The opinion of the court was delivered by: BYERS
In this cause the libelant seeks a decree against the United States in personam, as owner of the Steel Tug No. 871, and the latter in rem, because on August 25, 1952 at about 8:00 P.M. that vessel caused damage to the drydock #2 and pier 3 in libelant's yard in Staten Island, the County of Richmond, within this district.
The facts of the striking of the drydock and damage to the pier are uncontested.
Nor is there any dispute concerning the antecedent events:
The tug was in the yard undergoing repairs pursuant to a contract (No. DA-182 T.C.-601) dated February 14, 1952 in evidence.
The specifications are dated July 14, 1952 and the work called for is 'Annual Drydocking and Miscellaneous Repairs.'
Included therein are about nine pages or more of what seem to be engine repairs.
Pertinent provisions contained in these documents are:
'Article 5(j) -- If required by the specifications, the Contractor shall conduct dock and sea trials of the vessel. Such trials shall be carried out by the vessel's crew with representatives of the Contractor on board to check performance and satisfactoriness of operation. The Contractor shall be responsible for the care, installation and removal of instruments and apparatus furnished by the Government for such trials and shall provide and install all things and appliances necessary for such trials to enable the representatives of the Government to determine whether the requirements of the plans and specifications have been met.'
'Article 5(p) -- The Contractor shall exercise reasonable care and take all necessary or special precautions required to insure the safety of all employees, persons and property in and about the work, and to insure the safety of the vessel or portions thereof upon which work is done.'
'Article 9(a) -- The Contractor shall exercise reasonable care and use its best efforts to prevent accidents, injury or damage to all employees, persons and property in and about the work and to the vessel or portion thereof upon which work is done.'
'Upon completion of all work, the Contractor shall thoroughly clean the interior of the engine, the Contractor shall thoroughly clean the interior of the engine oil pans and crank cases free of all sludge and dirt. The engine shall be properly assembled, adjusted and tested for four (4) consecutive hours at sea trail (sic) run in the presence of U.S. Army Technical Inspector and Engine Manufacturers Service Engineer and all specified work shall be proven satisfactory to them.' (Spec. 4.01, p. 17)
'All engine work in these specifications pertaining to the main engines and auxiliaries required to operate the main engines shall be completed two (2) calendar days prior to completion date in order to provide sufficient time for dock trials and test runs.' (Spec. 4.01, p. 17).
The foregoing are found to impose upon libelant the duty of conducting a dock trial as preliminary to a four-hour sea trial.
This finding is important because the damage asserted by libelant was incurred as the result of a dock ...