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

In clause l Of the contract in ques-
ton, the words chartered" and "let"
are indicative OF a demise, but this
formal part OF the contract is not
controlling: Grimberg V. Columbia
Packers Assn. supra; Adams v. Ho-
meyer, 45 Mo. 545. Ii was stipulated
in this clause that the vessel was to
perform such duties In accordance
with the terms OF the agreement as
might be required OF her by the char
terer. In effect ii was covenauted
that the defendant should direct where
the vessel was to go, and what she
was to do, but 1t 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 of navigation being left To
the owner, who retained command and
possession of the vessel through the
captain and crew.
Clause provided that all expenses
Of fuel, supplies, wages OF the crew
and other expenses were to be borne
by the plaintiffs who we're 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 a fair
compensation, or II 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 evil
danna In tho caca a. aIgn annaars kk,k
the tug Sampson was under the di-
rect control and management Of the
captain, who, from the terms OF the
agreement, as we'll as from the evi-
dence in the case, we think was the
agent of the owners. and responsible
to them, and that the charter party
in question did not effect a demise OF
the tug, but was a mere contract of
affreightment: Grimberg " Columbia
Packers Assn, AZ Or. 257' Multnomah
County V. Willamette Towing COM
pany. 40 Or, 2O4; The Santona, 152
Fed Rep. Sic; Marcardier v. Chesa-
peake Insurance Co., supra; Adams v.
Homeyer, 45 Mo. 545; Ross v. Charles
ton NJ, & S. Trans Co.. supra.
BY clause Z of the agreement, the
parties stipulated as to risks or dam
ages to tows, and 1t is contended on
the part of plaintiffs that 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 ia
such damages, even If that could be
done Wells V. Great Northern Ry
Co., ia Pac Rep. 80.
In the case of the Steamer SYRIA
cuse, IL Wall 167, the court said
ut is unnecessary to consider the ev.
idence relating to the alleged contract
of towage, because, If 1t be true, as
the appellant says, that, by special
agreement, the canal boat was belne
towed at her own risk, nevertheless
the steamer is liable, If, through th'
negligence of those In charge Of her
the canal boat has suffered loss AL.
though the policy of the law has moi
imposed on the towing boat the obli.
cation resting on common carrier
1t does require on the part of the per
sons engaged in her management, thu
exercise of reasonable care, caution
and maritime skill. and II these arr
/, neglected, and disaster occurs, tn,
towing boat must be visited with tn,
, consequences.
, Hence as to the responsibility fol
the damages to the schooner Louis
in the harbor Of San Francisco anC
and at Knappton, the question Is
first. were the injuries caused by tn,
: negligence of the plaintiffs? If so
what amount OF damage was $,
caused? And second, what amoun
was defendant compelled to pay OIL
account Of such damages? In othe
words, II the plaintiffs through thei
agents or otherwise, were not negll
gent in the management Of the "Samp
son" they are not liable for such in
juries. The amount paid by defendan
is not the only controlling element
The objection of plaintiffs that the!
have good defense to the claim .
damages to the Louis" Is satisfied
by the fact that they can make sucl
defense in this action And If defen