
    Johan Swenson, Appellant, v. Thomas Ward, Respondent.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Bailment — Hiring—Eights and liabilities after expiration of term — Duty of bailee to return vessel.
    Where the hirer of a coal boat assumes, in a letter to the owner, the ordinary obligation of a bailee for hire to return it to the owner’s dry dock, and the boat is found abandoned in a damaged condition, the hirer is liable for the cost of towage to the owner’s dry dock.
    Appeal by the plaintiff from a judgment in his favor, rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.
    Hyland & Zabriskie (Nelson Zabriskie, of counsel), for appellant.
    Kelley & Connelly, for respondent.
   MacLean, J.

The defendant hired the coal boat “ S. McKinley,” about November 28, 1904, for six months, at forty dollars a month; and on February 7, 1905, .-.rote the owner, here the plaintiff: I have this day sent your boat, S. McKinley, to your dry-dock,in Jersey City.” The boat did not come to the plaintiff’s dry-dock, but was later found by him in damaged condition, with a quantity of ice inside, about three miles away, at Port Johnston, to which it had been taken for coal for the defendant by a towing company. The amount of the judgment, equalling, excepting costs, the balance of rent accruing between the last payment and the time of resuming possession, implies that the learned justice found the defendant absolved from any imputation of negligence because the primary accident, staving in of a plank at the light water-line, occurred while the boat was in charge of an independent company, towing, when ice was running, a flotilla in the very service for which the McKinley was chartered; thus, with evidence that no collision or other extraordinary thing occurred, that the boat was not fit, according to the implied warranty in every charter-party, written or verbal, for the service in which it was to be employed. From the fact that the boat was not delivered to the defendant, but taken by him in Brooklyn where left by the last freighter, and from other evidence, it might be inferred that he was not under the ordinary obligation of a bailee to return the article, to the bailor, had not the defendant assumed that obligation in his letter and so made himself liable for the cost of towage to the plaintiff’s dock with, perhaps, other, if any, resultant consequences of the misnotifieation. The judgment should be reversed.

Gildeesleeve, J., concurs.

Scott, J. (concurring).

I agree that this judgment must be reversed. It was admitted on the record that the canal-boat was seaworthy when chartered. It is not disputed that, while in defendant’s possession, she had one of her planks stove in, and leaked so badly that she could not be used without repair. The law casts upon the defendant, a bailee for hire, the burden of showing how the injury occurred, and that it did not happen in consequence of any fault or negligence on his part. This burden he has failed to sustain. Prima facie, therefore, he is responsible for the injury and its immediate resultant consequences.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  