Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-23
OREGON SUPREME COURT DECISIONS
Full Text Published Courtesy r Turner Reporter Of the
Suprcmr Court.


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-
Der 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 defendants charter and to pay
for such damages of said schooner,
upon such settlement, paid to said
Simpson Lumber company the sum Of
$4,000.
Plaintiffs by their reply admit that
defendant did not have the use of the
tug for seven days, while 1t was un-
dergoing repair, and that the log of
the tug Sampson" showed that de ,
fendant failed to use said tug for six
days, emitting him to a rebate of
$50 per day. They admit the $4S1 .55
advanced for supplies and paid to the
crew, but deny the alleged damages
and deny liability for the damages.
Bean, ]. 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 Louis. ."
Upon the part of plaintiffs it is con-
tended that the contract entered into
between the parties constituted 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 is 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-
ton of the parties is the point to be
aimed at This should be determined
from the whole instrument. Primar-
lily, the presumption is against de-
mise, and that the ownership of a yes
sci 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 g
contract of affreightment Grimberl
V. Columbia Packers Assn, AZ Or
257; Z Am. Eng. Enc. of Law, I'd ed
167.
In Marcardier v. Chesapeake Ins
Co., u U. S. Is Cranch) 3S, a case
which is often quoted, as to owner.
Ship it is said: "A person may be
the owner for the voyage, who, by 6
contract with the general owner, hires
the ship for the voyage, and has the
exclusive possession, command anC
navigation of the ship. -" 8" But wher,
the general owner retains the posses
sion, command and navigation of thu
ship, and contracts to carry cargo
of freight, for the voyage, the charter
party Is considered as a mere af
, freightment, sounding in covenant
and the freighter is not clothed will
the character or legal responsible!
of ownership"
In Leary v, U. S. IA Wall. 607, tn,
court in discussing a similar question
used the following language;
There is no doubt that under SOM
forms Of a charter party the char
terer becomes the owner of the vesse
chartered for the voyage or service
stipulated and consequently becomes
subject to the duties and responsible
tiles of ownership. Whether in an,
particular case such result follow
must depend upon the terms of tn,
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 b,
treated is, in all cases one of con
struction. If the charter party let thu
entire vessel to the charterer with
transfer TO him of its command AM
possession and consequent contro
over its navigation, he will general,
be considered as owner for the yoy
age or service stipulated But OF
the other hand, If the charter part,
let only the use of the vessel, tn
owner at the same time retaining It
command and possession, and contro
over its navigation, the charterer 4
regarded as a mere contractor for
designated service, and the duties ant
responsibilities of the owner are no
changed All the cases agree tha
entire command and possession of tn
vessel, and consequent control owe
its navigation, must be SURRENDERED
to the charterer before he can be hell
as special owner for the voyage o
other service mentioned The reten
tion by the general owner of sucl
command possession, and control 1
incompatible with the existence at tn
same time of such special ownership
in the charterer" See also Ross y
Charleston, AZ S. c. All, 20 S. e. 28l
In the case Of Bissel V. Torrey. g.
Barb. 1888, the plaintiff being tn
owner of a canal boat employed tn
defendants to tow the same from AL
bany to New York. The boat useu
by defendants in towing the same, dl,
not belong to them, but TO a steam
boat company, and was chartered b.
the defendants for the season. It wa
agreed that defendants were to pa
so much for the round trip for tn
use thereof, and the company were Il
pay the expenses Of running the boat
and we're to hire and pay the men en-
gagged thereon, and the defendant
were to receive the earnings OF tn
boat after paying expenses. The cana
boat after being towed to New York
was sunk in the harbor through tn