
    SUPREME COURT—IN BANCO.
    JULY TERM, 1880—IN ADMIRALTY.
    
      Harris-, O, J., and Judd, J.. (Me Cully, J., dissenting).
    In the Matter of the Bark Kalakaua.
    ON ARPEAR.
    Opium was smuggled from a vessel. It appearing to the Court that the facts in evidence did not exculpate the mate from complicity with and guilty knowledge of the transaction, the vessel was condemned.
   Opinion of a majority of the Court by

Judd, J.

The Collector General of Customs on the 13th of November, 1879, filed a libel in tbis Court, alleging that on the 2d of said November, thirty-six tins of opium, containing each about three and one-half pounds, had been smuggled into this country from the bark Kalakaua, and praying for the condemnation and forfeiture of the said vessel, her tackle, apparel and furniture, and the opium aforesaid, to the use of the Hawaiian Government. After a full hearing, the Chief Justice on the 54th of November decreed the condemnation as prayed for. Appeal was taken to the Court in Banco, and at the hearing .a number of affidavits which had been taken ex parte in San Francisco were admitted by consent of the libellant, and also ■other evidence was introduced. It appearing that the Court were unable to agree, a re-argument was ordered, which was accordingly had before the full Court at the July Term, 1889.

Meanwhile, on the 24th of January, 1880, an order was made allowing the vessel to he discharged from the Marshal’s custody upon filing a satisfactory bond, which, was done.

The various questions of law which were raised by counsel for claimants have been decided by this Court in former cases, and there is no occasion to review them now.

We understand that the Government does not press the condemnation of the vessel, unless it is shown that the owner, master or mate were principals or accomplices in the transaction of smuggling opium; that is, if the smuggling was done by passengers or shippers, and the circumstances show that it was done without the complicity of those in charge of the vessel and that they could not reasonably have prevented it, we are not asked to decree condemnation.

That the alleged quantity of opium skillfully concealed in thirty-six sticks of firewood was brought to this port in the said bark is admitted. It is conceded by the libellant’s counsel that the evidence exculpates the owner in San Francisco.

George W. Jenks, the master of the bark, admits in his answer that thirty-six tins of opium were brought into this Kingdom in the bark, but says that after she arrived in Honolulu, and while she was discharging, the- opium was discovered by Custom House officials, concealed in pieces of firewood which had been brought as freight;, that about twenty-cords of this firewood had been shipped on> the bark in San Francisco by one or more Chinamen, one of whom came as passenger,, whose name he had forgotten, and who paid freight on the firewood at Honolulu. The mode of concealing the-opium in the firewood, as shown by the specimen in Court, was by splitting the stick, mortising a place in the stick large-enough to- contain a tin cylinder eighteen inches or so- long,, which was placed in the mortise and the two pieces of wood fastened together by glue and nails.

Mr.. W. A. Markham, Port Surveyor and Custom, House-'Guard, testified that the bark arrived on Sunday,, the 2d day of November; that he went on board and asked the captain if he-had any Chinese passengers-; he said “yes;” asked Mm if the Chinese had any freight; he said “no,;” which is argued does not correspond with his averment in his-answer that a Chinese passenger had brought the wood as freight. The wood is not on the inward manifest, but the freight list shows that twenty cords of firewood were sMpped by Chinamen consigned to Tongkee, freight $5.50 per cord. It is noted on the-freight list “no mark,” “no bill of lading.”

Mr. Eldrich, a clerk of W. 6. Irwin & Co., the consignees’ of the vessel, testifies that a Chinaman paid the freight upon the wood, $125. Eldrich asked him if his name- was Tong-kee, and he said “ yes. ” He paid the money and got an order for the wood.

Col. W. F. Allen, the Collector General, says that a China-man brought a Custom House blank permit with twenty cords of firewood writteu upon it for a permit. “ He- did not know his name, said the firewood did hot belong to-him, and I told him he could not get a permit; he said he knew who it belonged to, and I told him that the party must come for it; have never seen him since, nor has any one applied for permit for the wood.”

The passenger list signed by the captain contains the name of Afong as passenger, the only Chinaman on board. Capt. Jenks testified that he did not include the firewood on the inward manifest because he had no record of it, because there was no bill of lading for it'. On being-shown that the wood was on the freight list, he said he did not know whether the list was opened on the voyage down or not, and on reflection added that he had looked at it to see the amount of. the freight money. He says-that- the Chinaman who came down as passenger brought him in Honolulu the receipted freight bill, and that was the first he knew he claimed the wood.

He said further that this Chinaman was not entered as a passenger at the office, but that he found him on boai’d twenty minutes after the vessel left, and made him pay $20 passage money under threats of putting him off on the tugboat.

A. L. Eitchie testified that he is the master of the bark D. C. Murray, but was mate of the Kalakaua, and in that capacity superintended her loading at San Francisco. He took command of the Murray, and both vessels sailed the same day from San Francisco. He says that this firewood, which he judged by his eye to be twenty cords, was hauled down to the vessel by two Chinamen on a one-horse dray. He took the Chinamen’s word that it was twenty cords. Seven loads were hauled the first day, afterwards three loads, and two loads another day, and so on. That he took the first lot down below and used it as dunnage. We piled the wood oh the wharf until we wanted to use it. He says that he did hot know the Chinamen, that he did not give them a receipt because they did not come for it, but said he would when all the wood was down. That he did not put the wood on the cargo book because he had given no receipt for it, and no bill of lading had been given for it' because- it was not down on the cargo book. It took about a week to bring all the-wood down. Part of the wood was used as-'dunnáge fore and aft and part placed on deck. What we did not require for dunnage we placed on deck.

It is in evidence that all the wood was estimated on discharging to be about 16-§ cords, and of this abo”t 12 ‘jrds were on deck, that all of the 36 sticks containing c fium were stowed in the hold and used as dunnage. The dk ovny was made after all the cargo of the bark but wood and >\ick' had been discharged, as late as Friday, the vessel ha’ ng /egun to be discharged on Monday. At that time, Fnd- y nearly all the wood that contained no opium had been disc; s ¿ged on to the wharf, and the wood containing the opium ren ained in the hold. We have then two remarkable facts — -fi i, all the wood that was loaded with opium, say 36 sticks out, f several thousand, had been stowed under deck away '':on observation; and secondly, all this loaded wood was t ¿e 1 ist to be discharged, and had not been discharged when ñe i iscovery took place. Another very significant fact which was testified to must be mentioned here: on the previous vo; age a mndred tins of opium were found concealed in the ore-peak under firewood used as dunnage belonging to the slnp. This is very important evidence. The opium on the previous voyage could hardly have been concealed in such a plac e without the connivance of some one connected with the vessel. Another attempt similar in character is made in the case before us; like methods of concealment are used, and the inference is that the sticks containing the opium were stowed below by the assistance of some one connected with the vessel, and that it was not to be put out until the rest of the wood had been discharged and delivered. If the wood was left out of the inward manifest by design, it might have been with the intention of putting the Custom House officers on a false scent, and finally when the danger was over, the sticks containing opium, retained in the hold, were to be delivered to the consignee or purchaser.

There are many points in the evidence difficult to be reconciled. Captain Jenks is not sufficiently impressed with the fact that these sixteen or twenty cords of firewood were on bis ship to remember to put tbem on Ms inward manifest, though they were on his freight list, and the largest part of the wood itself was on deck and in sight during the voyage down, and though the owner, Mr. Merrill, testifies that he had sent the captain to examine the wood in San Francisco and see if it was straight, of which fact he (the captain) says nothing in his examination, though he mentions it after the San Francisco depositions had been received here. It has not been explained to us where Captain Jenks saw the wood, at the Kenton Coal Company's yard (where sixteen cords were bought), at Higgins & Collins’ yard (where three cords were bought), or elsewhere. If he went as was likely in company with the Chinamen, they pointing the wood out which they had bought or intended to buy, how could it be true as the captain states that the first he knew that the Chinaman claimed the wood was on his presenting him the freight bill receipted in Honolulu? Another palpable contradiction is in the statements as to which wood was first stowed below to be used as dunnage.

Mr. Kitchie, the mate, says, “the first lot (hauled) we took down below and used it for dunnage fore and aft.” The witnesses whose testimony was taken in San Francisco all agree that the first lot of wood was hauled from the Benton Coal Company’s and was honest wood, there having been no opportunity for tampering with it. Mr. Ritchie also says, “this firewood was hauled down on a one-horse dray by two China-men,” and again,, “two Chinamen liauled the wood on a dray,” and “took Chinamen about a week to bring all the wood down.” The depositions of many persons in'San Francisco agree that sixteen cords were drayed down from the Benton coal yard by Charles- Aigeltinger, the three cords from Higgins & Collins by A. Saxtorph, and Mr. Ennis, the clerk of the Kalakaua, says, “ a third drayman, also a white man, brought down one and perhaps more loads.”

Which wood contained the opium? Mr. Ritchie says that tbe wood first delivered was put below as dunnage. Tbe San Francisco witnesses say that tbis was bonest wood and could not bave contained opium, If tbe last load bauled by tbe mysterious third drayman, said to bave come from Chinatown, contained it, then Ritchie does not tell tbe truth, since tbe wood containing opium was used as dunnage and was put down first. If it be said that tbe opium came among tbe last wood delivered, tbe ship at that time was nearly loaded, her cargo already stowed, and tbis wood could not bave been used as dunnage under if.

Abcbin, tbe assistant salesman in tbe Renton coal yard; says that while tbe wood was being delivered, as required for loading vessel, tbe two Chinamen told him they bad one load of wood up town which they wanted our dray-man to haul to the Kalakaua. If tbis is tbe load referred to by Mi’. Ennis as “the one load or pósssibly more loads,” bauled by tbe third drayman, it must bave been bauled after tbe larger part of tbe wood bad been delivered at tbe ship’s side and stowed below, and it would follow that it was not used as dunnage.

Mr. Ritchie says that one of tbe two Chinamen who brought tbe wood to tbe ship came'down as passenger in tbe bark. But Abcbin, above named, says that since tbe sailing of tbe Kalakaua be saw these two Chinamen who bad brought tbe wood, in San Francisco. It is, therefore, impossible that one of them could bave come down in the bark.

It has not been explained why, if Mr. Merrill, Mr. Brow and others knew tbe names of tbe shippers of tbe wood to be Ah Sing and Ah Foo, as they say they did, that these names were not put down in tbe freight list, whereas the names of the consignee Tonkee was inserted, a man whose identity seems to bave been lost.

Mr. Ennis says: “Tbe wood was bandied roughly and tbrown a considerable distance by draymen on a pile. Every stick was bandied by tbe draymen and the Cbinamén in discharging the loads as they.came to the vessel.” The persons, whoever they were, who were aware that some of these sticks contained tins of opium, must have had such confidence-in its solidity and security inside the sticks of wood as to have made it unnecessary to use caution in its handling, and the mere suggestion to handle such articles carefully would have been suspicious of itself. Wood that stood successfully the tossing on to a pile on the wharf could be trusted to stand the further test of being stowed below deck. It seems to us that the sticks containing opium were placed below, more for convenience in being put ashore^at Honolulu successfully, than to escape the notice of ordinary observers on the passage down, for the wood that Was landed gave no indication outwardly of its contents except on a, very close scrutiny.

The fact that Mr. Ritchie did not come down in the vessel, and, therefore, could have been expected to have given his assistance in any way to the landing of the opium at Honolulu,, is urged as proof that he had no guilty knowledge of or complicity with the enterprise-. If he arranged matters so that ¡the sticks of wood containing the opium should be put below and used as dunnage so that they could have been left in the vessel after she was discharged, without suspicion, and finally put ashore, this is sufficient to charge the vessel with responsibility. For an owner in a foreign port would do no more than to put the contraband article on board where it would be likely to escape detection and leave it to confederates to land it. Captain Ritchie sailed as master of the I). C. Murray on the same day with the Kalakaua, and might reasonably have hoped to have been at this port in time to have received his share of the venture, if it proved successful. That some Chinamen, both in San Francisco and in Honolulu, were concerned in this affair we cannot doubt. Considering the nature of the article smuggled — opium—a drug which goes to California from China, and which is smuggled into this country for the purpose of being sold to Chinamen here, who are its chief consumers, it is hardly possible that opium could be smuggled here without the active co-operation of Chinamen, either as vendors and shippers or as consignees and purchasers. But the question for us to decide is not whether the unknown Chinamen are guilty but whether, in view of all the facts and circumstances, those in charge of the vessel are exculpated from complicity with this smuggling.

Messrs. Castle & Hatch, proctors for libellants.

A. S. Hartwell and S. B. Hole, proctors for claimants.

Honolulu, August 27, 1880.

We are of the opinion that the evidence does not exculpate them, but that the guilty knowledge and complicity of the mate, if not of the Captain as well, is established, and therefore confirm the decree of condemnation made by the Chief Justice on the 24th of November last.

DISSENTING OPINION OE

MR. JUSTICE McCTJLLY.

As dissenting in respect to the conclusions of fact from the opinion of the Court, I deem it proper to state briefly my view of the case. The important condemning fact which attaches the guilt of confederacy with the Chinamen to one or more officers of the ship is, that the thirty-six loaded sticks were all among the wood used as dunnage. The argument which is so strongly put by the Court, would lose its basis if the opium sticks had gone with the wood on deck or had been found scattered among the deck load, under the hatch, or in the dunnage, for it would not have needed the help of the ship’s officers to let them go as they might, on and off the ship. But it seems to me (1) quite within the chances of things that the loaded sticks should have all gone to the same part of the ship, it being likely that they were brought in one load; and (2) that it is not clear that it was desirable to the principals in the smuggling venture that their particular sticks should go below. The wood which went below, and particularly if to be used as dunnage, must receive rougher usage. In throwing it down, stowing it and pitching up, it would be subject to more chances of splitting, of scrutiny and generally an accidental discovery. I do not think that the chance of its passing to the wharf and being carted away would be so good for the dunnage as for a deck load. There would be greater danger that a few of the loaded sticks should be left at last, and it would not do to inquire for the missing sticks of wood. The danger of jettison would not be taken into account in such a voyage as may be expected between San Francisco and Honolulu in a matter which was all a risk. If the scheme of the operation was that the shipment should go as common firewood, it would not be aided by stowing the valuable sticks below. The form of the disguise was to be its protection, and the less the variation in its treatment from honest cargo, the better the chance of escaping detection. I cannot draw an inference that these men were over cunning, and took in an alien confederate to divide the profit for aiding to do what was of such very doubtful value to the venture.

I am furthermore drawn from the opinion that the mate, likewise the Captain were partners in the attempted smug gling by the failure to enter the wood on the cargo book, and afterwards on the inward manifest. It does not appear likely that men accustomed to Custom-house formalities would have omitted such simple routine entries if they had possessed a guilty knowledge, and had an interest in the shipment being passed along beyond the point of danger without unnecessary inquiry and obstruction.

I am forcibly struck by the discrepancies in the statements of witnesses with themselves and with each other. If I could assume them guilty, unless they could prove themselves innocent, I might agree with the majority of the Court, but clear proof that any officer was concerned in the smuggling, I do not find, either in the testimony or in the circumstances of the transaction.

Honolulu, August 27, 1880.  