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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Nov. 23, 1911)
DHL CAPITAL JOCPAAL. oALESt, OREGON, THIHSDAT. NOVEMBER 23, 1911. PAGE THREE 111 1 ALCOHOL 3 PER nrT AVegetaWePreparafionlorAs. similatiirttlieFbnf.iniiRpdido ting (lie Stomachs andBowbof Ptomo(esDiestionX3wiW ness and ResLCantiins woe Opiuiu.Morphine norMinaaL! WOT NARCOTIC. PimpkaSnd' JbcSama JkMltUts- Aperfect Remedy for Oansflja-j tion sour siuiuaui.uuii hum Worms A-onvalsKras jewnsl ness mdLoss or Sleep. JV Sural Signanut of new York. east Tor Infanta and Children. The Kind You Have Always Bcught Bears the latere of Signature AM AW IF In Use For Over Thirty Years : 1 a.r- I .J Exact Copy of Wrapper, mm Thi oinraua onnn, mkw tonr in, s A E E M ure to please the lovers of a wholesome beverage, Iways an . invigorating, pure and delightful drink, ends strength to the weak and weaned physique, fleets a soothing cure for the nervous ills of life. akes life more pleasant and cheers the heavy heart. B E E R rings good fellowship to ail who partake in moderation. nlivens the spirit of the down cast and disheartened, ndows existence with hopes and aspirations estores man' to fulness ot strength and activity, OREGON SUPREME COURT DECISIONS Fill Txt Piblhhfa b) CoirUiy f K A. Turner, Reporter ( Us Soprc un l uurL MM - Pianos and Organs I at Your Own Price. We also handle the celebrated EDISON PHONOGRAPH with full list of Records. We sell on easy terms and give you the worth of your money. Old Pianos and Organs taken in exchange. Call and see us before you buy. CHERRINGTON & PETERS 247 N. Commercial Street. Salem, Oregon Resident Piano Tuner, best in the State. iiiiiii You Realize Comfort In your Collars and Shirts when you in ttm habit of sending them to us to be Laundered- We "do them up" propertly. carefully, cleanly, and with perfect satisfaction 10 who have to -wear them, Let us have your Laundry work for a week or two and you -will be so satisfied with the results that you will always send It here afterwards. 8 ALEX STEAM IAU5DBT 1M-164 St liberty Strwl Adams and Mills t, Carey. Mallno. muh County. Decided November 7. 1911. C. P. Adams and A. L. Mills, respon dents, t. F. V. Carey, doing business under the firm name and style of "F. W. Carey and Company," appellant. Appeal from the circuit cburt for Multnomah county. The Honorable w . N. Gatens, judge. Argued and sub mitted October 10, 1911. A. B. Win free (Teal. Minor & Wlnfree on brief) for respondents. C. H. Carey and Omar C. Spencer (Carey & Keer on brief) for appellant. Bean, J. Re versed. This Is an action to recover $4,500 balance due for services of the tug "Sampson." Upon the trial there was a verdict and Judgment of J3.36S.45 for plaintiffs, and defendant appeals. The agreement under which the tug "Sampson" performed towing for de fendant is set forth In the complaint as follows: "This charter party, made and con cluded upon In Portland, Oregon, this 2th day of September, 1906, by and between C. F. Adams and A. L. Mills, parties of the first part, owners of the tug Sampson of Portland, Oregon, now lying In the harbor of Portland, and F. V. Carey & Company, of San Francisco, California, parties of the second part, wltnesseth: "1. The said vessel Is chartered and let by said parties of the first part to said parties of the second part for a period of two weeks beginning at twelve thirty o'clock a. m. on the morning of the 2d day of October, 1906, for use in towing to and from the Columbia River. Coos Bay and San Francisco, and Is to proceed at once to Knappton, Washington, to be ready there to tow a vessel to San Fran cisco, California, and thereafter Is to perform sue hduties in accordance with the terms of this agreement as may be required of her by the said charterers. "2. The parties of the second part agree to pay and the parties of the first part agree to receive for the use of said vessel the sum of two hun dred dollars ($200.00) per day during said period; provided, however, that if during Baid period said parties of the second part have no active use for said vessel and do not make use of hor, a rebate of fifty dollars ($r,0.00) per day shall be allowed upon said price during the time when she .lies idle, no such rebate being allowed. however, for less than a full day, the idle time to be determined by the log of the tug; one thousand dollars ($1000.00) on this charter party to be paid on signing this agreement and the balance on the expiration of the time. "3. That said vessel shall be tight, staunch, strong and In every way fit ted and provided for use as a vessel engaged In the ' business of towing lumber and other ships from and to ports on the Pacific coast before mentioned. "4. It Is agreed that said vessel shall at all times during the period of this charter be subject to the direc tions of the parties of the second part and shall go and come between the ports and places before mentioned, and shall tow such vessels as shall be Indicated by said second Dartv. "5. At the end and within said pe riod of this charter, the said vessel shall be returned to Portland, Oregon. "6. All expenses of fuel, supplies, wages of the crew, and other expenses shall be borne by the parties of the first part and the said parties of the first part shall keep said vessel at all times fully furnished and In good condition to perform the duties as aforesaid. "7. All risks or damages to tows, cargo, or docks, marine or otherwise, not arising through the negligence of the owners or not covered by insur ance on the tug chartered and for which said first parties of said tug would be liable, are hereby expressly assumed that (by) the second parties, and the first parties and the said tug are hereby released and discharged from any and all claims for liability arising or to arise on account there of, and the second parties agree to hold the said first parties and the said tug harmless therefrom; pro vided that for any accident to the tug the second parties shall not be liable." The agreement was signed and sealed on the 29th day of September, 1906. Plaintiffs allege that pursuant thereto, on the 2d day of October, 1906, plaintiffs delivered to defendanf the tug "Sampson" In the required condition, and in all "tilings performed suh agreement on their part. Defen dant returned the tug December 11, 19H6. The defendant admits the making of the agreement, and by way of counterclaim pleads: 1. That he lost the use of the ves sel for twenty-five days, owing to Im proper management, and the Mjor condition of the tug. 2. That he advanced, for the pay ment of expenses and wages, the amount of $131.5.',. 3. That, for the period of eleven days, he had no use for the tug, and as provided by the agreement, was entitM to a rebate or $.',.',0.00. 4. That on October. 2d. the tug did not proceed to Knappton, Washington, where It was agreed she should go, and that he was damaged to the ex tent of $300.00. demurrage on the tow "Harkentine Northwest" then at Knappton. 5. That by the carelessness and neg ligence of the plaintiffs, the tug was made to collide with the schooner "Louis" at Knappton, Washington, on November 14th, and again on Novem ber 22d, 1906, In the harbor of San Francisco, while the tug "Sampson" was towing the schooner "Iuis," the said tug was, by the negligence of the plaintiffs, so carelessly operated that it again fouled and collided with the "Louis," and swung said tow against the ' Clan Galbralth." an English ves sel then lying at anchor in the har bor. That the "Louis at mat. lime was. and now is owned and operated hv the Simoson Lumber company, a did pay cut on account thereof for repa rs to the said vessels. $6769.79, and threatened to and would have li beled the tug "Sampson" for that amount and caused her arrest and sale, thereby depriving defendant of the use of said vessel for a long time to his great damage. In order to prevent the same and protect himself on his liability to the Simpson Lum ber company, he was compelled to and did, effect a compromise and set tlement with the aforesaid company, In behalf of the tug "Sampson" and Its owners, and to protect the tug and the defendant's charter and to pay for such damages of said schooner, upon such settlement, paid to said Simpson Lumber company the sum of $2100.00. Plaintiffs by their reply admit that defendant did not have the use ot the tug for seven days, while It was un dergoing repair, and that the log of the tug "Sampson;1 showed that de fendant failed to use said tug for six days, entitling him to a rebate of $50 per day. They admit the $431.55 advanced for supplies and paid to the crew, but deny the alleged damages and deny liability for the damages. Bean. J. Upon the trial, the court sustained the objection of plaintiffs to the evidence offered by defendant as to the damages paid by defendant to the owners of the schooner "(.ouls." I'pon the part of plaintiffs It Is con tended that the contract entered Into between the parties constituted a de mise of the tug "Sampson" to defen dant Carey, and made him the owner pro hac vice. On the other hand the defendant contends that the contract was one of towage or affreightment, and therefore the court erred in re jecting the evidence of the claim of defendant for damages caused by the negligence of plaintiffs and their em ployees. This la the main question in the case, and depends upon the con struction of the charter party. There is nothing peculiar or technical In the construction of this kind of contracts. As In all other agreements the Inten tion of the parties is the point to be aimed at. This should be determined from the whole Instrument. Primar ily, the presumption Is against a de mise, and that the ownership of a ves sel during the period of the charter party continues In the general owner: and unless the intention to transfer the possession and ownership to the charterer Is unequivocally manifested by the contract, the charter party will not be treated as a lease or demise of the ship, but will be treated as a contract of affreightment: Grlmberg v. Columbia Packers Assn., 47 Or, 257; 7 Am. Kng. Knc. of Law, 2d ed, 167. In Marcardier v. Chesapeake Ins. Co., 12 U. S. (8 Cranch) 38, a case which Is often quoted, as to owner ship, it Is said: "A person may be the owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. But where the general owner retains the posses sion, command and navigation of the ship, and contracts to carry a cargo or rnegnt, tor the voyage, the charter party Is considered as a mere af freightment, sounding In covenant, and the freighter Is not clothed with the character or legal responsibility or ownership. In Leary v. U. S. 14 Wall. 607, the court In discussing a similar question used the following language: "There is no doubt that under somo forms of a charter party the char terer becomes the owner of the vessel chartered for the voyage or service stipulated, and consequently becomes subject to the duties and responsibil ities of ownership. Whether In any particular case Bitch result follows must depend upon the terms of the charter party considered In connec tion with the nature of the service rendered. The question as to the char acter In which the charterer Is to be treated Is, In all cases one of con structlon. If the charter party let the entire vessel to the charterer with a transfer to him of Its command and possession and consequent control over its navigation, he will generally be considered as owner for the voy age or service stipulated. Hut, on the other band, If the charter party let only the use of the vessel, the owner at the same time retaining its command and possession, and control over H.s navigation, the charterer Is regarded as a mere contractor for a designated service, and the duties and resiKinsibllltles of the owner are not changed. All the cases agree that entire command and possession of the vessel, and consequent control over Its navigation, must be surrendered to the charterer before he can be held as special owner for the voyage or other service mentioned. The reten tion by the general owner of such command possession, and oontrol Is Incompatible with the existence at the same time of such special ownership In the charterer." See also Ross v. Charleston. 42 S. C. 477, 20 S. K. 2S5. In the case of ItlHsel v. Torrey, 65 Harb. 1XS, the plaintiff being the owner of a canal boat employed the defendants to tow the same from Al bany to New York. The boat used by defendants In towing the same, did not belong to them, but to a steam boat company, and was chartered by the defendants for the season. It was agreed that defendants were to pay so much for the round trip for the use thereof, and the company were to pay the expenses of running the boat, and were to hire and pay the men en gaged thereon, and the defendants were to receive the earnings of the boat after paying expenses. The canal boat after being towed to New York, was sunk In the harbor through the negligence of the hands managing towboaL It was held that the defen dants were not liable to the plaintiff for the consequences of such negli gence, and that for the negligence of those employed on the towing boat, the owners alone were liable. "It appears to me," said Judge. Hough, In The Kantona, 153 Fed. Rep. 18, "that the best test of the appll In clause 1 of the contract In ques tion, the words "chartered" and "let" are Indicative of a demise, but this formal part ot the contract is not controlling: Grlmberg t. Columbia Packers' Assn., supra; Adams v. Ho meyer, 45 Mo. 545. It was stipulated In this clause that the vessel was to perform such duties la accordance with the terms ot the agreement as might be required of her by the char terer. In effect It was covenanted that the defendant should direct where the vessel was to go, and what she was to do, but it does not appear that the defendant was authorized to direct how the service should be performed. or how the tug should be managed, the details or navigation being left to the owner, who retained command and possession ot the vessel through the captain and crew. Clause 6 provided that all expenses of fuel, supplies, wages of the crew and other expenses were to be borne by the plaintiffs who were to keep the vessel fully furnished, and In good condition to perform the required du ties. They were at perfect liberty to employ thoroughly skilled and com petent navigators for the tug at fair compensation, or If they saw fit to take such a chance, they might em ploy less skilled and competent of ficers and crew, for smaller wages, to navigate the tug. From the evi dence in the case, It also appears that the tug "Sampson" was under the di rect control and management of the captain, who, from the terms of the agreement, as well as from the evi dence in the case, we think was the agent of the owners, and responsible to them, and that the chaner party in question did not effect a demise of the tug, but was a mere contract of affreightment: Grlmberg v. Columbia Packers' Assn. 47 Or. 257 Multnomah County v. Willamette Towing com pany, 49 Or. 204; The Santona, 152 Fed. Rep. 516; Marcardier v. Chesa peake Insurance Co., supra; Adams v. Homeyer, 4a Mo. 54:i; Ross v. Charles ton M. & S. Trans. Co., supra. By clause 7 of the agreement, the parties stipulated as to risks or dam ages to tows, and It is contended on the part ot plaintiffs thnt the defendant Carey thereby agreed to hold the plaintiffs harmless from all risks or damages to tows, cargo or docks, ma rine or otherwise. A careful exam ination of this part of the contract, however, clearly shows that the risks or damages to tows, cargo or docks assumed by the defendant do not ex tend to those arising through the neg ligence of the owners. No attempt was made to stipulate in regard to such damages, even if that could be done: Wells v. Great Northern Ry. Co., 114 Pac. Rep. 92. In the case of the Steamer Syra cuse, 12 Wall. 167, the court said: "It Is unnecessary to consider the ev idence relntlng to the alleged contract of towage, because, If it be true, as the appellant says, thnt, by speclnl agreement, the canal boat was being towed at her own risk, nevertheless the steamer is liable. If, through tkt negligence of those In charge of her, the canal boat has suffered loss. Al though the policy of the law has not imposed on the towing boat the obli gation resting on a common carrier, it does require on the part of the per sons engaged In her management, the exercise of reasonable care, caution and maritime skill, and If these are neglected, and disaster occurs, the towing boat must be visited with the consequences. Hence as to the responsibility for the damnges to the schooner "Louis" In the harbor of San Francisco and nnd at Knappton, the question Is: first, were the Injuries caused by the negligence of the plaintiffs? If so, what amount of damage was so caused? And second, what amount was defendant compelled to pay on account of such damages? In other words, If the plaintiffs through their agents or otherwise, were not negli gent In the management of the "Samp son," they are not liable for such In juries. The amount paid by defendant Is not the only controlling element. The objection of plnintlffs that they have a good defense to the claim f damages .to the "Louis Is satisfied by tlie fact that they can mnko such defense In this action. And If defen- ( Continued on Page 6.) corporation, but was under his care j cablllty of the rule to any given state and charge, ana ne was renoousmie for her safe towage and delivery at her destination. Both the schooner lx)tiis" and the "Clan Galbralth" were damaged, and the Simpson Lum ber company was compelled to and of facts is to Inquire whose were the agents who wrought the injury out of which the controversy In hand arose. 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