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CENTURY INDEM. CO. v. NEW YORK TANK BARGE CO.

December 4, 1933

CENTURY INDEMNITY CO.
v.
NEW YORK TANK BARGE CO.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

In this suit the libelant as assignee of Gulf Refining Company seeks to recover from the respondent the sum of $3,500, alleged to be damages arising out of an agreement of charter.

On or about the 7th day of October, 1929, a libel was filed in the United States District Court for the Southern District of New York, by Gulf Refining Company, assignor of the libelant herein, against the present respondent, New York Tank Barge Company, on contract, and the tug H. G. Tisdale, on tort, to recover damages alleged to have been caused by the respondents in that action, for injury to the Gulf Refining Company's barge Cayuga.

 The present libelant, the Century Indemnity Company, became the surety in that action upon a stipulation for value in the sum of $3,500, to release the libel which the Gulf Refining Company had filed against the tug H. G. Tisdale.

 Negotiations for settlement were had, which resulted in a settlement with the present libelant, the Century Indemnity Company, as such stipulator for value, paying to the Gulf Refining Company, the libelant therein, the sum of $2,400.

 Thereafter and on the 22d day of November, 1932, the aforesaid action brought by the Gulf Refining Company against New York Tank Barge Company and the tug H. G. Tisdale was discontinued upon the consent of the libelant, the Gulf Refining Company, and the then respondent New York Tank Barge Company; the consent of New York Tank Barge Company, respondent in that action and this action, by Foley & Martin its proctors, being given on the understanding that a release to it be given by Gulf Refining Company.

 A release was subsequently executed by the Gulf Refining Company to the Century Indemnity Company, New York Tank Barge Company, Spentonbush Fuel Company, and the tug H. G. Tisdale, and delivered to the libelant herein, the Century Indemnity Company.

 The libelant herein, the Century Indemnity Company, obtained from the libelant in the former action, Gulf Refining Company, an assignment of all its right, title, and interest in and to any claim of Gulf Refining Company against New York Tank Barge Company and the steam tug H. G. Tisdale, for damages sustained by its barge Cayuga while in tow of the tug H. G. Tisdale, on or about October 3, 4, and 5, 1927, under Bond No. S-1928, or otherwise.

 Bond No. S-1928 was the stipulation for value in the action brought by Gulf Refining Company against New York Tank Barge Company and the tug H. G. Tisdale, in the Southern District as aforesaid.

 On October 1, 1927, the Gulf Refining Company chartered to the respondent, New York Tank Barge Company, the barge Cayuga, 5,000 barrels' capacity, for a delivery of 28-gravity oil; time to commence when barge is taken away from its dock on Monday next and until she is returned thereto.

 By the terms of said charter, in addition to other provisions, the barge was to be returned to Gulf Refining Company in the same good condition as received by New York Tank Barge Company, usual wear and tear on appurtenances and gear excepted, and the rate for the hire was to be $125 per day, exclusive of towing, which was to be for the account of New York Tank Barge Company and at its risk, and fractions of days to count as half days.

 The barge Cayuga was returned in a damaged condition.

 On October 3, 1927, the barge Cayuga was delivered to New York Tank Barge Company, and was at that time tight, staunch, strong, and in a seaworthy condition, and was loaded at the Sinclair Oil Refining plant at Warners, N.J., from which she ...


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