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KENNY v. CITY OF NEW YORK

June 28, 1939

KENNY
v.
CITY OF NEW YORK



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In this cause, the libelant, as owner of the scow "Columbiad", seeks to recover damages from the respondent for failure to return the scow in as good condition as when delivered. The evidence yields the following findings of fact:

1. The libelant at all times material to the issues herein was the owner of the deck scow "Columbiad".

 2. On or about July 5, 1938, the respondent became the bailee of said scow under a written contract consisting of an offer and acceptance, in which the respondent agreed to pay $600 "for the use of a deck scow (bare boat) for fireworks display beginning July 6, 1938 and ending August 31, 1938."

 3. The said contract further provided that the quoted figure "includes the cost of towing the scow to the vicinity of Orchard Beach and return and also includes the furnishing of a layer of sand or soil on the deck. The scow will be equipped with necessary lines and anchors for mooring."

 4. The said scow was delivered pursuant to the said written contract on July 5, 1938, and was moored substantially at a place selected by the respondent.

 5. The scow there remained until August 30, 1938, when she was removed by the respondent to a new mooring distant about 1,000 feet from the place of the first mooring.

 6. During the period from July 5, 1938, to August 30, 1938, the said scow was resting on rocks at low tide, on more than one occasion.

 7. The object of the hiring of the scow was to use it as a platform from which fireworks displays could be conducted under the auspices of the respondent after nightfall, during the stated period.

 8. The place of the second mooring was selected by the respondent, and the scow was there anchored by a tug master hired by the respondent to move the scow to its new location.

 9. Between August 30, 1938, and September 2, 1938, the scow went adrift during an easterly storm.

 Conclusion of Law.

 The respondent must be held liable for the damage sustained by the scow while it was bailee thereof.

 The foregoing findings require but brief discussion; the only argument presented for the respondent in its brief is that the City did not charter the scow but merely hired what it calls a "floating platform", the responsibility for ...


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