(concurring).
We all agree that defendant is not liable, on any theory, for the reason that plaintiff failed to present evidence sufficient to establish the fact that, when defendant owned the vessel, there existed a dangerous condition which contributed, or might have contributed, to plaintiff’s injury. There is, then, no need here to consider the purely hypothetical problems whether, if plaintiff had established that fact, defendant would have been liable for unseaworthiness of the vessel or for negligence. Therefore, I consider superfluous my colleagues’ discussion of those problems. To avoid seeming concurrence in the negative implications of that discussion, I think it well to utter these caveats:
1. As the confines of the unseaworthy doctrine still remain unsettled, I think our court should not intimate that the doctrine may never entail liability in a kind of case which is the subject of no *156previous decisions and is not here before us, i. e., to intimate that perhaps in no circumstances will a defendant, the former owner of a ship, be liable to a person, not in “privity” with the defendant, who is injured after the defendant’s sale of the ship, for an unseaworthy condition existing when the defendant was still the owner. Should the problem arise, we would want to consider the following: In Grillea v. United States, 2 Cir., 229 F.2d 687, 689 — referring to Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794—we said that, under a demise (i. e., a bare-boat charter), the owner is liable if the ship was unseaworthy at the time of its delivery to the demisee.1 In Poignant v. United States, 2 Cir., 225 F.2d 595,2 we said that Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, had overruled our previous decisions in which we had held that the owner’s control of the ship is necessary to impose on the owner liability for unseaworthiness.
2. As to negligence: The doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, itself an innovation, may not be static, may still be in process of growth. Suppose, for instance, the following: A defendant buys an automobile "from a dealer. The defendant so negligently repairs it as to create a latent unsafe condition (i. e., one not discoverable by normal inspection) likely to cause injury, at some later time, to a person driving the car. The defendant subsequently sells it, “as is” or without warranties, but does not warn the buyer of the unsafe condition. The new owner, several years later, allows the plaintiff to drive the car. The plaintiff is injured as a result of that latent unsafe condition, which is like a concealed time-bomb.3 I do not know whether or not, in some courts (including ours) such a defendant will be held liable to the plaintiff. I think that, in deciding the instant case, we should not intimate how we will decide such a case when it arises.
If it should turn out to be the rule that the former owner of a car, on such facts, is liable, I would think that that rule would apply as well to the former owner of a ship who had behaved in a similar manner. If so, there might be a difference in the burden of proof if the negligent conduct of the former ship-owner constituted a violation of a statute (or regulation) designed for the. safety of a seaman or worker on the ship. For, if the doctrine of The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148, and related cases, were applicable, defendant would have the burden of proving that by no possibility could the violation have contributed to the accident. My colleagues suggest a doubt as to whether that doctrine applies in a suit for negligence by a seaman or other worker on a ship. I have some difficulty in sharing that doubt, in the light of the Supreme Court’s generous treatment of such persons ; and cf. The Denali, 9 Cir., 112 F.2d 952, 955, certiorari denied Alaska S.S. Co. v. Pacific Coast Coal Co., 311 U.S. 687, 61 S.Ct. 65, 85 L.Ed. 444.
. On rehearing, in Grillea v. United States, 2 Cir., 232 F.2d 919, we held (per Judge Learned Hand) that under a bare-boat charter, for unseaworthiness occurring after the demise, the owner is not liable in personam (but that the vessel is liable in rem).. That, however, is not the case supposed by my colleagues.
. See also Tarkington v. United States State Lines Co., 2 Cir., 222 F.2d 358.
. Cf. Fredericks v. American Export Lines, 2 Cir., 227 F.2d 450.
There we held (1) that the MaePher-son doctrine is not necessarily avoided by the lapse of time, and (2) that the manufacturer, when sued by an employee of the .buyer, is liable even if the buyer, by diligently performing his duty to inspect, would have discovered the defect.