#### CHRIS LOCKER v. THE UNITED STATES

[No. D-113.

Decided November 16, 1926]

*On the Proofs*

*Charter party; hire; personal services.*— Where, by an informal agreement, the United States hires certain boats from the plaintiff and agrees to pay him $75 each per month for the use of the boats and $150 per month for his personal services in handling them, the plaintiff is entitled to receive both the hire of the boats and the compensation for his services. *Cornell Steamboat Co. case,*58 C. Cls. 497, 267 U. S. 281, cited.

*The Reporter's*statement of the case:

*Mr. William L. Underwood*for the plaintiff.

*Mr. Joseph Hewry Cohen,*with whom was *Mr. Assistant Attorney General Hermam, J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Chris Locker, is a resident of East Islip, Long Island, and by occupation a bayman.

II. On November 11, 1922, the plaintiff hired out to the defendant for the use of the Federal prohibition unit in New York a boat known as the *K-63.*At the time of the hiring the plaintiff held this boat under an agreement with the owner, one Captain Siegel.

Shortly before the middle of December, 1922, the plaintiff likewise hired out to the defendant for similar purposes a boat called the *Argo,*held by the plaintiff under an agreement with John M. Locker, who was his nephew.

III. In accordance with the agreement between plaintiff and the defendant, made at the time of the said hiring, the defendant paid the plaintiff at the rate of $12 a day for the use of the *K-63*up to January 1, 1923, and the sum of $59 for the use of the *Argo*up to the said date, which was on the basis of $75 a month flat rate.

IY. About the 1st of January, 1923, one John B. Appleby, the chief of the prohibition forces in New York, told the *614plaintiff to hire the same boats by the month and that the rate would be $15 each per month. The said Appleby also told plaintiff that he would be paid $150 a month for his personal services in handling the two boats, and that they were needed, one at Fire Island and one at Far Bockaway and Freeport.

The plaintiff hired the two boats accordingly, and they were in use in the enforcement of prohibition laws' near Fire Island, Far Bockaway, and Freeport in the months of January and February, 1923.

V. About the middle of January the *Argo*was frozen in near Amityville, and remained frozen in during the balance of the two months’ period. For about two days, sometime in January or February, the *K-63*was placed in dry dock by the plaintiff for the purpose of installing a new propeller. During the time that the *Argo*was frozen in, she, of necessity, lay idle waiting until the ice in the bay opened up. In the meantime the *K-63*was operated between Freeport and Far Bockaway in pursuit of rum runners.

VI. The plaintiff received the sum of $300 from the defendant as pay for personal services performed by him in January and February, 1923, and the sum of $57 for gasoline and oil used in the two boats during said period. He has not been paid the sum of $300 or any part thereof for the use of the two boats during the said two months.

The court decided that plaintiff was entitled to recover.

Moss, Judge,

rendered the opinion of the court:

This action is instituted by plaintiff for the recovery of a balance claimed to be due by the Federal prohibition unit in New York for the use of two boats, amounting to $300.

In accordance with an informal contract between plaintiff and defendant the defendant was to pay plaintiff at the rate of $12 per day for the use of one of the boats, the *K-63,*and $59 for the use of the *Argo,*which was on the basis of $75 per month from the date of agreement, November 11, 1922, until January 1, 1923. About the 1st of January, 1923, it was agreed between plaintiff and the representative of the prohibition forces that the defendant would pay for the use of the boats at the rate of $75 each per month. It was also *615agreed that plaintiff would be paid $150 per month for his personal services in handling the boats.

About the middle of January. 1923, the *Argo*was frozen in, and remained frozen in during the remainder of the rental period. For a period of about two days the *K-63*was in dry dock for the purpose of certain repairs. Plaintiff was paid in full for his personal services, and he was also paid the sum of $57 for gasoline and oil used in the two boats during said period; but defendant has refused to pay for the use of the boats during the two months’ period.

These boats were used by defendant in the enforcement of the prohibition laws, and were under the command and control of the defendant. Plaintiff’s connection with the transaction was that of an employee on a stipulated salary, whose duty it was to handle the boats.

The facts shown in the record bring the case within the decision of the United States Supreme Court in *United States*v. *Cornell Steamboat Company,*267 U. S. 281, in which it was held that the Government was not entitled to certain deductions under an informal contract similar in character to the one under consideration.

Plaintiff is entitled to recover. And it is so ordered.

Graham, *Judge;*Hay, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.