Hastorf v. F.R. Long-W.G. Broadhurst Co.

• Decision Date: 16 January 1917
• Docket Number: 116.
• Parties: HASTORF v. F.R. LONG-W.G. BROADHURST CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

239 F. 852

HASTORF v. F.R. LONG-W.G. BROADHURST CO. et al.

No. 116.

United States Court of Appeals, Second Circuit.

January 16, 1917

Foley &amp Martin, of New York City (William J. Martin and George V. A McCloskey, both of New York City, of counsel), for appellant.

Joseph D. Lee and Peter S. Carter, both of New York City, for appellee F.R. Long-W.G. Broadhurst Co.

Nolan Brothers, of New York City, for appellee Fox.

Before COXE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

April 16, 1912, Hastorf, the libelant, owner of the dumper scow Montreal, chartered her, including a man to take care of her to the Long-Broadhurst Company, for an indefinite time at $20 a day. The contract was entirely oral. Such employment of boats without motive power of their own, which go, including a man generally called the master, into the absolute control of the charterer, have in this harbor, at least since the decision of the late Judge Addison Brown in 1892 in The Daniel Burns (D.C.) 52 F. 159, been regarded as demises; the charterer becoming the owner pro hac vice. Monk v Cornell Steamboat Co., 198 F. 472, 117 C.C.A. 232. The District Judge thought that our decision in North Atlantic Dredging Co. v. McAllister Steamboat Co., 202 F. 181, 120 C.C.A. 395, indicated that such a charter as the one now under consideration was not a demise. In that case the substantial question involved was whether the daily hire of a pump dredge was to be paid only while the dredge was in operation, or whether it also covered the time occupied in getting her to the place of her work and back to her original berth. In other words, was the contract one for mere services while working, or was it a charter from the time the dredge left her original berth to the time she returned to it. We held it to be a charter. As to another very subordinate claim, we held the charter not to be a demise, without going at large into the facts, because the dredge, with her crew of 18 men, remained in the possession and control of the owner. There was no intention whatever to depart from or qualify previous decisions.

The Long-Broadhurst Company employed the scow in carrying the debris of an old pier which they were tearing down at Hackensack, N.J., to sea. She had six pockets, and No. 5 got clogged, so that it would not dump. Thereupon it was arranged that the libelant should take the scow May 2d, load the other five pockets, take her to sea, and try to clear the stuck pocket. This he did not succeed in doing, and May 6th the Long-Broadhurst Company took possession again and delivered the scow to one Fox, who was engaged in excavating in Pelham Bay. Fox loaded her with the excavated material to be carried to sea. While there the scow got aground, suffering some damage, which was considerably increased by Fox's use of dynamite in blasting.

It will thus be seen damage was done to the No. 5 pocket while the scow was in the exclusive possession of the Long-Broadhurst Company, and to her bottom while she was in the exclusive possession of Fox, to...