c33:No. 46, Docket 28231

CLARK, Circuit Judge
(dissenting).
As the trial judge found, when the captain and the purser sat down at the lunch counter, the “captain sat between the plaintiff and the door that they had entered.” So after the trap door was opened midway between them and the entrance door — an occurrence which the captain observed and the plaintiff did not — they started to leave, with the captain walking immediately in front of the plaintiff. “The plaintiff’s vision was obscured by the body of the captain, who wore a homburg hat.” The open trap door was “visible to the captain but not to the plaintiff.” It is thus quite clear that the captain was fully apprised of the dangerous condition caused by the open trap door, and that the plaintiff had no knowledge of it, as was natural under the sequence of events I have just noted.
Under the circumstances it seems passing strange that the captain, who could see all this, did not do the human thing of even saying, “Look out” or “Watch your step.” We do not need to resort to the traditional view that seamen are wards of admiralty or even rely on the Jones Act to see, with the trial judge, that the captain was guilty of rather gross negligence. Since they were on the ship’s business and since there is no question of contributory negligence, the moderate award made the plaintiff should stand.

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