Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-23

Defendant requested the court to
instruct the jury in substance; that,
If, for any Of the reasons mentioned,
the steam tug Sampson" was not at
the disposal of defendant, ION any
day, days or parts of days" and de-
fendant lost the use of the tug, then
defendant was entitled to a deduction
of 5000 per "a hours for so much of
said time as the tug was not at his
disposal.
The plaintiffs were responsible for
reasonable nautical skill in the man
agement of the Sampson" and
there can be no doubt that If plain
tiffs failed to perform any of their
covenants in the charter party, they
would be responsible to the defen-
dant in damages, which are alleged.
as to portion of the time lost, to
be the amount of the charter hire.
The contract does not by its terms
contemplate any breach of the cove
nants on the part of plaintiffs, and
the third clause of the charter party
does not in our opinion provide a
rule for computing the time of such
loss of service, but only extends to
the matter of rebate of $50 per day.
1t is incumbent upon the plaintiffs to
prove the allegation of their COM
plant, in regard to the time of SER
vice of the tug, in so far as the same
Is denied. We think that the sub
stance Of the instruction upon this
point asked by defendant should have
been given.
Under clause of the charter par
ty defendant claims to be entitled to
rebate Of $50 per day for any full
period of "a hours, when he had no
active use for the tug. BY this
clause of the agreement the parties
stipulated as to when rebate should
be allowed which they had a perfect
right to do, and how the idle time
should be determined making the
log OF the tug the arbiter, as it were.
in the matter And we think when
the log of the tug showed the vessel
mad not been in use, during any "a
consecutive hours, on account of de-
lendant having no active use for her,
then he should be entitled to a re-
bate of $50. The question is not what
the rebate ought to be, but what the
contract was.
The allegation of plaintiffs as to
the condition of the tug was denied
| by defendant The court properly in
structed the jury in this regard. as
| follows; Il instruct you that the bur-
den of proving that the Sampson was
tight staunch and strong and in
every way fitted and provided for use
as vessel engaged in the business
OF towing. lumber at the time this
agreement was made, is upon the
plaintiffs.
! Note the case of The Edwin |. Nor
rison, 153 T. S. 1897 S. IA Sup. Ct
Rep, S2S, in which the libel set up
the damaged condition of the goods
and that the vessel upon leaving
port was not tight, staunch. strong
and every way fitted for said VOYAGE
as agreed The answer alleged that
the vessel encountered rough and
tempestuous weather and was dam
aged by the perils of the seas which
are excepted in contracts of affreight-
ment, In the opinion. Mr. Chief Jus
tice Fuller used the following Ian
guage; "Perils of the sea were ex-
cepted by the charter party. but the
burden Of proof was on the respon-
dents to show that the vessel was in
good condition, and suitable for the
voyage, at its inception, and the ex-
ception did not eXonerate them from
Inability for loss or damage from
one OF those perils to which their
negligence, or that Of their servants,
contributed"
1t is assigned as error that the
other instructions given by the court
are in conflict with the above instruc-
tion, but we do not deem that ii
would be Of any aid. upon a re-trial
OF the case, to note the instructions