c33:No. 42, Docket 80-7081

FRIENDLY, Circuit Judge,
concurring:
While I do not agree with every word in Judge Meskill’s opinion with respect to liability, I happily concur because it is a major advance in the endeavor to bring some order out of the chaos surrounding the ship’s liability under 33 U.S.C. § 905(b) in cases of concurrent negligence by the stevedore-employer and because I see no prospect that any other panel or even the court in banc would achieve a better formulation. I reluctantly agree also that we are compelled by the combination of statute and Supreme Court decisions to sanction a result wherein if a properly charged jury were to find in Evans’ favor in the same amount, the less negligent ship would bear the entire load, the more negligent employer would emerge scot-free, and Evans would take nothing, so that the beneficiaries of the recovery would be Evans’ lawyer and his employer’s compensation insurer. Our judicial system should not be obliged to countenance so palpably unjust a result, and the maritime industry should not be exposed to such costs.
Perhaps one reason why the Supreme Court has not been more sympathetic to proposals to modify its decisions in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952) and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), has been that the new solutions offered contained elements of inequity. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 724-26 (2 Cir. 1978). In the Zapico opinion I advanced a solution which seemed to me to overcome these objections, 579 F.2d at 726 n.8:
A solution preferable either to Dole [v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 M.E.2d 288 (1972)], which fails to give adequate weight to the employer’s no fault liability and thus may leave him liable for an amount in excess of statutory compensation payments, or to [the decision of the court of appeals in] Edmonds, which irrationally reduces an employee’s recovery against a third party tortfeasor because of the employer’s negligence, would be to allow the longshoreman to recover in full from the negligent third party but to allow the latter to recover from the negligent stevedore the amount of the judgment representing the stevedore’s percentage of fault up to but not exceeding the statutory level of compensation payments. When compensation payments have been made, § 33, 33 U.S.C. § 933, would then operate as usual. Under this scheme the employee gets his full damages, the stevedore pays his percentage of the liability but not above the level of the compensation payments which he has bargained for in exchange for his willingness to pay without fault, and the third party is relieved of the obligation to pay the full judgment.
We were not free for procedural reasons to consider this solution in Zapico, and in any event we thought that, as an inferior court, we were precluded from doing so. However, if the Supreme Court were convinced of the justice of this solution, I am not sure it could not find a legally defensible way to achieve it. Alternatively, and perhaps preferably, removal of this injustice should be the subject of remedial legislation by Congress. Without this, many of the benefits sought to be accomplished by the 1972 amendments to the LHWCA will be lost.
. The reference to Edmonds was to the panel decision in 558 F.2d 186 (1977), later modified in banc, 577 F.2d 1153 (4 Cir. 1978) and then reversed, supra, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521.

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