3 Haw. 823 | Haw. | 1877
OPINION BY
This ease comes before the Court by appeal from the decision of Mr. Justice Judd.
The case is also free from embarrassment on the fact that the captain had surreptitiously landed nineteen tins of opium, and had eighteen other tins ingeniously concealed in the bulkhead behind his bureau.
The points presented in argument were these: (1) Can the ship, which is the property of innocent third parties, be forfeited by the unlawful proceeding of the master ?
It would be sufficient to make answer that the statute of this kingdom expresses in language too plain to admit of other construction that such a penalty may be enforced. This construction is not affected by the fact that the laws provide also other penalties, and that in the discretion of the Attorney General, other proceedings are more commonly taken, nor by the consideration that such a law may be impolitic; and certainly not by the fact, if it be such as stated by counsel for defense, that the recent legislation of the United States has omitted and therefore repealed the penalty of forfeiture when the smuggling is committed from a vessel.
We do not, however, find the statement of counsel to be correct.
Section 2872 of the Revised Statutes of the United States (1875) forbids the unlading or delivery of merchandise brought in any vessel from any foreign port, except in open day, that is to say, between the rising and the setting of the sun; and at any time without a permit from the collector, etc.
Section 2874 reads, “All merchandise, so unladen or delivered contrary to the provisions of Section 2872 shall become
This law is Section 50 of the Act of 2d of March, 1799, and under it there have been many eases of forfeiture of vessels, to wit: the brig “Hannah,” the schooner “Industry,” the schooner “Harmony,” all reported in 1 Gallison’s Report, also the “John C. Brooks,” 3 Ware, 273, and many others. In the last case the schooner “John C. Brooks” was about 200 tons burden, from Cardenas, in the island of Cuba, arrived at Portland on the 31st March, 1861, and landed on that day, without a permit from the collector, 21,000 cigars at Simonton’s Cove, in Cape Elizabeth. Judge Ware says, “the smuggling is proved, and is not denied on the part of the claimant,” etc. Decree of condemnation was pronounced.
In the “Governor Cushman” (1865), 1 Bissell, 490, which Was a libel for forfeiture under the Act of 2d of March, 1799, Judge Miller says, “it is conceded that the owners of a ship or vessel are liable for the acts of the captain as their agent, in the discharge of his official duties, but the cook and waiter are mere employees as hands on board under the control of the captain, and may be discharged at his will, subject to provisions of law and the terms of their employment.” In this case the learned Justice refused to decree forfeiture of the vessel because the cook smuggled on board a vessel a small quantity of liquor.
It is the simple duty of this Court to construe the Hawaiian statutes as they stand. Our statutes making a ship which carries abroad a stow-away debtor, without a passport, liable for all his debts, unless, as provided by a recent amendment, it appears that the master has first caused a search to be made by the police, is one which is not common to other countries, and. may entail great hardship on innocent owners,
The language of Judge Ware in the “John C. Brooks,” above referred to, is applicable. “To extract this case from the express language of the statute, it must be shown that while the legislature said one thing they meant another. This may be shown, but it is incumbent on him who alleges an exception to prove it.’ ’
The cases cited by the counsel in support of the doctrine that the acts of the agent beyond the scope of his authority and without the limits of the legitimate business with which he has been entrusted, do not bind the principal, are not relative to the case of the forfeiture of a ship for smuggling by the master. Says Sir W. Scott, in “The Vfow Judith,” “ I have no hesitation in saying that the act of the master of the vessel binds the owners in respect to the conduct of the ship as much as if it were committed by the owner himself.” So it is true the master may imperil his ship upon the rocks of the law as well as upon the rocks of the coast, and both perils may be insured against.
2 Arnould on Insurance, 829.
We cite now at some length the language of Judge Story in the United States vs. brig Malek Adhel, 2 Howard, 233, both to show that the innocence of the owners does not protect the ship, and that statutes of forfeiture, and proceedings under them are not peculiar to this country.
“The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the Act of Congress ? Here, again, it may be remarked, that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. The vessel
“The ship is also, by the general maritime law, held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a wilful disregard of duty; as, for example, in cases of collision and other wrongs done upon the high seas or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured party.”
The United States vs. the schooner Little Charles, 1 Brock, 347, 354.
The Palmyra, 12 Wheat. 1, 14.
The Vrow Judith, 1 Rob. 150.
The Adonis, 5 Id. 256.
The Mars, 6 Id. 87.
The opinions expressed by several witnesses whose affidavits were filed in Court subsequent to the first trial, that the captain was not of sound mind, they not being experts, would be excluded under the rule of law as generally held, but it may be remarked that had the Court considered them as being admissible testimony, they would not control the opinion derived from a review of all the testimony this included, that this was simply a case of long, continued and excessive drinking.
Decree of condemnation is therefore affirmed.