The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
Moran Towing & Transportation Company, Inc., was on the petition of the respondent, the City of New York, impleaded under Rule 56 in Admiralty, 28 U.S.C.A. following section 723.
This is an action on a contract of charter.
On October 21, 1940, the Dump Scow "G-4", owned by the libellant, George Leary, Jr., was delivered to the City of New York, pursuant to a written contract of charter. The said contract of charter was City of New York Contract No. 2298, Class 3 (Ex. 1).
The scow remained in the possession of the City of New York under this contract of charter, until on or about March 13, 1941, at which time it was returned to libellant.
An ingoing survey was held on the scow at the time of delivery to the City of New York (Ex. 3), and an outgoing survey was held after the return of the scow to the libellant (Ex. 2). Both surveys were attended by representatives of the City of New York, and the owner.
The outgoing survey disclosed that the scow "G-4" had sustained damage, in addition to the damage found on the ingoing survey, while under charter to the City of New York. The additional damage, so found, was not the result of ordinary wear and tear.
The scow "G-4" was a vessel, without motive power, and the charter and delivery of the scow to the City of New York amounted to a demise thereof.
The charter being a demise charter, the City of New York, the respondent, was required to return the vessel in the same good order, and condition, as when received, ordinary wear and tear excepted.
The libellant made out a prima facie case by showing that the scow was not returned in the same condition as when received, but in a damaged condition. This was conclusively shown by the ingoing and outgoing surveys, excepting from the outgoing survey the damages noted on the incoming survey and the damages shown by the survey of damages inflicted by the Samson for which the respondent was not responsible.
To relieve itself from liability, the charterer, the respondent, the City of New York, was bound to establish that the damages resulted through no neglect of the said respondent. Tomkins Cove Stone Co. v. Bleakley Transp. Co., Inc., et al., 3 Cir., 40 F.2d 249; Eureka No. 70, 2 Cir., 15 F.2d 366, 1926 A.M.C. 1668; C.F. Harms Co. v. Upper Hudson Stone Co., 2 Cir., 234 F. 859.
In its attempt to show that the damages resulted through no neglect of the charterer, Captain McCarthy, Captain of the Dredge Grabit, read many items from the dredge's log. That was the dredge from which the material was loaded on the Dump Scow "G-4".
The log of the Grabit was of course self-serving, but notwithstanding that fact, in no entry, that was read, was there any explanation of the way in which the damage occurred. Further, we must not lose sight of the fact that Captain McCarthy admitted, on cross-examination, that he did not make entries in the log of damages caused by the dredge.
The most that was disclosed by the log was, that on several occasions the Dump Scow G-4" was not towed, because of weather conditions. The evidence shows that on those days no dump scows were towed to sea by Moran.
The fact that the "G-4" leaked on several occasions seems to me to be immaterial, as it is common knowledge that all wooden scows, ...