(dissenting in part).
I concur in holding McAllister liable to the plaintiff, for it is evident that the plaintiff was injured because of unseaworthiness resulting from improper stowage of cargo aboard the Tyler. But I disagree with the decision which absolves Clark, the loading stevedore, from the liability placed on it by the district court to indemnify McAllister for the damages recovered by the plaintiff. To render Clark liable, under the tests stated in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, the record must support two critical findings establishing breach of its implied warranty of workmanlike service for proper loading and stowage. First, it must be shown that Clark improperly loaded the cargo which the plaintiff mounted during the unloading operations. Second, the plaintiff’s injury must have been a foreseeable result of the improper stowage. But the evidence seems to me quite adequate to support these findings, and I perceive no sufficient basis to reverse the judgment entered below against Clark.
The crated cargo which Clark loaded aboard the Tyler consisted of automobiles (214 tons per crate), automotive parts (1,165 pounds), a diesel engine (214 tons), and textile machinery (2% tons per crate). It is unquestioned that on the day of the accident these crates were too close together to permit the stevedores to unload them without mounting the uppermost ones and separating them with a crowbar. The record amply shows that the proper way to load such crates is to leave a space between them sufficiently large to allow for the introduction of hoisting slings. The question is, therefore, whether Clark was responsible for this patently improper stowing.
Two factors support the affirmative conclusion reached by this experienced trial judge. First, we may presume, in the absence of contrary evidence, that heavy crates, otherwise properly loaded, *302do not shift when placed on the deck of a lighter. The normal presumption is that a condition found to exist at a certain point in time existed in a similar fashion at a prior time unless contrary-evidence is adduced to show the likelihood of change. Berwind-White Coal Mining Co. v. City of New York, 2 Cir., 48 F.2d 105, 107. True, the facts in that case differed from those present here; but as we said there, “Such is the general inference, the strength of which is dependent upon the particular circumstances of the case and the likelihood of the duration in the past of a state of facts found to be existing at present.” Here the inference is strong. Although some thirty-eight hours passed between the loading and unloading of the cargo, the Tyler remained moored at the pier and in the North River for a major portion of that time, and eventually it was towed only a relatively short distance to another pier on the same river. The significant fact is that the crates were particularly heavy. It is most unlikely that they would shift position in the absence of heavy weather conditions or some unusual occurrence, none of which have been shown. As the opinion demonstrates, it is entirely possible to speculate on factors which might have caused movement. But in the posture of the case I believe that Clark, in order to avoid liability, should have shown facts from which it could have been reasonably inferred that the crates shifted after loading. My brothers stress that the Tyler was under the control of McAllister during the period prior to unloading, and that therefore it should be charged with the burden of proving that no unusual circumstances occurred which would account for shifting. But Clark loaded the vessel, and if its men did their jobs properly it certainly should have been able to produce at least one witness to testify to this fact. At the trial, however, Clark failed to produce such a witness.
The second factor of importance was the testimony of the Tyler’s captain, Lars Larsen. My brothers characterize his answers to questions relating to the stowage as general, rather than specific, thereby suggesting that Captain Larsen was speaking about his general experience with stevedores, and not about what occurred on the specific day in question. I do not believe that conclusion is supportable. At worst the witness’ testimony was ambiguous; we are not in a position to say that the district judge who heard it, and specifically relied on it. in support of his findings, was incorrect. The witness may well have communicated' his exact meaning by gesture or expression. There is always danger in interpreting the subtleties and nuances of testimony simply by examining a cold record. Here a judge of vast experience observed the witness and had no difficulty understanding his meaning. I am willing to rely on his conclusions. Moreover, on cross-examination the following testimony was elicited from Larsen:
“Q. Captain, when the discharging of your lighter was started on February 15, 1956, will you state-whether or not the cargo on your lighter was in the same condition, as it was when loaded on your lighter at Pier 92? A. Yes, it was in. exactly the same condition; nobody touched it.”
Although the word “condition” is somewhat indefinite, it seems clear that in this context Larsen was speaking about the position of the cargo, for there was no. claim in the case for damage to cargo.
The resolution of the second issue-raised here — whether the plaintiff’s injury was a foreseeable result of the improper stowing — depends in large part, on the importance attributed to the “intervening” event which is said to break the causal relationship between Clark’s, dereliction and the plaintiff’s injuries.. The majority suggests that tort theories-of liability are inappropriate here and' that “[u]nder the general test of foreseeability applied to contractual liability, the breach must have been the cause of' the injury.” Although this might betaken to mean that the test of “cause” applicable in actions for the breach of' consensual obligations differs from that. *303normally applied in negligence situations, it would seem apparent from an examination of cases involving the breaches of implied warranties that the tests are essentially the same. See 2 Harper & James, The Law of Torts, §§ 28.16 et seq. (1956).
Here it is suggested that the plaintiff’s fall was “caused” by defects in the crate, and not by Clark’s improper stowing. But this means no more than that my brothers think Clark could not foresee that its negligent stowing would cause injury to a workman in the manner here disclosed. If the plaintiff had fallen because of a gust of wind, a ripple in the tide, or, as my brothers suggest, while climbing up the crates, Clark would be liable, for concededly these events are reasonably foreseeable risks from loading the crates too close together. But is it any less foreseeable that the crates the workman will be forced to climb might have latent defects, or might not support a heavy person, or might have nails protruding from them? I think not. Moreover, it was Clark’s negligence which required the plaintiff to mount the crates, where he was vulnerable to injuries from falling. That the accident occurred because of a hazard for which Clark was not responsible should not insulate it from liability. As the district court aptly said, Clark “set the stage for what subsequently occurred.” D.C.S.D.N.Y., 158 F.Supp. 326, 331. The presence of a reasonably foreseeable hazard ought not to absolve it from its responsibilities. Hence I would affirm the reasoned decision below.