The opinion of the court was delivered by: RAYFIEL
This action is brought by the libelant to recover for damages sustained by its vessel, the steamship Caribstar, on July 13, 1941.
On that day the vessel was lying portside to Pier 33, Brooklyn, New York, and was being loaded by the respondent, a stevedoring company. At about 7:00 p.m. the jumbo boom at the number 2 hatch was rigged under the direction of the ship's first officer, a Mr. Buckley. This boom was on the foremast. A lighter lay alongside the starboard side of the vessel carrying two army tractors aboard, each weighing 14 tons, which were to be loaded to the deck at the number 2 hatch. The jumbo boom, as its name implies, is the heavy lift boom.
At about 10:30 on the night in question the first tractor was lifted by means of the jumbo boom and swung over to the port side of the Caribstar's deck at the number 2 hatch without incident. Thereafter and at about 10:40 p.m. the stevedores prepared the second tractor to be lifted by the jumbo boom. At first it was lifted a few inches and then about two or three feet when suddenly the foremast buckled and the tractor was lowered onto the deck of the lighter.
The libelant claims that the mast buckled due to the negligence of the stevedores in that, first, they failed to rig the preventers, which are additional supports for the mast and consist of two heavy wires about 1 3/8 inches in diameter which run from the top of this steel mast to the deck, and, second, they permitted the tread of the tractor to be caught under the rail at the side of the lighter, thereby causing an unnecessary strain on the mast. The preventers are not used unless the jumbo boom is rigged, in which event they are fastened to the deck on each side of the ship.
I do not agree with the libelant's contentions. Referring to the rigging of the jumbo boom, libelant's witness, Velex, testified that it was the duty of the ship's officers to see that the ship's gear was working properly. Harper, the night mate, testified that the jumbo boom was rigged by the stevedores under the direction of Buckley, the chief mate. He testified as follows:- (see pages 10, 11 and 12 of his deposition)
'Q. Who prepared the heavy lift boom on No. 2 hatch? A. The stevedores.
'Q. Who told them how to do it? A. The chief mate and myself.
'Q. So that you and the chief mate supervised the work, while the stevedores did the actual handling, is that right?
'(Mr. Stuhr: I object to the form of the question) A. Correct.
'Q. Did you and the chief mate give any instructions to the stevedore as to how the heavy lift boom was to be fixed? A. The chief mate gave all the instructions, I assisted him, I did not give any instructions of any kind.
'Q. And when they were ready to lift with the heavy boom, had it been rigged as the chief mate had instructed the stevedores to do it? (Mr. Stuhr: If he knows) A. I can't recall that, I don't know.
'Q. Well, when it was rigged, before they started to lift the tractors, did it look to you as though the heavy lift boom had been properly rigged for the job? A. I left that to the chief mate.
'Q. But from your experience did it look to you as though the heavy lift boom had been properly rigged for the job?
'(Mr. Stuhr: I think that question should be rephrased, perhaps, as to whether he would have rigged it in the same way) well experienced man, he knew his job and he told me to leave the job and take care of something else, so I did not check on what he was doing ...