Kenny v. City of New York

Second Circuit

Kenny v. City of New York

108 F.2d 958, 1940 U.S. App. LEXIS 4922, 1940 A.M.C. 186

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 15, 1940

DocketNo. 146

StatusPublished

Cited by7 cases

This text of 108 F.2d 958 (Kenny v. City of New York) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenny v. City of New York, 108 F.2d 958, 1940 U.S. App. LEXIS 4922, 1940 A.M.C. 186 (2d Cir. 1940).

Pincite

Opinion

PATTERSON, Circuit Judge.

Kenny furnished the City of New York with a deck scow for use by the City for fireworks display. By the agreement the City was to have the use of the scow, bare boat, for fireworks purposes during July and August and was to pay Kenny $600. Kenny was to equip the scow with lines and anchors. Kenny took the scow to the vicinity of Orchard Beach and moored it offshore at a place pointed out by the City’s representative. .In this position the scow rested on rocks at low tide on several occasions. At the City’s direction it was moved to another mooring in the same vicinity in the latter part of August. While at the second mooring it went adrift during a storm, with resulting damage. Kenny had visited the scow from time to time by permission of the City and had pumped it out once or twice. The City had maintained signs, fire extinguishers and lights on the scow and had used it for display of fireworks. Kenny brought a libel in admiralty to recover for the damage done to the scow. The district judge who tried the case held that the City was responsible for the dam[959]*959age and gave the libellant an interlocutory decree.

The City insists that the case was not properly brought in admiralty. We see no merit in the point. The scow was afloat and capable of navigation at all times. It was moved on one occasion, and might have been moved more frequently if the City had so desired. The contract was for the hire of the scow and was clearly a maritime contract. True, the purpose of the hiring was the display of fireworks and not the transportation of cargo, but this fact alone does not take the case out of admiralty. Bowers Hydraulic Dredging Co. v. Federal Contracting Co., D.C.N.Y., 148 F. 290, affirmed, 2 Cir., 153 F. 870; Warren & Arthur Smadbeck v. Heling Contracting Corporation, 2 Cir., 50 F.2d 99; The Showboat, D.C., 47 F.2d 286.

On the merits we agree with the district judge. Possession of the scow passed to the City under a bare boat charter. The City had the right to move the scow from one location to another in the vicinity of the beach. By putting on board signs, fire extinguishers and lights the City recognized that the scow was in its posses sion and control even when fireworks were not being exhibited. Kenny’s visits do not negative such control; he got permission to go aboard, and his interest as owner accounted for his intermittent attentions to the scow. The vessel was delivered to the City in good condition and was returned in damaged condition. These facts cast on the City the burden of going forward with evidence to prove that the damage was not due to lack of care on its part. Ira S. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417. There was no such evidence. The district judge properly held the City responsible for the damage.

Affirmed.

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PATTERSON, Circuit Judge.

Kenny furnished the City of New York with a deck scow for use by the City for fireworks display. By the agreement the City was to have the use of the scow, bare boat, for fireworks purposes during July and August and was to pay Kenny $600. Kenny was to equip the scow with lines and anchors. Kenny took the scow to the vicinity of Orchard Beach and moored it offshore at a place pointed out by the City’s representative. .In this position the scow rested on rocks at low tide on several occasions. At the City’s direction it was moved to another mooring in the same vicinity in the latter part of August. While at the second mooring it went adrift during a storm, with resulting damage. Kenny had visited the scow from time to time by permission of the City and had pumped it out once or twice. The City had maintained signs, fire extinguishers and lights on the scow and had used it for display of fireworks. Kenny brought a libel in admiralty to recover for the damage done to the scow. The district judge who tried the case held that the City was responsible for the dam[959]*959age and gave the libellant an interlocutory decree.

The City insists that the case was not properly brought in admiralty. We see no merit in the point. The scow was afloat and capable of navigation at all times. It was moved on one occasion, and might have been moved more frequently if the City had so desired. The contract was for the hire of the scow and was clearly a maritime contract. True, the purpose of the hiring was the display of fireworks and not the transportation of cargo, but this fact alone does not take the case out of admiralty. Bowers Hydraulic Dredging Co. v. Federal Contracting Co., D.C.N.Y., 148 F. 290, affirmed, 2 Cir., 153 F. 870; Warren & Arthur Smadbeck v. Heling Contracting Corporation, 2 Cir., 50 F.2d 99; The Showboat, D.C., 47 F.2d 286.

On the merits we agree with the district judge. Possession of the scow passed to the City under a bare boat charter. The City had the right to move the scow from one location to another in the vicinity of the beach. By putting on board signs, fire extinguishers and lights the City recognized that the scow was in its posses sion and control even when fireworks were not being exhibited. Kenny’s visits do not negative such control; he got permission to go aboard, and his interest as owner accounted for his intermittent attentions to the scow. The vessel was delivered to the City in good condition and was returned in damaged condition. These facts cast on the City the burden of going forward with evidence to prove that the damage was not due to lack of care on its part. Ira S. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417. There was no such evidence. The district judge properly held the City responsible for the damage.

Affirmed.

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Bluebook (online)

108 F.2d 958, 1940 U.S. App. LEXIS 4922, 1940 A.M.C. 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenny-v-city-of-new-york-ca2-1940.

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