givci
by u. : Judge Dole yesterday on tn,
exception to libel for salvage In tn,
admiralty suit OF Commercial Pacific
cable co. Va. Steamship Manchuria. II
was found that libelant. as charterei
OF the steamship Rcstorer. had not al.
legged an interest In the latter sufficient
to Justify its claim OF right to brinI
suit The exception was allowed will
leave to libelant to amend its lbe
within ten days. The syllabus state,
the law thus:
I'm n libel for salvage by the char
terer of the vessel used In the salvage
services, an interest of libelant in such
vessel justifying his claim of right to
bring suit Is material fact and should
be alleged"
| Following is a portion OF the court
decision:
THE libel begins with the following
| words: The libel and complaint of the
Commercial Pacific Gable Company. a
| corporation organized and existing
under and by virtue of the laws of the
| State of New York and doing business
| within tho Territory of Hawaii. the
charterer of the cable steamship Re-
| storer. whereof Basil c. Combe Is mas
ter. which libel is brought on behalf of
itself and of the master, officers and
crew of said c. S. Restorer, against
the steamship Manchuria.' etc. Article
second of the libel begins as follows:
That on Monday, the Goth day of Au-
gust, A. d. 1906. the said cable steam
ship Restorer being of the tonnage Of
$3.50 tons gross. and 1884 tons net reg
lister, whereof the said Commercial Pa
ci.ic Gable Company was and still Is the
charterer,' etc.
'"rhe libelee filed its exception to the
libel on the ground that 1t does not
appear in and from the allegations of
said libel that said libelant has suffi-
cient interest in and to the cable ship
Restorer mentioned in said libel to en-
title it to maintain saId libel against
the said steamship Manchuria.
THE authorities recognize distinc-
ton in charters to the eeffct that where
by the terms of the charter-party the
entire vessel is let to the charterer
with transfer to him of its command
and possession and consequent control
over its navigation, he will generally
be considered as owner for the voyage
or service stipulated. But, on the other
hand, If the charterparty let only the
use of the vessel, the owner at the
same time retaining its command and
possession, and control over its naviga-
ton. the \charterer Is regarded as
mere contractor for a designated SER
vice, and the duties and responsible
ties of the owner are not changed. In
the first case the charter-party is
contract for the lease of the vessel; In
the other 1t Is "A contract for special
service to be rendered by the owner of
the vessel.'-Leary VS.. United States, 81
U. S. COZ, go; Oracle VS.. Palmer, 81
I'd. COS; Reed VS.. United States, rs Id.
sol, COL.
Under the allegations of this libel
there is no averment that the libelant
holds the vessel under a charter which
gives it such control Of the vessel and
so renders 1t responsible for its full
management and It's navgation-fur-
nishing supplies and providing a crew
troll thereof as owner for the time be-
ing. 1t therefore does not appear that
the libelant has "A legal right to salvage
from the allegations of salvage services
set forth.
Counsel for the libelant claims that
this point is sufficiently covered by the
allegations of article IA of the libel,
which AYERS that libelant by reason
of the services rendered as aforesaid
deserves and is justly entitled to meet
and competent salvage l do not think
that this is a sufficient averment of
ownership for the time being as is re-
quired by the rules of pleading.-Ad
Rule %. 1t Is simply an averment that
under the allegations of the libel 1t Is
justly entitled to salvage, which Is a
proposition of law
A citation is made by Judge Dole of
1.-The Cherokee" case, In which the
ownership of the tug Monarch. stated
in the libel heading, was omitted from
the allegations. and it was held:
The ownership OF the tug is a ma
terial fact, and 1t may become of es-
sential Importance in the protection of
the respondent in obeying the decree
of the court in this case. 1t should
therefore be alleged in distinct arti-
Gle CRule 23d, ADM. so that re-
spondent may traverse it, II he be so
advised, or at least may require proof
of 1t. Even If this has not been adopt
ed as the universal rule, 1t Is better
aAICnV A elDEnN A