Year: 1861

slolv De preJudced oy our entertaining the case,
have not shocked our sense of right by asking the
court to decline Jurisdiction, and remit the libel
lants TO the courts of Massachusetts, for hearing


This court Is by no means desirous of burdening
ITSELF unnecessarily, with the labor and RESPONSE
bhty of adludieatng the claims of foreign seamen
against masters and owners of foreign ships but
would always prefer that they should, if possible,
settle those claims out of court by the aid and as
sistance which their Consus are authorized and
required to afford them. But in the present case,
the bellants entered into the shipping contract at
Honolulu, for service on board of the Benjamin
Rush for one season only, and back to Honolulu,
where by express contract the master agreed to
discharge them and pay them their wages. taking
the value of oil and bone fixed at the u. s. Con-
sulate in Honolulu as the basis of settlement The
port of Honolulu thus became the home port of the


bellants, and indeed, so far regards the settle
ment of their claim for wages and all its Incidents
Honolulu may be looked upon the home port of
the vessel alsO for here is agent and part own
er who has full control of the business of the shin
And as the hbellants and the agent of the owners
have failed to effect settlement with the aid of
the Consul, what good reason could be assigned for
this Court refusing to entertain the suit /? The IL
bellants, although of the humble class of seamen,
are American citizens, temporarily or permanently
residing here, and, as was argued with great force
and propriety in the case of Young us Phillips.
have the privilege in all proper cases, of resortng
to the Courts of this Kingdom for the protection
and enforcement of their rights, in virtue of the
Treaty between the United States and the Hawaii
an Islands. international comfy, therefore, if
rightly understood and applied, would seem to me
to require the Court to exercise Its jurisdiction in
this case, as a friendly act to the citizens of q
friendly nation.


Again. the decision of one of the chief points in
the cause, far concerns the libellant Warren.
has been regarded in the argument as depending
upon the existence, or non-existence, of an alleged
usage custom, said to obtain in Honolulu in re-
lation to the paying off of foreign seamen. The
question as to whether not such custom does
exist here, and if it is so UNIVERSAL certain and
reasonable, as legally to bind parties to contracts
of shipment made or terminated in this Kingdom
is purely question of Hawaiian municipal law
which can only be adjudicated and decided with
the force of authority, upon Hawaiian soil, by
Hawaiian court OF justice. No agent of foreign
government has power, authortatively, to adiudge
and declare what shall, or what shall not be con-
sidered part of the internal law of this Kingdom
And If this cause were remitted for trial to the
Courts of the United States it is obvious that this
question of alleged custom would have to be adj
Indicated there at great disadvantage and incon-
yenience, while any decision rendered there upon
this point would have no effect in any future case
as against contrary decision made by our own
Courts.


will now proceed to examine the merits of the
case, which lie within a small compass. The con-
tract set forth in the libel; its fnlfilment on the
part of the libelants the amount of oil and bone
alleged to have been procured during the season
and the lays or shares claimed by the bellants are
all admitted by the respondents. The question is
then, why shall the ibellants not have Judgment
The respondents say that Warren should not
have Judgment. because he has not failed to pro-
cure payment of his wages, inasmuch as it is the
custom at Honolulu to discharge and pay off all
foreign seamen, from American whale ships at the
| - hat tho
notice from the Consulate to 90 there and settle
with Warren that Mr.. Wilcox went there ac-
cordingy, and there paid, as is the CUSTOM on the
table of the Consulate. all the lay or wages claim
ed for Warren, the respondents being only anxious
to do what was right, and being altogether indif-
ferent asAto whether they paid Warren at their own
office, or at the Consulate and, further that the
sum so demanded and paid is now in the hands of
the Consul, subject TO the order of Warren SO far
as the respondents know. The libellants in their
replication, traverse several of the averments of
this answer. They deny that there is a binding
custom here to pay off all foreign seamen from
American ships at the office of the Consulate; and
the libellant Warren denies that the respondents
have paid any sum of money to the United States
Consul, or that any money is now in his hands, for
| the use of Warren with his (Warren's) consent
or appreciation. Upon careful examination, / un-
derstand this to be the whole case as made by the
| pleadings, between Warren and the respondents,
!
myself strictly to the issues so made. In regard
to the question of the alleged custom of paying off
all foreign seamen, from American ships, at the
Consulate, it is clear upon the evidence, in my
| opinion, that no universal or binding custom to
that effect exists in Honolulu. Of course all sea-
men leaving American ships at this port should
be formally discharged at the Consulate, but there
is no law or custom making it compulsory upon
the masters agents of ships to pay the seamens
wages at the Consulate. The accounts may be
adjusted and the wages paid, at the Consulate, or
at any other place where it may suit the conven-
ience of the parties to do so; but if points of diff


ference arise between the parties it is the especial
duty of the Consul, at the request of either party


presume to endeavor to adjust those differences,
and to effect settlement, for which purpose he is
| invested with certain amount of authority by his
Government.


In reference to the other point affecting the claim
of Warren, viz as to the placing, by the respon-
dents, of the amount due to Warren in the hands
of the Consul for Warren's use, am of opinion
that this part of the respondents answer is sus-
tanned by the proofs. 1t is proven to my satisac-
| ton, that the amount due Warren is now in the
hands of the Consul, although not placed there
with Warren's consent or appreciation. And it
seems to me that under the circumstances, the
Court must hold that the fact of Wsrren's not hay


ing desired expressly consented TO the pacingof
the money in the Consul's hands, cannot prejudice
the defence. The respective parties met at the
Consulate. for the purpose of settling the account
of the ship against Warren, and his claim against
the ship for wages several points of difference
arose, which settled by the Intervention of the
Consul the parties finally agreed upon the balance
due to Warren Mr.. Wilcox placed bag contain
ing large of money in the hands of Mr.. Still
man. the Consu's Clerk, as is usual at that Office,
and requested him to pay Warren's wages MIR.
Stilman counted out TO Warren's agent the amount
due him, less two and half per cent commission,
said to be retained a customary compensation to
the Consul for the assistance rendered by his clerk
in making up seamens accounts Waren's agent