(dissenting) :
This is one more case where the unloading of a vessel was turned over to a stevedore whose negligence injured a longshoreman, and a court goes to unrealistic lengths to find unseaworthiness, knowing full well that the ship will escape scot-free and that, as is strikingly illustrated by the final point in the opinion, her only role is as a conduit to impose on the stevedore a liability exceeding what Congress made exclusive by § 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905. If compensation to longshoremen needs to be liberalized, Congress should say so; in the absence of controlling Supreme Court decisions, not present here, inferior federal courts should bend their efforts to effectuating the Congressional purpose rather than to its further erosion. See Lucas, Flood Tide: Some Irrelevant History of the Admiralty, 1964 Supreme Court Review 249, 260.
Nothing in the record, in the findings, or in common sense tells me that a 30-35 foot portable ladder weighing 50 pounds is too light for its purpose. I should suppose one requisite of a portable ladder is that it be portable; if it weighed too much for convenient carriage, the ship would risk being cast as unseaworthy on that score. The photographs offered by libelant showed that the ladder had rubber feet; there is nothing to negate this or to prove that they were worn or otherwise defective, or that “they were not working effectively” — save in the sense that in fact they did not prevent the unattended ladder from falling. Neither do *40I see any support for a view that although the ladder may have been all right in general, conditions made it unsuitable at the time of Reid’s injury. The record does not disclose the exact length of the ship but on one of any size the departure from level caused by her being 4 feet down at the stem — a rather common phenomenon — would be small indeed, and a wind of 14 miles per hour, not even a “fresh wind” on the Weather Bureau’s scale, scarcely creates a situation of peril.
If there were any requirement for shackling portable ladders, the ship’s obligation would be to have shackles available, not to see that they were used by those whom she has hired to load her, see Ezekiel v. Volusia S.S. Co., 297 F.2d 215, 91 A.L.R.2d 1013 (2 Cir. 1961), cert. denied, Pinto v. States Marine Corporation of Delaware, 369 U.S. 843, 82 S.Ct. 874, 7 L.Ed.2d 847 (1962); and there is no evidence that the ship or the stevedore did not have whatever ropes or chains were needed if the stevedore wanted them. However, I need not rely on that point, since my brothers concede that a portable ladder can be perfectly well secured by human means if the humans stay on the job, and the captain, as the judge found, had instructed that the ladder was never to be used without someone holding it. The conclusion of unseaworthiness thus rests on the unsafe condition, a few seconds in duration, created by a co-worker’s leaving the ladder momentarily unattended, in breach of the captain’s instructions. This is a perfect case for following the distinction drawn by Judge Learned Hand in Grillea v. United States, 232 F.2d 919, 922-923 (2 Cir. 1956) and our decision in Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752 (2 Cir.), cert. denied, 371 U.S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962) — neither of which has been cast in doubt by any decision of the Supreme Court. True, there can be no certainty as to the location of the “line between situations in which the defect is only an incident in a continuous operation, and those in which some intermediate step is to be taken as making the ship unseaworthy,” 232 F.2d at 922; and “logical coordinates for fixing” it “are entirely lacking,” 303 F.2d at 757 (concurring opinion of Judge Hays). But courts ought not be astute to push the line in a direction which frustrates the purpose of Congress to establish an absolute but limited liability of stevedores to their employees — the legal regime applied to the great bulk of American working men — and gives a longshoreman, if his injury happens to occur on shipboard or from some contact with the ship, an additional unlimited liability for what any layman would readily identify as simply a negligent act of the employer.
Reid’s libel should have been dismissed and he should be left with the remedy against his employer that Congress thought appropriate.