Opinion
Leo J. Hickey, U.S. Atty., of Brooklyn, N.Y. (John R. Starkey, Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.
Louis Aldino, of Brooklyn, N.Y., for defendant.
ABRUZZO, District Judge.
An information was filed against the defendant, charging that on September 21, 1936, in violation of the Act of Congress of June 29, 1888, c. 496, § 1, 25 Stat. 209 (title 33, § 441, United States Code (33 U.S.C.A. § 441)), the defendant unlawfully placed, discharged and deposited refuse, sludge and oil +rom the oil barge Moormack No. 2 in the tidal waters of the Harbor of New York and its adjacent and tributary waters, within the limits which have been prescribed by the supervisor of the harbor, to wit, Gowanus canal and Buttermilk channel.
The government produced evidence to indicate that oil found in Buttermilk channel was traced to the oil barge Moormack No. 2, owned by the defendant. This evidence indicated a violation of the law set forth in the information.
The defendant introduced evidence that this oil barge was moored tightly and that they knew nothing about the discharge of the oil until the government inspector notified them of that fact. The previous night there occurred a severe storm with a great deal of wind. It was found that a petcock or another part of the barge had been broken which permitted the oil to leak out unknown to the defendant. It was contended that this unusual storm was the cause of the leak.
The defendant's testimony showed that it had no control over the occurrence which caused the oil to leak into the channel.
The government's inspector was justified in making the charge. However, in view of the circumstances that the oil leaked into the waters through no direct act and because of the situation over which the defendant had no control, the court finds in favor of the defendant.