New England Foundation Co. v. Rugo Const. Co., 1037.
| Decision Date | 23 April 1945 |
| Docket Number | No. 1037.,1037. |
| Citation | 1945 AMC 513,60 F. Supp. 143 |
| Parties | NEW ENGLAND FOUNDATION CO., Inc., v. RUGO CONST. CO., Inc. |
| Court | U.S. District Court — District of Massachusetts |
Bingham, Dana & Gould and Albert T. Gould, all of Boston, Mass., for libellant.
Charles A. McCarron and Thomas H. Walsh, both of Boston, Mass., for respondent.
This is a libel in admiralty by the New England Foundation Company, Inc., owner of Lighter No. 1, against the Rugo Construction Company to recover for damage sustained by the lighter while under charter to the respondent.
On July 5, 1941, the respondent, Rugo Construction Company, entered into a contract with the Navy Department, Bureau of Yards and Docks, to perform certain construction work at the Naval Air Station, Squantum, Massachusetts.
On August 28, 1941, the libellant demise chartered Lighter No. 1 to the respondent on the following terms: "One derrick lighter, $800 a month rental, no fuel, transportation or personnel". In these negotiations the Rugo Construction Company acted through William H. Curley, a civilian employee of the Navy Department.
On November 5, 1941, the lighter was again demise chartered to the respondent. The terms of this contract of hire were the same terms as those which had governed the August charter except that the hiring was to be by the month with no "split months". The lighter was delivered to the respondent on November 5, 1941, by turning her over to a tug of the Hall Tug & Barge Corporation which had been dispatched on behalf of the respondent to take the lighter to Squantum. The lighter was then used by the respondent in pulling piles at Squantum.
On December 3, 1941, Curley ordered the lighter tied up outside of another boat in the crash boat slip. I find that this was a clear berth. On that same evening the lighter was sunk and on the bottom at the berth in Squantum.
I find that on November 5, 1941, when Lighter No. 1 was chartered to the respondent, she was seaworthy, in good condition, and properly fitted for the work in which she was expected to engage. There is some evidence that the hull was "leaking slightly" on September 2, 1941, but this did not make her unseaworthy. The lighter was used almost continuously by the respondent until the day she sank. Furthermore, the respondent re-chartered the lighter in November, 1941, without making any representations of unsound condition to the libellant. Although a showing of continuous use by the charterer does not establish seaworthiness at the time of the charter, it does serve to buttress other testimony on this issue. I further find that when Lighter No. 1 was sunk she was in the possession and control of the respondent during the charter period. No evidence of negligence on the part of the...
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