c33:No. 11, Docket 26317

J. JOSEPH SMITH, Circuit Judge
(dissenting).
I respectfully dissent and would reverse on the ground that the charge did not fully anticipate the later Mitchell definition of the extent of the duty to provide a seaworthy ship. The charge here has not applied the same standards to a temporary condition as to a permanent one.
In Blier v. United States Lines Co., 2 Cir., 1961, 286 F.2d 920, certiorari denied 1961, 82 S.Ct. 32, there was, to be sure, mention of a temporary condition, but no indication that the test of seaworthiness was different from that for a permanent condition. Here, the charge makes a distinction absolving the shipowner from liability “if a momentary phase in the normal progress of work,” and holds that “it is not required to have a crew member handy with a rag to wipe off oil the very minute it is placed in an area.” This seems to me to import a time element into the concept of seaworthiness which time element was rejected by the Supreme Court in Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. If grease was on this step in a quantity sufficient to make it unfit for use by plaintiff, and he was injured thereby, the damage suffered falls under the Mitchell doctrine upon the ship, not the seaman. It makes no difference whether the grease was there seconds or hours, for the liability is imposed because the ladder was unfit for use, regardless of fault, as a means of distributing the risks of the calling. See Harlan, J., dissenting in Mitchell, 362 U.S. 539, at page 572, 80 S.Ct. 926, at page 944.

Passage view · GavelSight