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March 7, 1942

CANUSO et al.

The opinion of the court was delivered by: GANEY

This matter arises in admiralty wherein two actions by Victor Magistrelli, trading as Wharton Construction Company, were brought against Francis A. Canuso, Sr., and Francis A. Canuso, Jr., co-partners, trading as Francis A. Canuso & Son. The one action No. 11 of 1941 is brought by the libellant for damages by way of rental and towing charges as well as for the loss of a scow allegedly due to the negligence in operation of the same by the respondents, and the second action to No. 9 of 1941 is by the same libellant against the same respondents covering rental and towing allegedly in the aggregate of Three Hundred Seventy-Five Dollars ($375) due the libellant for the use of the scow Winchester while under rental to the respondents. By agreement of counsel both actions were consolidated into one for trial and as to No. 9 of 1941 and No. 11 of 1941, it was further stipulated by counsel that the libellant in both suits be changed from Victor Magistrelli, trading as Wharton Construction Company, to Joseph Magistrelli, trading as Wharton Construction Company; both actions were consolidated for trial, but in oral argument and in the briefs counsel has treated them separately, and accordingly they will be disposed of as separate actions.

With respect to No. 11 of 1941, covering rental, towing charges and the loss of the Scow Victor No. 1, I find as a fact, the following:

 (1) That on August 2, 1939, libellant who was the owner thereof entered into a written contract or charter whereby he agreed to furnish to the respondents the said Scow for a period of one hundred twenty days from the date of the said contract at a total rental of Nine Hundred Dollars ($900) payable in quarterly installments of Two Hundred Twenty-Five Dollars ($225) each during the charter period;

 (3) That the sum of Thirty Dollars ($30) was to be paid by the respondents for towing charges to bring the same from Wilmington up the Raccoon Creek, where it was to be operated by the respondents;

 (4) That it was further agreed that the Scow was to be returned to the libellant at Philadelphia in the same condition as when received by the respondents, ordinary wear and tear excepted;

 (5) That the respondents used the said Scow in Raccoon Creek near Bridgeport, New Jersey, as part of their equipment in the construction of a bridge across Raccoon Creek under a contract with the State of New Jersey up to and including December 13, 1940;

 (6) That at the expiration of the original charter date it was agreed between the parties that the Scow's captain, employed by the libellant, should be removed from the Scow; that the libellant should cease insuring the same and that the respondents were to take full custody, possession and control of it, and the charter hire reduced to One Hundred Twenty-Five Dollars ($125) per month;

 (7) That the said Scow was then used under these arrangements until December 13, 1940;

 (8) That the respondents paid the libellant the charter hire due up to and including November 5, 1940;

 (9) That the said Scow Victor No. 1 at the time of the delivery by the libellant to the respondents under the charter agreement, was a seaworthy vessel;

 (10) That on December 13, 1940, respondents so negligently and carelessly operated, managed and navigated the said Scow Victor No. 1 as to cause her to become stranded on certain obstructions in the Raccoon Creek, consisting of piling and timber of a bridge, which had been previously constructed across said creek and in place of which a new bridge was being constructed.

 A careful reading of the testimony convinces me that at the time the Scow Victor No. 1 was turned over to the respondents by the libellant, the vessel was seaworthy in every respect and I arrive at this conclusion without giving any consideration whatesoever to the testimony of Nelson, who was alleged to be the superintendent on behalf of the respondents, but rather largely on the testimony of Thomas J. August, who has been following the sea for a period of thirty years and made a survey of the boat in the summer of 1939, and again had an opportunity to observe it while in the employ of the respondents during the summer of 1940 as well as other competent testimony by individuals familiar with seacraft, that previous to the delivery to the respondents new planks had been put on the boat and the same was thoroughly gone over and caulked, as well as the fact that it had been engaged in carrying heavy stones on the Smyrna River; ...

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