O'BOYLE v. United States, 139.
| Decision Date | 16 February 1931 |
| Docket Number | No. 139.,139. |
| Citation | 47 F.2d 585 |
| Parties | O'BOYLE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and Alfred C. McKenzie, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This action was brought to recover damages sustained by Anthony O'Boyle, owner of the coal boat Hattie, while under a demise charter to the defendant. The charter party was made to the United States through the agency of the War Department, and provided: "That the boat will be returned * * * in the same condition as received except as deteriorated by ordinary wear and tear, the act of God, or by any person or agency for whose acts and negligence the United States is not responsible. * * *" The barge was delivered to the defendant on April 11, 1920.
The plaintiff introduced evidence to the effect that the Hattie had been in dry dock in February, 1920, and that from February 11th to 28th she was chartered to Cullen Transportation Company, from March 3d to 23d, she was chartered to Craig Transportation Company, and from March 23d to April 6th, she was chartered to Low Transportation Company. Plaintiff's testimony also indicated that between February 11th and the time when she was chartered to the government the Hattie had been used for carrying bituminous and anthracite coal, with a bargee in charge, and that no report had been made to the owner of any leakage or unseaworthiness.
When the barge was chartered to the government, she lay at Arlington, N. J. On June 15, 1920, she was towed to Constable Hook, where she took on 500 tons of coal on June 16th. The owner placed a bargee named O'Brien on her on May 29, 1920. He testified that on the morning of June 16th, when it was proposed to load the barge with coal, he called up the owner, who advised him that she might be loaded with 500 tons. After she took on a load of that amount, she began to leak. The bargee used the gasoline pump with which the boat was furnished for about half an hour, but found the water gaining, and telephoned to the government fuel inspector at Constable Hook for a tug, which came equipped with a three-inch siphon. This was put into the barge and reduced the water in the hold from 3½ to 1½ feet. This government tug was assisted by another tug sent, at the request of the bargee, by the defendant. The first tug attached a hawser to the barge to tow her to her dock at Hoboken and turned over the siphon to the second tug, which had the barge alongside and used the siphon to pump the water from her hold as she was towed toward Pier 5, Hoboken, a distance of about 4½ miles.
At the time the fuel inspector got the call for a tug, at the request of the bargee, he telephoned the owner that the barge was leaking, who sent one Murphy from his office to look into conditions. Murphy boarded the barge and accompanied her on her journey. Both the bargee and Murphy thought that the siphon would keep the water down and neither...
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