dissenting:
My dissent derives from a very simple proposition. As the distinguished Professor Moore has pointed out, the provisions of the Federal Rules of Civil Procedure “are to be observed by all.” 2 Moore’s Federal Practice ¶ 1.13[1]. By the same token all of “the provisions of the rules are to be observed.” *950agree that it would have been the accurate statement of the law, rather than the charge of “evidence of negligence,” Which the district judge gave.
.Yet the reasons advanced by the lawyer for the plaintiff, at the time of discussion between court and counsel of jury instructions, were inadequate, unhelpful, and, indeed, misleading. The unadorned statement, neither amplified nor explained, was made that maritime law prevails.1 Accepting that statement to be true and giving no weight to the established rule that the applicable maritime law has opted to borrow its substance in cases of the kind with which we here deal from land-based negligence, the fact remains that classification of the law as “maritime” does nothing to resolve the question of whether a rule of negligence per se or a rule of evidence of negligence is the applicable one.2
The very fact that of my colleagues three (Judge Russell, Judge Widener, and Judge Hall), together with our distinguished companion, Judge Haynsworth, whose recent acceptance of senior status rendered him ineligible to vote in the en banc rehearing, were convinced that, under maritime law, the facts of the present case called for an evidence of negligence instruction rather than an instruction of negligence per se demonstrates convincingly that the answer in no way depends on the irrelevance of classification of the law as maritime.
It is to be remembered that, prior to the 1972 amendments in the Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”), the true maritime negligence doctrine rarely had occasion to surface in situations like the one here confronting us because a plaintiff covered by LHWCA and suing the vessel on a third-party negligence basis was able to proceed on the liability-without-fault approach of unseaworthiness. Negligence for maritime law purposes was a rarity.
As it happens, though it is just as irrelevant looked at from the opposite side, the few cases which were decided under the maritime law of negligence made the standard of negligence one of evidence of negligence and not one of negligence per se. Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 136, 138 (5th Cir. 1964) (with respect to Coast Guard regulations, the Court ruled that noncompliance was not negligence per se. “But this determination that negligence per se does not here apply does not mean that the regulations have no relevance at all in a negligence action.” The judge’s advice to the jury “would include, as a minimum, a positive declaration that the regulations do prescribe a standard of care, and, since this is not a per se situation, the jury could take the standard of care into account in determining whether this Shipowner in these circumstances was guilty of negligence.”).3
*951Marshall made it perfectly clear that the choice between the two negligence standards should be made on a case-by-case basis. Id. at 136:
It is perfectly obvious, therefore, that we cannot, we do not, undertake to categorize any of the regulations other than this one on cotton bales (46 C.F.R. § 146.27-25(b)) as per se or non-per se.
Beyond blurting out the term “maritime” in circumstances where it afforded no enlightenment whatever, the plaintiff simply cited three cases. Two of them were third party negligence actions by persons covered by LHWCA instituted prior to 1972, i. e., when unseaworthiness was still an available grounds for recovery rendering negligence irrelevant. Chief Judge Winter himself in his dissenting panel opinion recognized the cases as “inapposite.”
The third ease cited, Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), did not concern a plaintiff like Duty, who first had recovered workmen’s compensation under the LHWCA, and subsequently was reaching out for an additional recovery through a third party action against the owner of the vessel. Rather, it was brought by the widow of a seaman for whom no workmen’s compensation remedy was provided by law. The only available recovery was for negligence. However, the negligence was not of the usual “land-based” variety. The Jones Act, 46 U.S.C. § 688,4 had adopted by reference the Federal Employers’ Liability Act (“FELA”). The FELA, in turn, operated in circumstances where there was no workmen’s compensation to insure relief for job-related injuries irrespective of fault. To avoid the spectres of employees going altogether uncompensated, although they were the inevitable victims of the industrialization of society, the FELA has been, and, at the time of decision in Kernan, had been construed to the point where it was virtually equivalent to a workmen’s compensation act setting minimal requirements of proof in order to establish “negligence” which would not have sufficed under otherwise generally applicable negligence standards. As the Supreme Court pointed out in Kernan, supra, 355 U.S. at 431-32, 78 S.Ct. at 397-98:
The question for our decision is whether, in the absence of any showing of negligence, the Jones Act — which in terms incorporates the provisions of the FELA— permits recovery for the death of a seaman resulting from a violation of a statutory duty. We hold that it does.
. . . Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the “human overhead” of doing business. For most industries this change has been embodied in Workmen’s Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. (Emphasis supplied.)
Consequently, the Jones Act case of Kernan was altogether “inapposite,” too, as au*952thority for the situation in which someone had already recovered workmen’s compensation under the LHWCA and was now seeking a third party separate, distinct, and additional negligence recovery, not under the Jones Act and the FELA, but rather on the theory of land-based negligence divorced from any maritime concept encrustations.
Therefore, no adequate grounds for the objection to the “evidence of negligence” instruction were given. Substantially, the “reasons” were no reasons at all. There are, of course, readily available sources, the Restatement Torts, Second, § 286, cited by Judge Winter in his panel dissent, in particular, which could have been cited as adequate “grounds of his objection.”
Federal Rule of Civil Procedure 51 precludes a party’s assigning as error on appeal the giving or the failure to give an instruction unless he not only “objects thereto before the jury retires to consider its verdict,” but also, in so objecting, states “distinctly the matter to which he objects and the grounds of his objection." (Emphasis supplied.) With respect, the decision of the en banc majority obliterates from F.R. Civ.P. 51 the phrase “and the grounds of his objection.” See authorities gathered in my panel opinion, 660 F.2d 933, 941 (4th Cir. 1981), especially 9 Wright and Miller, Federal Practice and Procedure, § 2254: “A party may not state one ground when objecting to an instruction and attempt to rely on a different ground for the objection on appeal . . .. ”
The wisdom of the Rule’s requirement that there be stated “the grounds of his objection” and the corresponding unwisdom in the majority’s excusing the plaintiff here from the responsibility to state adequate grounds are made manifest by the circumstances in which the particular instruction came before the district court.
Counsel for the plaintiff had included in his complaint the language5 which the Advisory Committee on the Federal Rules had adopted as the indicator that the plaintiff wanted not to pursue his case on a theory of diversity jurisdiction but rather on admiralty jurisdiction grounds (with the consequent avoidance of a jury trial).6 Distinguished counsel for the plaintiff’s employer, the joint venture, Raymond-Kiewitt-Tidewater, who was interested in realizing under its lien on any recovery against the owner of the tender up to the amount of its LHWCA payment, obviously recognized the contradictory character of the plaintiff’s pleading.7
*953Thus, the plaintiff had to fight off the onslaught which was actually of his own making against his right to a jury trial secured by diversity jurisdiction. See Kermerac v. Compagnie Generate Transatiantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). He ultimately succeeded, but undoubtedly did so only by virtue of emphasizing that “Judge, it’s a diversity, not a maritime, theory on which I am proceeding.” Having won that engagement, he contributed to the district judge’s mindset which led the judge to the wrong conclusion that, it being a diversity action, the negligence law of Maryland should apply. Yet that judicial error is especially excusable where the judge first observed counsel describe the proceeding in his complaint as “maritime” then cry out “My theory is diversity, not maritime.” Suddenly he is confronted with the same counsel saying “My proceeding is maritime, not diversity.”
Given those vacillations, it was incumbent on counsel for the plaintiff to state the correct grounds of his objection, namely, not simply that the law was derived from maritime sources, but rather what sources of land-based negligence (here the Restatement of Torts, Second, § 286) best outlined the reasons why a negligence per se instruction would be preferable to an evidence of negligence instruction in this particular maritime claim.
With respect, I see nothing in Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), which cuts away from the clearly established concept described in detail in the panel majority opinion that, while the law is maritime in character, the maker of maritime law, the Congress, has elected substantively to adopt land-based concepts of negligence divorced from concepts applicable for other purposes under the maritime law. Scindia recognizes that such is the case (n.14: “.. . the legislative history suggests that the shipowner’s liability is to be judged by land-based standards....”; n.13: the Supreme Court quotes with no apparent disapproval the legislative history to the effect that “the purpose was to place the injured longshoreman [or harborworker] in the same position he would be if he were injured in non-maritime employment ashore” and that negligence of the shipowner could be proved only if it was shown “to have acted or have failed to act in a negligent manner such as would render a land-based third party in nonmaritime pursuits liable under similar circumstances”). Scindia merely reaches the obvious conclusion that, while the Restatement is a most estimable source, it is not invariably the correct or applicable one.8 Sometimes other sources of the correct land-based concepts must be found. Scindia is an example.
The en banc majority decision reaches, in my humble judgment, far beyond the proper limits of the principle that serious errors in jury instructions may merit reversal and a new trial. For that extreme relief signals a consequent incremental burden for a system already at full strain. While the rules of “evidence of negligence” and “negligence per se” differ in some conceptual particulars, there is nevertheless a great degree of practical overlap. That is so much the case here that the reversal and grant of a new trial amount to allowing a delinquent plaintiff, who forfeited his right to a new trial through noncompliance with Rule 51, the benefit of a second shot because of the residual paper-thin sliver of light attributable to the fact that the eclipse of “negli*954gence per se” by “evidence of negligence” is only 90% and not total.
In my view, with the adoption of the en banc opinion, the Court has sounded the death knell of the five words in F.R.Civ.P. 51: “and the grounds of his objection.” It is for that reason that I respectfully dissent.
. Counsel’s words were:
Your Honor, we have one exception and that would be with respect to the failure to grant what has been marked as Plaintiffs request for Instruction No. 12. The basis for the exception is that it is the Plaintiffs position that, although in the complaint no specific reference was made to Rule (9)(h), that the Plaintiff has provided in the first cause of action a diversity claim based upon the savings to suiters clause and that it is a maritime claim, which would make the maritime law applicable. The incident occurred on navigable waters and it’s our position that the maritime law would apply.
Accordingly, the Provenza and Venable cases which have been cited, along with the Kernan case, would require an instruction that a violation of the Coast Guard regulation would be negligence per se as opposed to being evidence of negligence and that if the jury were to find that as a proximate result of that violation, the Plaintiff was injured, then it is negligence in and of itself. That would be—
. It would have been no more satisfactory had the plaintiffs counsel merely said “land-based.” Neither descriptive tag afforded an answer as to which was the proper instruction. Under “land-based,” or under “maritime,” law, whether activities of a defendant would constitute “negligence per se” or “evidence of negligence” would depend on the particular circumstances and on aspects of the law of negligence as to which plaintiffs counsel cast no light whatsoever. He did not so much as allude to their existence.
. To like effect is Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438, 445-46 (9th Cir. 1979) (“The designing of a 20-30 foot deck load of logs without adequate safeguards at the sides could well have been viewed as evidence of negligence under the law as it existed prior to 1972.... Here, the trial judge did not in*951struct that Mammoth was negligent as a matter of law in failing to comply with the regulation. He submitted the regulation to the jury, along with all other evidence, so that the members might determine whether Mammoth was guilty of negligence. This would be the proper course to follow under all of the pre-1972 cases on the subject.”). (Emphasis in original.)
. Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
. “This cause of action arises under the General Maritime Law of the United States as hereinafter more fully appears.”
. Harrison v. Flota Mercante Grancolombiana, S. A, 577 F.2d 968, 986-87 (5th Cir. 1978):
For example, a longshoreman’s claim for personal injuries . .. may be asserted in a suit in admiralty or, if diversity of citizenship exists, in a civil action. One of the important procedural consequences is that in the civil action either party may demand a jury trial, while in the suit in admiralty there is no right to jury trial except as provided by statute. .. . The unified rules must therefore provide some device for preserving the present power of the pleader to determine whether these historically maritime procedures shall be applicable to his claim or not; the pleader must be afforded some means of designating his claim as the counterpart of the present suit in admiralty, where its character as such is not clear.. . . Other methods of solving the problem were carefully explored, but the Advisory Committee concluded that the preferable solution is to allow the pleader who now has power to determine procedural consequences by filing a suit in admiralty to exercise that power under unification, for the limited instances in which procedural differences will remain, by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim, (emphasis added [by Court]).
. It is ironic that counsel for the employer should now, in the interest of furthering his client’s position, seek to muster arguments to support the adequacy of the presentation by plaintiffs counsel, in light of what his firm argued below. Counsel for the employer qualifies in wisdom, if not in age, as a Nestor of the Baltimore admiralty bar.
His firm, having, in its Intervening Complaint, asserted that the claim was an admiralty or maritime claim, contended that the owner of the tender, having admitted the allegation, had pleaded itself out of any right to a trial by jury, F.R.Civ.P. 9(h) and 38(e) specifically so providing.
. Specifically, a land-based rule which also incorporates concepts of contributory negligence or of assumption of risk would not be satisfactory since those concepts have no part to play in third party actions under LHWCA, 33 U.S.C. § 905(b). Present in the Restatement rules considered in Scindia, and, therefore, making them inappropriate in that particular case, those concepts of contributory negligence and assumption of the risk were totally uninvolved insofar as “negligence per se" and “evidence of negligence” were concerned. Thus reference to that respected source of land-based negligence, the Restatement, in the instant case would in no wise be precluded by anything said in Scindia.