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THE S. & H. NO. 5

June 3, 1946

THE S. & H. NO. 5. UNITED STATES
v.
CITY OF NEW YORK



The opinion of the court was delivered by: GALSTON

It was stipulated that these two actions be tried together. The litigations arose as an aftermath of the tugboat strike in the Harbor of New York, which had led to a declaration of the existence of a state of public emergency by the Mayor of the City of New York and the issuance by the President of the United States of Executive Order No. 9693, dated February 5, 1946. The filing of the libel of the Sullivan Dry Dock & Repair Corporation against the tug S. & H. No. 5 was followed by the petition of the S. & H. Tugboat Company impleading the United States of America and the City of New York.

Included in the seizure by the United States Government of various tugboats in the Harbor of New York was the tug S. & H. No. 5. By arrangement between the Office of Defense Transportation, a federal agency, and officials of the City of New York, the City provided crews for the manning and operation of some of such tugboats, including the S. & H. No. 5. On February 13, 1946, that tug was sunk, one day after it had been commandeered. Subsequently it was raised and taken to the plant of the Sullivan Dry Dock & Repair Corporation. The proof leaves no doubt that the libellant in the first entitled case is entitled to be compensated for the fair and reasonable value of the materials supplied and the salvage services rendered to the tug. The subsequent discussion herein will disclose that such decree shall be against the impleaded respondents, with primary liability as to the City of New York, and secondary liability against the United States of America, and the libel dismissed as against the owners of the tug.

 The second libel is that of the United States of America against the City of New York. As amended at the trial, it is claimed that the sinking of the tug S. & H. No. 5 and the consequent damages were caused solely by the negligence of the City of New York.

 On February 5, 1946, acting under the authority of the Executive Order heretofore referred to, excerpts of which are quoted in the margin, *fn1" the Director of the Office of Defense Transportation appointed Laurence C. Turner as Federal Manager and ordered him to: 'arrange for the operation of the systems and properties taken * * * in such manner as may be necessary to carry out * * * the purposes of the Executive Order, * * * with the aid of such public or private agencies * * * as he may designate'.

 Turner thereafter assumed control of tugboats and other vessels in and around New York Harbor for the purpose particularly of expediting the transportation of fuel. Some few days after Turner had assumed authority, he was informed by officials of the City of New York that the fuel requirements of the City of New York were not being met. At the same time Turner was advised by the Police Commissioner of the City of New York, and the Commissioner of Marine and Aviation, that the City of New York could supply from its employment rolls crews sufficient in number to operate five tugs, and requested Turner to assign tugs for such operation by such crews. Tugs were so assigned and among them was the tug S. & H. No. 5. That tug at the time was afloat at the plant of the Sullivan Dry Dock & Repair Corporation.

 On the morning of February 12, Captain Moore, acting for the Office of Defense Transportation, informed the Sound & Harbor, Inc., operators of the tug, that the Office of Defense Transportation was about to commence operation of the S. & H. No. 5. Sone time in the afternoon of that day a crew furnished by the City of New York boarded the tug. It was towed to Pier A, Battery, by the tug Manhattan, owned and operated by the City of New York. The S. & H. No. 5 is a medium sized, shallow draft tug of wood with coal operating steam engines. She had been in operation, doing harbor towing for a period of six months prior to the calling of the strike. Shortly after the strike was called, as a safety precaution her owners put her in the Sullivan Dry Dock plant to be sure that she would receive the necessary supervision during the strike period.

 It is important to note that during the towage from the plant of the Dry Dock to Pier A, those on board, all of whom were City employees, observed that the tug was leaking. But Galloway, the supervising chief and marine engineer, testified that from his observation the tug's syphons were taking care of the water at the time, and that during the trip he found nothing unusual about the condition of the vessel.

 On arrival at Pier A, O'Regan, a mechanical engineer employed by the City Department of Marine and Aviation, issued orders to survey the tug S. & H. No. 5. The report received between 5 and 6 p.m. was that the tug was leaking. Thereupon he instructed the engineer to pump the vessel free of water.

 To operate the tug it was necessary to obtain fuel. The Office of Defense Transportation informed the City representatives that fuel for the tug could be obtained at St. George, Staten Island, or the Berwind-White plant at Communipaw, New Jersey, or at the D.L. & W. Railroad at Hoboken, New Jersey. O'Regan selected the Berwind-White source of supply and ordered the Manhattan to tow the S. & H. No. 5 to Communipaw, Jersey City. There coal was placed in the S. & H. No. 5's bunkers and she was again towed back to Pier A. At the pier her fresh water tanks were filled by Hickman, a supervising captain of the Department of Marine and Aviation, Bureau of Ferries, for the City of New York.

 It seems an inescapable conclusion that had the tug been attended at Pier A after having returned from Communipaw, the sinking could have been avoided. The City people knew that the S. & H. No. 5 had been leaking and that O'Regan had issued orders, as he testified, 'that men be stationed on watch on the tug during the night to cover her until the following day'. He also said: 'It is our custom in marine practice, with a vessel with steam up, to retain a stoker aboard to keep steam up at night time.' A stoker was assigned fro the watch from 4 p.m. to midnight on February 12, and a stoker was expected to relieve him and stay aboard the vessel from 12 to 8 a.m. on February 13. The first stroker went on board on February 12 at about 5 p.m. and stayed there until 12:45 a.m. on the 13th. He syphoned the bilges twice for about 20 minutes each time. When he left there was no one on board. He said that at that time the vessel was dry. Taggart, also a stoker employed by the Department of Marine and Aviation, had been ordered to report to the S. & H. No. 5 at midnight. He said he went over to Pier A from Staten Island, looked around for the tug but could not find it. After communicating by telephone with the City office in Staten Island to that effect he visited Pier A a second time, taking Sloan, a deck hand, with him, and looked for the tug. Neither boarded the S. & H. No. 5. Taggart, instead boarded another tug and remained thereon until the following morning. The S. & H. No. 5 was in consequence unattended throughout the night and in the morning was found submerged, her lines made fast to the south side of Pier A.

 The tug was raised on February 16 and was placed in the Sullivan Dry Dock the same day. At that time the tug's main house was missing and, as McAllister of the Sullivan plant testified, 'the wheel house was askew and what was left of the forward end of the house. The stack of the exhaust pipes were off the vessel entirely * * *'.

 On February 21, the Sound & Harbor, Inc., was informed by the Office of Defense Transportation that it was releasing the tug in her then condition.

 From all of the foregoing i conclude that it was the negligence of employees of the City of New York which was the proximate cause of the sinking of the tug. It is argued that it is illegal for the City of New York to direct its employees to perform services in connection with activities other than those of the City. New York City Charter, Sec. 898, provides: 'No officer or employee of the city or of any of the counties within its limits shall detail or cause any officer or employee of the city or of any of such counties to do or perform any service or work outside of his public office, work or employment; and any violation of this section shall constitute a misdemeanor.'

 Thus, unless the City is willing to admit that its officers and employees were doing an illegal act in working for the Office of Defense Transportation, in the circumstances a hardly sustainable contention, it must be concluded that in operating the tug the City was engaged in the business of the City. The members of the crew did not lose their identity as employees of the City and become agents of the United States because the Federal Government, as well as the City, was attempting to meet the public emergency. Under the authority of Ramsey v. New York Central Railroad Co., 269 N.Y. 219, 199 N.E. 65, 102 A.L.R. 511, the City, as the employer, cannot escape liability even on the assumption that the crew of the S. & H. No. 5 had been lent to the Federal Government. Certainly when the office of the Department of Marine and Aviation ordered Taggart to go on board, his failure to do so cannot be attributed to or bind the Federal ...


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