Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880
No. 379.
Mr. Comly
to Mr. Evarts.
Honolulu, December 22, 1879. (Received January 23.)
Sir: I have the honor to inform you that the bark Kalakaua, late Mary Belle Roberts, has been again seized and libeled for smuggling opium, and the chief justice in chambers ordered her confiscation and sale. The Kalakaua is now under the Hawaiian flag, but is owned by J. C. Merrill, San Francisco. No conviction for smuggling—no charge even—has been made in court against any officer or person connected with the bark. The bark itself is convicted of smuggling and condemned, with no confederates of human kind. The case is one in which I have declined to interfere, as the bark is not under the American flag, though owned by an American citizen.
* * * * * * *
The case has been appealed from chambers to supreme court, in banco, .and after that there is no appeal, I believe, unless to the executive.
I inclose documents which have been circulated among merchants here—a copy of which was furnished me by the master of the Kalakaua. The notes and marks upon these were not made by me.
I have, &c.,
[From the Pacific Commercial Advertiser, Saturday, December 13.]
Opinion of the court.
| Supreme court. In admiralty. | } |
| —— | |
| In the matter of the bark Kalakaua. |
The libel in this case, which is filed by the collector-general of customs, asks that the bark Kalakaua, her tackle, apparel, and furniture, together with 36 tins of opium, containing about 3½ pounds of opium each, be condemned as forfeited to the use of the Hawaiian Government, because that, on or about the 2d day of this present month of November, the said 36 tins of opium were smuggled into this country on board the said bark.
[Page 593]At the hearing, objection was raised that opium could not be smuggled into the country because that its importation was prohibited by law, except by the board of health. But this objection being overruled, as having been decidedin previous cases, and especially in the ease of The King vs. H. Bradly, the case proceeded.
J. S. Walker, of the firm of W. G. Irwin & Co., appeared as claimant for the bark, alleging that he was owner on her register, but that the real owner was J. C. Merrill, of the city of San Francisco, State of California; and thereupon Mr. Walker puts in an answer to the libel, admitting that the 36 tins of opium were brought to this port by the said bark on her last trip, but averring that the same was shipped on board the bark by one or more Chinamen at San Francisco, who had artfully concealed the same in pieces of firewood, and shipped it as firewood only, without the knowledge of the owners, officers, or agents of said bark, that such firewood contained opium.
George W. Jenks, master of the bark, likewise filed an answer, by which he admits that opium was brought into the kingdom, but says that it was concealed in firewood which was brought as freight, and that the firewood, to the amount of about 20 cords, was shipped on the bark at San Francisco, by one or more Chinamen, one of whom came as a passenger to Honolulu on the same trip, but the name of the Chinaman he has forgotten; and that the Chinaman paid freight on the firewood after its arrival in Honolulu, and further avers that antil the discovery of the opium by the officers of the custom-house at Honolulu, he (the captain) had no suspicion that opium was concealed in the firewood.
The mode of concealing the opium in the firewood, as was shown by sample in court, was by splitting the stick, and morticing a place in the stick large enough to contain the tin and then placing the tin in the mortice and fastening the pieces together by nails and glue.
Mr. W. A. Markham, port-surveyor and custom-house guard, testified that the bark arrived on Sunday, the 2d day of this present month; that he went on board, asked the captain if he had any Chinese passengers; he said “Yes.” Asked him if the Chinese had any freight; he said “No;” which, it is argued, does not correspond with his averment in his answer, that a Chinese passenger aboard the ship brought it as freight. But the freight list is produced by which it appears that one Tongkee shipped 20 cords of firewood at $5.50 per cord, and Mr. Eldrich, a clerk at W. G. Irwin & Co.’s, testifies that a Chinaman, whom he had never seen before, called at their office, paid $125 for freight and wharfage; said his name was Tongkee, and demanded an order for the firewood, which he gave him. He asked him for a bill of lading; he answered he had none and showed no receipt; that the firewood was marked on the freight list, “No mark—no bill of lading,” and that he took the Chinaman’s word that he owned the wood and gave him the order.
And it is a significant fact, as testified to by the collector-general, that in the list of passengers handed him by the captain there is but one Chinese passenger, as the captain, in his testimony, likewise says, and his name was Afong, and not Tongkee; and further, that a person came to enter the wood at the custom-house, who, being questioned, said that he did not own it, and that it was not consigned to him, but he knew who did, and thereupon was told to go and bring the consignee or owner, and no person ever after came to enter the wood at the custom-house.
The firewood in question was stowed partly on deck, partly in the main-hatch, and the 36 sticks which contained the opium, which will be the subject of comment by and by, were used as dunnage for the cargo. The 20 cords of firewood were not included in the manifest.
The captain, who was on the stand, was asked “why the firewood was not put on the manifest?” answered, “that he had no record of it, because there was no bill of lading of it,” and being shown that it was on the freight list, answered, “that he did not know whether the freight list was opened on the voyage down or not,” but upon reflection he added, “I looked at it on the voyage down to see the amount of my freight”; and being reminded that the firewood was on deck and within sight of all persons, replied that that was so; that he could not tell why he did not observe it, but simply that he had forgotten it. He further testified that the Chinaman to whom he understood the wood belonged was not entered as a passenger at the office at all, and for that reason his name was not on the passenger list from the office of the owners of the vessel, but he found him out coming down the bay of San Francisco, about twenty minutes after he left the wharf; that he told him that if he did not pay, he would have to go back on the tug-boat, and thereupon the Chinaman paid $20 and came along, and that he, the captain, had no knowledge that this Chinaman was the man that owned the wood until after his arrival at Honolulu, when he came from Messrs. Irwin & Co.’s office and brought his receipted bill.
A. L. Ritchie testified that he is master of the bark D. C. Murray, but was mate of the Kalakaua, and in that capacity superintended her loading at San Francisco for her last trip down here; that the wood in question was brought by two Chinamen for 20 cords, more or less. [N. B.—It measures but 16 cords here in Honolulu.] That he did not measure it, but took the fellows’ word for it; that it was not all hauled down [Page 594] in one day; that he judged by his eye it was about 20 cords; that on the first day they hauled 7 loads, the second day 3 loads, the third day 2 loads, and so on; that he took the first lot and used it as dunnage; that he did not know the Chinaman; that he did not sign any receipt; that he told him he would give him his receipt when he got all his wood down; that he never came for it, and therefore he did not give it to him; that he did riot put it in the cargo-book because he did not sign any receipt.
How this witness could judge of the quantity of wood by the appearance, when, as he says, he took it on board as he wanted to use it to stow cargo with, and commenced to load it before it was all down, I am unable to say. He says he used it as dunnage at the direction of the captain and Mr. Merrill, the owner, and, being questioned, admits that at the last trip of the same vessel 100 tins of opium were found under the wood which had been used as dunnage, the same master, the same mate, and the same second mate being aboard the ship. Now taking it into consideration that every stick of the wood which contained the opium was passed down to be used as dunnage by the mate himself, and there was not one stick of it left on deck; add to that the fact that on the very last trip with same master and officers 100 tins of opium were seized in the fore-peak of the ship, under the wood, where no passenger could have access; and further considering that this is Mr. Ritchie’s own testimony and that the wood was not on the ship’s inward manifest nor on the cargo book, and no receipt given to any one for the wood, and the conclusion is irresistible that the opium in question was placed on board the vessel by the connivance at least of the mate of the ship, and was sought to be imported into this country for the account and profit of the witness Ritchie, and whomsoever might be associated with him, and I cannot but think with the connivance of the master. The seizure of the opium on the last trip of the bark, the fact that firewood is an unusual article of freight from San Francisco, and if this kind of firewood is worth $9 in San Francisco, and pays $5.50 freight, and nearly a dollar for primage and wharfage, making in all $15.50 for pine wood on the wharf at Honolulu before expenses of handling it at Honolulu commenced to accrue, it would appear to be so unprofitable an adventure on the face of it as to arouse the suspicions of any merchant owner of a vessel, mtore especially in view of the past experience of this vessel.
There are many circumstances which lead me to the conviction that Tongkee is a mythical person.
- First. It is hardly probable that any man would put on board of a vessel property so large in value as this opium is, and the wood combined, calling himself Tongkee at the office of the owners, and then go on board of the vessel surreptitiously, as a stowaway, and when discovered give his name to the captain as Afong. A person who should do so could hardly expect to get his property back when at Honolulu should he call himself Tongkee.
- Secondly. No Chinaman or any other man, though engaged in an illicit transaction, would pay a bill for 20 cords of wood, and pay freight and charges for the same, when there were only 16, unless it paid.
- Thirdly. Though the wood was begun to be put on the wharf on Monday, no person appeared with an order for the wood until Thursday, when the cargo was nearly out.
- Fourthly. The man who came to the custom-house was not the Chinese passenger who is said to have called himself Afong on the passage, and to have called himself Tongkee at the office of the owner at San Francisco, and at the office of the agents at Honolulu, and brought with him only a mere blank “20 cords of wood,” with no value carried out. Now any man that had the capital to embark in the adventure of over 100 pounds of opium, and the intelligence to conceal it in the manner in which this was concealed, would have been likely to have the intelligence to know that he would have to make his own entry at the custom-house, or send some one well known to the custom-house authorities, or, at least, some one who had knowledge enough to make the entry. I am, therefore, convinced that the Chinaman who called at Messrs. Irwin & Co.’s office, and paid the f 125 and got the order for the wood had the money given him for that purpose by the real owners of the opium.
It therefore appears to me certain that the opium in question was imported in the bark Kalakua, with the guilty knowledge of those in charge of the said vessel, and I do therefore adjudge that the said bark Kalakua, her tackle, apparel, and furniture, be condemned and the same is forfeited to the use of the Hawaiian Government as by the statute in such case made and provided; and. further, I do adjudge and decree that the 36 tins of opium found on board the said bark are likewise condemned and forfeited to the use of the Hawaiian Government.
Messrs. Castle and Hatch for libelant; S. B. Dole for claimants.