c30:No. 76-1383

VAN DUSEN, Circuit Judge,
concurring:
I join in parts I and II of the majority opinion. Also, I agree with the conclusion of part III that the issues of apportionment of damages between the stevedore and the ship, where they are both at fault, should not be reached on this appeal. I cannot agree with the extensive dicta in part III, which I believe should be omitted until there is an appropriate record requiring decision of the issues discussed there. However, in view of part III of the majority opinion, I feel it is desirable to set forth a number of other factors which are relevant to the issues in part III and should be considered by any trial court which is required to directly face these issues in the future.
A judicial apportionment of damages doctrine in cases brought against the vessel under 33 U.S.C. § 905(b) may be inconsistent with the intent of Congress in enacting P.L. 92-576 (Oct. 27, 1972) for these reasons:
1. A judicial doctrine of apportionment of damages in 905(b) cases would result in the increased litigation that Congress sought to avoid by the 1972 Amendments, which inserted this wording in 33 U.S.C. § 905(b):
“(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except [the right of the employer of the longshoreman to recover compensation paid from a vessel found negligent under § 905(b). See 33 U.S.C. § 933(b).]”
(Emphasis supplied).
These Amendments inserted this language in 33 U.S.C. § 905(a):
Ҥ 905. Exclusiveness of liability
(a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative . . . and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. . . . ”
The Senate Report on P.L. 92-576 at 4-5, 9 and 11 uses this language:
“The social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services have seldom resulted in a real increase in actual benefits for injured workers.
“For a number of years representatives of the employees have attempted to have the benefit levels under the Act raised so that injured workers would be properly protected by the Act. At the same time, employer groups indicated their willingness to increase such payments but indicated they could do so only if the Longshoremen’s and Harbor Workers’ Compensation Act were to again become the exclusive remedy against the stevedore as had been intended since its passage in 1927 until modified by various Supreme Court decisions.
“The Committee heard testimony that the number of third-party actions brought under the Sieracki and Ryan line of decisions has increased substantially in recent years and that much of the financial resources which could better be utilized to pay improved compensation benefits were now being spent to defray litigation costs. Industry witnesses testified that despite the fact that since 1961 injury frequency rates have decreased in the industry, and the maximum benefits payable under the Act have remained constant, the cost of compensation insurance for longshoremen has increased substantially because of the increased number of third party cases and legal expenses and higher recoveries in such cases. The Committee also heard testimony that in some cases workers were being encouraged not to file claims for compensation or to delay their return to work in the hope of increasing their possible recovery in a third party action. The Committees attention was also called to the decision in 1966 of the United States district court in Philadelphia concerning the impact of third party claims involving injured longshoremen on the backlog of personal injury cases in that court.
“Since the vessel’s liability is to be based on its own negligence, and the vessel will no longer be liable under the seaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore or other employer of the worker.
“Furthermore, unless such hold-harmless, indemnity or contribution agreements are prohibited as a matter of public policy, vessels by their superior economic strength could circumvent and nullify the provisions of Section 5 of the Act by requiring indemnification from a covered employer for employee injuries.
“Accordingly, the bill expressly prohibits such recovery, whether based on an implied or express warranty. It is the Committee’s intention to prohibit such recovery under any theory including, without limitation, theories based on contract or tort.
“Under .the proposed amendments the vessel may not by contractual agreement or otherwise require the employer to indemnify it, in whole or in part, for such damages.”
Part III does not meet the problems raised by the authorities cited, since it appears that a likely result of the “equitable credit” doctrine or any similar apportionment of liability would be to, once again, drag the stevedore back into the litigation process (thus undermining the safety) in order to defend the subrogation lien he has on the longshoreman’s recovery against the vessel. See Pope & Talbot v. Hawn, 346 U.S. 406, 411-12, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Third Circuit cases cited in footnote 6 of Brown v. Rederi, Opinion of November 4. 1976, 545 F.2d 854 (3d Cir.); 33 U.S.C. § 933, as amended.
2. In any event, the cases of Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968), and Dawson v. Contractors Transport Corp., 151 U.S.App.D.C. 401, 467 F.2d 727 (1972) were decided before 1972 when the Congress amended 33 U.S.C. §§ 905 and 933, as the majority points out in part III of its opinion. For this reason, these cases have a doubtful value as precedent for creating a judicial doctrine of apportionment of damages in § 905(b) cases. Also, there are other substantial reservations concerning the applicability of Dawson and Murray in the maritime section 905(b) actions where an injured longshoreman sues the vessel, since both Dawson and Murray involved exclusively land-based employees engaged in exclusively land-based occupations when injured. Secondly, the Murray opinion does not deal with the so-called “lien” right which the employer and compensation insurer (by way of subrogation) have under 33 U.S.C. § 933, as amended by P.L. 92-576. In Dawson, Judge McGowan indicated his concern that the problems raised by § 933 had not been considered in the court’s earlier opinion in Murray, using this language in note 3 at page 730:
“The District Court was concerned primarily with the apparent inability of an employer, if Murray is applied, to obtain reimbursement for payments made under the compensation statute. [Citing cases.]
“The employer’s right to reimbursement from his employee is not an issue in this case. Moreover, the question of Murray’s validity was not argued to this panel, which, in any event, is without authority to overrule prior decisions of this court. Consequently, we assume the continuing validity of the Murray rule and its application to cases involving the Longshoremen’s and Harbor Workers’ Compensation Act.”
3. Two of the leading admiralty jurisdictions have written decisions which indicate that those Circuits will not follow an “equitable credit” doctrine or any similar apportionment of liability in § 905(b) cases under the 1972 Amendments. See Dodge v. Mit-sui Shintaku Corp., 528 F.2d 669, 672 (9th Cir. 1975); Landon v. Lief Hoegh, 521 F.2d 756, 760, 763 (2d Cir. 1975). It would seem that resolution of the “contribution” issue was a necessary step in Landon and since this Circuit shares admiralty jurisdiction with the Second Circuit over the country’s major port complex, the New York-Newark-Elizabeth area, the Landon case especially, and also the Dodge case, ought to be considered carefully before this court accepts the “equitable credit” doctrine or any similar theory of apportionment of liability in § 905(b) cases. To enact a judicial apportionment of damages in this Circuit in view of these other cases may undermine the essential uniformity which the Congress intended the 1972 Amendments to the Longshoremen’s and Harbor Worker’s Compensation Act to have. See Brown, supra, 545 F.2d at pp. 862-863; see also G. Gilmore & C. Black, The Law of Admiralty, at 48 (2d ed. 1975) (hereinafter cited as Gilmore & Black).
4. In Brown, supra, we pointed out that the trial court’s instruction erroneously imposed the stevedore’s negligence upon the vessel. Apparently Congress intended that the doctrine of vicarious liability would not apply in § 905(b) actions. Similarly, the application of an “equitable credit” doctrine or other judicial apportionment of damages means that the longshoreman, in effect, will be vicariously liable for the negligence of his stevedore-employer to the extent that the amount of the reduction ($10,000. in this case) exceeds the compensation paid by the employer. Such a result has been condemned by Dean Prosser. See W. Prosser, The Law of Torts, § 74 (4th ed. 1971). The '.unfairness of this result has increased and ■confused the litigation in the common law courts when they have engrafted a judicial apportionment of damages concept onto the situation of the workmen’s compensation third-party suit where the injury occurred partially as a result of the negligence of the compensation employer. See the thorough review of this problem in 2A Larson, §§ 75.-22-75.23; 76.00 et seq.; 77.00 et seq.
5. To create judicially an “apportionment of damages” doctrine into § 905(b) cases may greatly undercut major congressional policy considerations underlying the 1972 Amendments without providing adequate replacements for them. For instance, a major complaint of longshoremen’s labor representatives in the Senate and House hearings considering the 1972 Amendments to §§ 933 and 905 was that most vessels upon which these men worked were of foreign registry and, thus, did not adhere to American safety standards under OSHA and other maritime safety statutes and regulations. Congress may have felt that, in allowing a longshoreman to recover full damages against the vessel without regard to the relative fault of the stevedore, a practical incentive would be provided for these vessels and their owners to adhere to American safety standards. Also, formulating the “rules” for uniform results under an “equitable credit” doctrine may well exceed the courts’ Article III power. A court-created apportionment doctrine would be without a well formulated structure. If the result of § 905(b) is unfair to the vessel owner, he should apply for relief to the Congress and not to this court.
. It is clear that Congress gave careful thought to the statutory scheme of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA) and the changes in that scheme brought about by the enactment of P.L. 92-576 in 1972. Both Houses of Congress held extensive hearings on proposed bills incorporating different changes, see Hearings on S. 2318, S. 525, S. 1547 Before the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 2d Sess. (1972), Hearings on H.R. 247, H.R. 3505, H.R. 12006, H.R. 15023 Before the Subcomm. on Labor of the House Comm, on Education and Labor, 92d Cong., 2d Sess. (1972), and both Houses wrote extensive committee reports to explain the purpose underlying P.L. 92 — 576, see S.Rep. No. 1125, 92d Cong., 2d Sess. (1972), H.Rep. No. 1441, 92d Cong., 2d Sess. (1972). See also Comment, Negligence Standards Under The 1972 Amendments to the Longshoremen's and Harbor Workers’ Compensation Act: Examining the Viewpoints, 21 Vill.L.Rev. 244 (1975-1976).
. This apparently refers to the case of Turner v. Transportacion Maritima, 44 F.R.D. 412 (E.D.Pa. 1968), which described the court congestion in this Circuit caused by the decisions of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). It may well be that a judicial apportionment of damages doctrine will increase litigation and may possibly have a similar impact in not only the district courts but this court as well. If such litigation does result, this will undermine the congressional purpose to free the courts from the burden of these longshoremen cases by enacting P.L. 92-576. The Chief Justice of the United States has pointed out that the impact of legislation and court decisions should be carefully considered by courts prescribing such legal rules. See, e. g., The State of the Judiciary —1975, by Chief Justice Burger, 61 A.B.A.J. 439 (1975).
. It is clear that a major congressional concern in enacting P.L. 92-576 was that maritime safety be enhanced. The Senate Report contains this language:
“It is important to note that adequate workmen’s compensation benefits are not only essential to meeting the needs of the injured employee and his family, but, by assuring that the employer bears the cost of unsafe conditions, serve to strengthen the employer’s incentive to provide the fullest measure of on-the-job safety.
“This consideration is particularly crucial with respect to high-risk occupations such as those covered by this Act. Longshoring, for example, has an injury frequency rate which is well over four times the average for manufacturing operations. It is the Committee’s view that every appropriate means be applied toward improving the tragic and intolerable conditions which take such a heavy toll upon workers’ lives and bodies in this industry, and such means clearly include vigorous enforcement of the Maritime Safety Amendments of 1958 and the Occupational Safety and Health Act of 1970, as well as a workmen’s compensation system which maximizes industry’s motivation to bring about such an improvement.”
Senate Report No. 92-1125, 92d Cong., 2d Sess., 2 (1972).
. It is clear that a judicial doctrine of apportionment of damages in these suits will make the stevedore an indispensable party to the action. If the stevedore is not a party, then any finding assessing his proportionate fault will not be res judicata against him in a later suit asserting those rights afforded to him by 33 U.S.C. § 933, as amended by P.L. 92-576. See, e. g., Restatement of Judgments § 6 (1942). See paragraph 2 below.
. It is apparent from the Murray opinion that two important theoretical considerations in the court’s mind in reaching the result were (1) the doctrine of sovereign immunity since the United States was the compensation employer, and (2) the “indemnification doctrine” of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The sovereign immunity doctrine has no place in this case and the Ryan doctrine was explicitly abrogated by the Congress in enacting P.L. 92-576. See pages 148, 149 above.
. In view of Judge McGowan’s first sentence in Dawson and the fact that the district court did not allow a “Murray credit” set-off in the case, I have considerable doubt about the precise meaning of that case and consequently its applicability to longshoremen’s third-party suits brought under § 905(b), as amended by P.L. 92-576.
. This factor formed the basis for Judge Huyett’s rejection of the “Murray credit” in Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759, 764 (E.D.Pa.1975), appeal dismissed, No. 75-1223 (3d Cir., Apr. 30, 1975), cert. denied, 423 U.S. 866, 96 S.Ct. 127, 46 L.Ed.2d 95 (1975), a case cited by this court in Brown, supra at 858 note 6.
. See Brown, supra at 858 note 6; 1A Benedict on Admiralty § 28 (7th ed. rev., 1973 release).
. Most of the cases cited in note 3, page 145, of the majority opinion as supporting an apportionment of damages theory are from the Ninth Circuit and were decided before Dodge.
. Professor Arthur Larson, a leading authority in the field of workmen’s compensation law, offers the following analysis of Murray:
“Assume the total damages are $20,000, . . . if the plaintiff had received $9,000 in workmen’s compensation under Murray, the employee would have to pay $9,000 over to the employer out of his $10,000 recovery, leaving him with a total recovery of compensation plus damages of only $10,000.
“On the practical and policy side, the prime defect of the Murray result is that there is no rational relation between the fifty percent reduction in plaintiff’s recovery and the interests of either the employee or the employer. Let us go back to the facts of the Kittleson case with which this section opened. The compensation liability there was $6,800 and the third-party recovery was $60,000. If this situation were to arise under the Murray case, the plaintiff, instead of recovering $60,-000 and reimbursing the employer for $6,800, thus retaining $53,200, would recover only $30,000 from the third party, plus his $6,800 compensation, for a total of $36,800 — in spite of the fact that at the trial he must be assumed to have established actual damages of $60,000. By what conceivable logic can he be told that he should absorb a loss of $16,-400 for the benefit of the third-party tort-feasor?
“A rule capable of producing such a result is clearly unacceptable, particularly since its legal underpinnings are just as unsound as its practical result.”
2A A. Larson, The Law of Workmen’s Compensation, § 76.22 at pp. 14-318 to 14-319 (Release No. 17, 1974) (hereinafter cited as 2A Larson).
. United States v. Reliable Transfer, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), involved the abrogation of a completely court created rule. Applying that case to § 905(b) cases would be engrafting an apportionment of damages remedy onto a complex and carefully thought out statutory structure with which the Congress intended to fix the rights of the stevedore, vessel owner, and longshoreman. See also Moragne v. States Marine Lines, Inc., 398 U.S. 375, 388-408, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Gilmore & Black, §§ 6-31 to 6-33, 7-20; 2A Larson, §§ 76.00 et seq.

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