(dissenting).
The opinion states that the issue posed by the appeal is “whether there was evidence sufficient for-the jury to find facts which as ¿ matter'-o'f law -piA control' of the hatch in the shipowner "during the critical period.” I agree that this is the issue, bpt I am unable to agree with my brothers! conclusion that, it was permissible for the jury to find, “that the tnate assumed control of the hold when he made the inspection.” Judge Edelstein’s , opinion, 107 F.Supp.- 316, at 317 notes that “the third mate testified that he was responsible, for the safe stowage of the cargo. He further gave testimony from which the jury could have found that he made an inspection of the hold during the' disputed period.” The trial judge evidently thought, and my brothers appear to be of the same opinion, that this testimony would justify a finding that the mate’s inspection constituted a resumption by the shipowner of control of the No. 4 hold. I think this involves' a misconception of the testimony. The mate’s responsibility for' the stowage of cargo was to see that stowed cargo had been properly stowed for the safety of the voyage. This is all his testimony means, as I read it.1 Concededly the ship had surrendered control of the hold to the stevedores when they started loading' in the morning. An inspection by an officer of the ship later in the day and' before their work has been completed to see that the work was being properly done ajid that so much of the cargo as had been finally put in . place h^d been safely stowed, cannot as a matter of law, in my opinion, sustain a finding that thereby the ship resumed control of the hold. Unless control was thus resumed, the majority, opinion, as I read it, -would not find the judgment supportable because of lack of lighting. I think the motion for judgment notwithstanding the verdict should have been granted.
. What he said was as follows:
"Q. Between 5 and 6, on the day of the accident, which was two hours, or one hour, before this gang, came down to work, you were down in 'the lower hold? A. Between 5 and 7 o’clock.
“Q. You were down there? A. At that time I take a look at all the hatches. I go one by one to see the proper.conditions of the stowage of the cargo.
“Q. In other words,' you felt that you were responsible to see that it was in proper .condition? A. Yes, I am the officer on duty.
“Q. You were responsible? A. Yes, sir. I received orders from the Chief Mate on the stowage, and he tell. me, ‘I want the cargo in this condition in the hatch, here, here, and here.’ All the places they want to put the cargo. The lower part of' the hatch was completely full of cargo.”