The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
1. The verdict of the jury is against the overwhelming weight of the credible evidence.
2. The court erred in charging the jury, in substance, that the contributory negligence of the plaintiff, if found, would not in any way operate to reduce the amount of his recovery. The defendant was entitled to a charge that the contributory negligence of the plaintiff might operate to reduce his damages proportionately. It is true that contributory negligence was improperly pleaded as a complete rather than as a partial defense or in mitigation of damages. However, it was made clear, before the case was submitted to the jury and in the request to charge, that the defendant sought to invoke the rule under the maritime law that the damages suffered by the plaintiff might be reduced or mitigated if and to the extent that the jury found he had been guilty of contributory negligence.
In Seas Shipping Co. v. Sieracki (328 U. S. 85), the court extended to longshoremen employed by an independent stevedoring contractor the same warranty of seaworthiness which theretofore had been applied to crew members. The court held that the obligation was essentially a species of liability without fault and was neither contraetural in nature nor limited by conceptions of negligence; that for purposes of the liability a stevedore is a seaman because he is doing a seaman’s work and incurring a seaman’s hazards and is entitled to a seaman’s traditional protection. Although the question of contributory negligence was not involved in that case, the court indicated that in a suit by a seaman based upon seaworthiness, the contributory negligence of the seaman would result in mitigating or reducing his damages (p. 94, n. 11; see, also, Socony-Vacuum *648Co. v. Smith, 305 U. S. 424; The H. A. Scandrett, 87 F. 2d 708, 711). In Strika v. Netherlands Ministry of Traffic (185 F. 2d 555), which was based on the Sieracki case (supra), a longshoreman injured ashore was allowed recovery against the shipowner for breach of warranty of seaworthiness of the ship’s tackle but his verdict was reduced 10% because of his contributory negligence. (See 64 Harv. L. Rev. 996.) The Sieracki ease extended the warranty of seaworthiness to longshoremen. The learned trial court below went one step further and held that a longshoreman was completely immune from the results of his own contributory negligence. No seaman has ever enjoyed such an immunity and there is no justification, in reason or in authority, for granting it to a longshoreman.
3. The court erred in refusing to allow the defendant the opportunity to explain by competent evidence the entry in a log book (received in evidence) of a survey made three days after the accident.
4. Although, as has been stated, we believe that the verdict of the jury was against the overwhelming weight of the credible evidence, we are of the opinion that the complaint should not be dismissed. There was evidence, sufficient to warrant submission to a jury, that the condition of either or both of the winches involved in the accident contributed to its occurrence.