Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-23
Adams and Mills ', Carey, MuImO.
nah Comfy,

dents, Y, F. W. Carey, doing business
under the firm name and STYLE of Fl
W. Carey and Company" appellant.
appeal from the circuit cburt for
Multnomah county. The Honorable
W. n. Gatens, Judge. Argued and sub
mltted October 10, 1911. A. B. Win
tree CTeal, Minor & Winfree on brieO
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 $4,000
balance due for services of the tug
Sampson. Upon the trial there was
a verdict and judgment Of SS,S6S.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
18th 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. w. Carey & Company, of San
Francisco, California, parties of the
second part, witnesseth:
l. The said vessel Is chartered and
let by said parties of the first part
to said parties Of the second part for
period Of two weeks beginning at
twelve thirty o'clock a. m. on the
morning Of the I'd 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 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.
-. 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 (S2O0OO) per day during
said PERIOD provided, however, that
If during said period said parties OF
the second part have no active use for
said vessel and do not make use OF
her, a rebate of fifty dollars (S5O.OO)
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 lop
of the tug; one thousand dollars
(S1000OO) on this charter party to be
paid on signing this agreement ant
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 vesse
engaged in the business of towns
lumber and other ships from and tC
ports on the Pacific coast before
mentioned.
a. 1t is agreed that said vesse
shall at all times during the periot
of this charter be subject to the direc
tions of the parties Of the second par
and shall go and come between tn,
ports and places before mentioned
and shall tow such vessels as shal
be Indicated by said second party.
.. AT the end and within said pc
rtod OF this charter, the said vesse
shall be returned to Portland, Oregon
IS. All expenses of fuel, supplies
wages of the crew, and other expenses
shall be borne by the parties of tn,
first part and the said parties of thu
first part shall keep said vessel a
all times fully furnished and in gooc
condition to perform the duties a.
aforesaid
~, All risks or damages to tows
cargo, or docks, marine or otherwise
not arising through the negligence o
the owners or not covered by insur
ance on the tug chartered and fo
which said first parties of said tuI
would be liable, are hereby expressl,
assumed that (by) the second parties
and the first parties and the said tut
are hereby released and discharged
from any and all claims for liabilit,
arising or to arise on account there
of, and the second parties agree Il
hold the said first parties and thu
said tug harmless therefrom; pro
vided that for any accident to the tuj
the second parties shall not be liable
| The agreement was signed ant
sealed on the 29th day of September
1906.
Plaintiffs allege that pursuan
thereto, on the I'd day of October
1906, plaintiffs delivered to defendan
the tug Sampson" in the required
condition, and in all things performed
sub agreement on their part. Defen
dant returned the tug December II
1906
The defendant admits the makinj
of the agreement, and by way 0
counterclaim pleads
/. That he lost the use of the yes
sci for twenty-five days, owing to i'm
proper management, and the poo
condition of the tug.
2. That he advanced, for the pay
ment of expenses and wages, tn
amount of $43155
g. That, for the period of clever
days, he had no use for the tug, AM
as provided by the agreement, wa
; entitled to a rebate Of S5j000
A. That on October I'd. the tug dit
not proceed to Knappton, Washington
where it was agreed she should 90
and that he was damaged to the ex
; tent Of 100000, demurrage on the toy
"Barkentine Northwest then a
. KnapptOn.
j. That by the carelessness and neg
ligence Of the plaintiffs, the tug wa
, made to collide with the schoOne
Louis" at Knappton, Washington, ol
November 14th, and again on Noyem
Der 22d, 1906, in the harbor Of Sal
Francisco, while the tug Sampson
/ ....,gr,r ~. gnbprnar uT rftfe % N