join (dissenting).
In one aspect the present libel pictures the shipboard death of libellant’s decedent within the state of New Jersey as having resulted, without negligence on the part of the respondent shipowner, from an unseaworthy condition of the vessel. This court now holds that New Jersey, in its Wrongful Death Act, has made a non negligent shipowner liable1 for death thus caused within the borders of that state. We think this is a mistaken interpretation of the New Jersey law and, therefore, dissent.
The division of the court on this point seems best explained by starting with certain premises and underlying concepts upon which all of us agree. A federal court is hero asked to enforce a cause of action, the existence and dimensions of which are determined solely by the law and policy of New Jersey. True, the United States District Court which heard this case was sitting “in admiralty”. But for present purposes this is significant only in that the practice properly followed in that forum is admiralty practice. Thus, the proper form of complaint in this case was a libel in the admiralty style. The shipowners could be reached by attaching the vessel in the classic admiralty manner. But beyond such matters of legal administration, the substantive concepts of admiralty had no effect as law in defining the claim. State law and it alone performed that function. *20Admiralty was merely the administering forum in a situation in which the maritime law itself did not even provide a cause of action for wrongful death.
The Supreme Court has recently made an explicit and authoritative statement of what a district court does in a situation like this:
“The United States District Court for the Eastern District of Kentucky heard this suit sitting in admiralty. * * * The District Court adopted and enforced the obligatio created by the State of Kentucky not because it sits in Kentucky and responds to the desirability of uniformity in the administration of justice within that State. In the absence of congressional action, the court adopted and enforced the obli-gatio created by Kentucky as it would one originating in any foreign jurisdiction. * * * And it was bound to enforce it as it found it, * * * [except for] procedural niceties. * * * ”1
For present purposes the most important part of this exposition is the concluding sentence: “it [the federal admiralty court] was bound to enforce it [the state obligatio] as it found it. * * * ”
Thus, to the extent that state policy has led the state legislature to give dependents rights against one who has caused the death of their provider within the state, a federal court will carry out that policy. Ordinarily the federal court entertains the state created wrongful death claim on its law side. But where the fatal injury has occurred on navigable water, it is accepted practice to entertain the suit on the admiralty side. But, in either event, it is the state law, as defined and construed in the light of state policy, which the federal court must apply.
It is believed that all members of this court accept the above outlined legal theory of what a federal court does and how it should approach its task in a case like this. However, we who dissent think the majority has disposed of this case as if admiralty policies and concepts developed by federal courts in maritime causes were controlling when there is nothing to show that New Jersey has adopted or would adopt these federal maritime concepts of liability to define rights it has created as part of its common law jurisprudence.
The New Jersey Wrongful Death Act, like most prototypes of Lord Campbell’s Act, gives dependents a right to recover for death caused by the “wrongful act, neglect or default” of another. Historically, neither the common law nor any statute of New Jersey seems ever to have utilized the circumstance of unseaworthiness as a basis of imposed liability for non-negligent personal injury. To reach this court’s result it is necessary to attribute to New Jersey a purpose to make a novel piecemeal borrowing of maritime concepts.
We call this borrowing novel and piecemeal advisely. It has long been a peculiar and characteristic feature of admiralty law that a ship is responsible to indemnify members of its company for injuries caused by the unseaworthiness of the vessel.2 But historically this responsibility covered only the members of the crew.3 Moreover, a crewman’s rights did not survive him. It is only in recent years, long since the enactment of the New Jersey Wrongful Death Act, that admiralty case law of the United States courts has extended the seaman’s protection against unseaworthiness to longshoremen and other persons not members of the crew.4 Thus, to construe the New *21Jersey statute as applicable to the present case, requires not only the inference that the New Jersey statute was intended to create rights in accordance with admiralty concepts of liability as they existed when the legislation was passed, but also that subsequent modifications of admiralty concepts by the federal courts routinely become a part of New Jersey policy and law.
Moreover, although the majority do not face the problem here, the question must arise whether under the prevailing analysis New Jersey accepts the unseaworthiness concept alone in defining the statutory rights it has created, or whether other admiralty doctrines, notably that of comparative negligence, are also part of the state created right. This court and others have from time to time rejected the idea that state wrongful death causes incorporate the admiralty comparative negligence concept.5 If the fact that comparative negligence is a liability defining concept peculiar to maritime law prevents its implied incorporation in a state created death cause, the same seems equally true of the maritime unseaworthiness concept.
Thus, even if the New Jersey cases provided no guide for the interpretation of the Wrongful Death Act in situations of this kind the conclusion reached by the majority would seem illogical and for that reason unwarranted. We are the more confident of this view since several federal and state courts interpreting death statutes of other states have been unable to find any satisfactory rationale for the use of the unseaworthiness concept in defining the causes of action which these state statutes have created.6
But we think the New Jersey cases are instructive and helpful. They show rather clearly the way in which the New Jersey courts understand their Wrongful Death Act. As a general proposition, common law concepts of tort, with negligence a prerequisite to recovery, are read into the New Jersey statute by the courts of that state. If a fatal accident occurs on land or non-navigable water within New Jersey, or if anyone other than the shipowner is sued for a fatal accident on a ship in navigable New Jersey water, there is no question that New Jersey policy and law require a showing of lack of due care to establish a claim under the Wrongful Death Act.7 It would be strange for New Jersey to rule that under the general wording of the statute, there is a different and more stringent duty on shipowners in navigable water. At least two cases indicate the absence of any such special onerous responsibility on shipowners.
In Santamaria v. Lamport & Holt Line, Ltd., E. & A. 1938, 119 N.J.L. 467, 196 A. 706, an action under the New Jersey Wrongful Death Act, a shipowner was sued for the death of a stevedore who, while unloading a vessel, was thrown into the hold by the upending of a board constituting part of a hatch cover. In Moran v. Moore-McCormack Lines, 1944, 131 N.J.L. 332, 36 A.2d 415, a personal injury case, one line of proof indicated that a stevedore’s injury had been caused by a latent defect in a skid which the shipowner had provided for the unloading and transferring of cargo. In both *22cases the New Jersey courts emphasized the absence of liability unless negligence on the part of the shipowner should be proved. True, there was no discussion of the unseaworthiness of vessel or gear as a possible basis of liability without fault. Still if the substantive law of New Jersey as applicable to wrongful death causes recognizes an absolute duty of a shipowner to supply a longshoreman with a seaworthy vessel and gear, it is very difficult to believe that neither court nor counsel would advert to this legal basis of liability in cases so obviously appropriate for its invocation. It should be added that we have found no mention of this possibility in any other New Jersey case.
We think it clear that in administering their Wrongful Death Act, whether the injury has been on land or water and whether the defendant has been a shipowner or anyone else, the New Jersey courts have consistently defined and confined liability within common law concepts of negligent or intentional wrong. For a federal court to say now that the law of New Jersey is otherwise is to rule in derogation of the whole history of New Jersey litigation interpreting a New Jersey statute as based on common law concepts.
Finding no New Jersey cases helpful, the majority point to decisions of several other state courts holding that death caused by breach of warranty of quality of goods may be actionable under their death statutes.8 But these cases illustrate the very point we are stressing in dissent. In these states there are statutes or decisions, or both, clearly showing the state policy and legal rule making such adulteration of foods an actionable wrong. It then is logical to view death caused by such violation of state policy and requirements as actionable under the local Wrongful Death Act. It is the absence of any such New Jersey concept of unseaworthiness as an actionable wrong which requires an opposite result in this case.
Finally, the majority find support for their view in the fact that the New Jersey statute in terms comprehends fatal injury “such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury”. This provision is present in almost all death statutes of this type and has been universally considered to be a limiting concept. See Prosser, Torts, § 105 (2d ed. 1955). The liability defining part of the statute is. found in the words “wrongful act, neglect or default”. The limiting words-which follow serve only to make sure-that defenses which would have been, available against the decedent, had he lived, shall be available against the-wrongful death claim. We think these limiting words have no bearing upon our present problem whether a maritime type, of liability without fault is created by the preceding phrase, “wrongful act, neglect or default”.
For the foregoing reasons we think the-New Jersey law provides no cause of action for death resulting from unseaworthiness without negligence. Judge Maris and Judge Kalodner would go farther and say that the result of the majority would be incorrect even if New Jersey did incorporate the unseaworthiness concept of admiralty. In this case-the district court found as a fact that the-decedent knew of the presence of the oil slick which caused him to slip and fall' to his death. Indeed, the record shows, beyond question that this condition was. apparent and obvious. In addition, decedent boarded the ship to repair the very defective valve which had caused the oil to leak and spread over the deck. In-, these circumstances Judge Maris and'. Judge Kalodner would hold, relying upon Bruszewski v. Isthmian SS. Co., 3 Cir., 1947, 163 F.2d 720 certiorari denied 333 U.S. 828, 68 S.Ct. 451, 92 L.Ed. 1113, that, even applying concepts of the maritime law, a shipowner does not warrant, to one so situated and informed as this, workman, that the deck is free of oil or-*23of the obvious hazards incidental to the presence of that substance. However, I am content to rest my dissent solely upon the construction and application of the New Jersey law, without examining the reach of the unseaworthiness doctrine, if maritime law were applicable.
This case has a second aspect. The libellant undertook to prove that, quite apart from unseaworthiness, the shipowner was responsible for actionable negligence on the part of the ship’s personnel in not providing the decedent with a reasonably safe place to work. On the evidence and the findings we think the defendant was entitled to judgment on this branch of the case.
Here again the majority seem to apply federal admiralty concepts to define a state created death claim. But the question to be decided is the extent of the duty which New Jersey law imposes upon the possessor of a place to provide a safe place to work for employees of independent contractors who entered the place as business invitees. The fact that the place in this case is a ship is incidental and irrelevant for present purposes.
We have already pointed out that in this case it has been established as a fact that the dangerous condition was obvious and actually known to the decedent. In Newbury v. American Stores Co., 1935, 115 N.J.L. 604, 607, 180 A. 875, 876, the Court of Errors and Appeals stated the rule of New Jersey law which is controlling in such circumstances: “It is axiomatic that the rule, that one who enters store premises by invitation may lawfully assume that the proprietor has performed his duty to render the premises reasonably safe, is not applicable where the invitee knows the contrary to be the case.” We think Broecker v. Armstrong Cork Co., E. & A.1942, 128 N.J.L. 3, 24 A.2d 194, turns on the same principle that a danger which is obvious to the business visitor does not constitute a breach of duty to provide him with a safe place to work. Indeed, this appears to be a principle which is generally accepted in the law of torts.9
In these circumstances it is immaterial whether admiralty law, in cases to which it is applicable, may impose a more stringent duty. New Jersey tort principles are controlling here, and under them, on the admitted facts, the person in possession of the place of injury was not responsible for death caused by a condition of which the invitee was fully cognizant.
In our view the judgment below should be affirmed.
. Levison v. Deupree, 1952, 345 U.S. 648, 651-652, 73 S.Ct. 914, 916, 97 L.Ed. 1319. And see the similar rationalization of Circuit Judge, now Chief Judge, Biggs in Klingseisen v. Costanzo Transp. Co., 3 Cir., 1939, 101 F.2d 902, 903.
. The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760.
. See Tetreault, Seamen, Seaworthiness and the Rights of Harbor Workers, 1954, 39 Corn.L.Q. 381, 408.
. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 *21(longshoreman); Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (carpenter working on a ship).
. Curtis v. A. Garcia Y. Cia., Ltda., 3 Cir., 1957, 241 F.2d 30; Klingseisen v. Costanzo Transp. Co., 3 Cir., 1939, 101 F.2d 902; Byrd v. Napoleon Ave. Ferry Co., D.C.E.D.La.1954, 125 F.Supp. 573, affirmed per curiam 5 Cir., 1955, 227 F.2d 958, certiorari denied 351 U.S. 925, 76 S.Ct. 783, 300 L.Ed. 1455; Feige v. Hurley, 6 Cir., 1937, 89 F.2d 575.
. Lee v. Pure Oil Co., 6 Cir., 1955, 218 F.2d 711; Graham v. A. Lusi, Ltd., 5 Cir., 1953, 206 F.2d 223; Mortenson v. Pacific Far East Line, Inc., D.C.N.D.Cal., 1956, 148 F.Supp. 71; Babin v. Lykes Bros. S.S. Co., La.App.1957, 94 So.2d 715.
. E. g., Stewart v. Norton, 1951, 6 N.J. 591, 80 A.2d 111; DeCicco v. Marlou Holding Co., E. & A.1948, 137 N.J.L. 186, 59 A.2d 227.
. Greco v. S. S. Kresge Co., 1938, 277 N.Y. 26, 12 N.E.2d 557, and cases collected in 115 A.L.R. 1020.
. Torts, Restatement, §§ 340, 343; Ambrose v. Moffat Coal Co., 1948, 358 Pa. 465, 58 A.2d 20. McCreery v. Westmore-land Farm Bureau Co-operative Ass’n, 1947, 357 Pa. 567, 55 A.2d 399.