c38:No. 9129

J. SPENCER BELL, Circuit Judge
<dissenting):
When the quantity of ore remaining in the vessel’s after deep tanks had been reduced to such an extent that it was no longer efficient to use the bulldozer, those in charge were left with the choice •of either shoveling the coal into the •center of the hatch where it could be reached by the grab bucket or devising some expedient by which the grab bucket •could be moved closer to the margins of the tank. Rather than use the slower and more expensive method of shoveling the coal into position under the hatch, the men were permitted manually to push or guide the grab bucket with their hands to spot it over piles of ore positioned away from the center of the hatch. At a given signal the winchman dropped the bucket onto the ore. While playing “drop the handkerchief” in this manner with a two ton grab bucket, the predictable happened to the libellant’s foot as he was pushing or guiding the bucket. To make the game even closer to Russian Roulette, the winchman could neither see nor hear the men in the hold. Commands were relayed to him from the deck.
The trial court credited the testimony of the ship’s officers, the expert, the foreman, etc., none of whom customarily put their feet under the handkerchief. These gentlemen all testified it was a customary and reasonably safe way to unload a ship. We agree — that' is, it was safe for the experts, officers and foremen, and also for the ship. I have no doubt that it was cheaper and more expeditious to push the bucket to the ore than the ore to the bucket. But no expert' will make me believe that the practice here indulged was “reasonably safe.” There was no real dispute about the method of operation. I think the court was clearly in error in holding that it was not negligent. If the practice was pursued long enough to be actually or constructively brought to the attention of the ship’s officers, their failure to stop it was negligence for which they should be held liable.
It is probably true that this method often has been and is used, and often will be, so long as the courts tolerate it and the industry is indifferent to its appalling safety record. The philosophy of the industry seems to be — if the men are willing to risk their lives and limbs — why should you care? The answer is that it is not the industry, and in this day of organized relief not the individual, who pays the price of such stupidity — it is society, and society cannot' afford it. Other industries have stopped it, and the shipping industry will- if the courts withdraw the monetary incentive to such substandard practices involving needless hazards to their workmen.
I would reverse.
. The House Report accompanying the 1958 Amendment to the Longshoremen’s and Harbor Workers’ Compensation Act points out that stevedoring is the most hazardous of all industries which report their experience to the Bureau of Labor Statistics, having an injury frequency rate of seven times that of manufacturing. (1958 U.S.Code and Cong.News, p. 3843).

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