dissenting.
While petitioner was working on a barge loading, cargo into a hatch of the. ship, he was injured as a result of the negligent operation of a winch. The winch was part of the ship and the winch operator was a member of the crew of the stevedores. The injury was caused by a lowering of a sling, which carried the cargo, too quickly and too far.
Prior to the 1970 Term the judgment denying recovery would have been reversed, probably out of hand. We held in Mahnich v. Southern S. S. Co., 321 U. S. 96, that the obligation of an owner to furnish a seaworthy ship extends to seaworthy appliances. We also held that the owner was not insulated from liability by the “negligent failure” of his officers or members of the crew to furnish seaworthy appliances. Id., at 101. In Mahnich, the staging from which the seaman fell was án unseaworthy appliance because of the defective rope with which it was rigged. There was sound rope on board but defective rope was used. The fact that the mate and boatswain were negligent in selecting defective rope was held to be no defense.
In Crumady v. The J. H. Fisser, 358 U. S. 423, a winch was not inherently defective as was the rope in Mahnich. But it was used in a way which made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch, “its safety device,” was set at twice that limit. Id., at 427. And so the rope sling broke and injured the seaman. The vessel which paid the damages was allowed to recover over from the stevedores whose negligence with the winch made the vessel pro tanto unseaworthy.
In Mascuilli v. United States, 387 U. S. 237, negligent use of a winch in a loading operation so obviously made *502the vessel pro tanto unseaworthy that we reversed out of hand a judgment of ho liability, citing Mahnich and Crumady.
What we said in Mitchell v. Trawler-Racer, 362 U. S. 539, 550, about the “complete divorcement of unseaworthiness liability from concepts of negligence” related to a condition which made the vessel not “reasonably suitable for her intended service.” Yet alongside that con.ventional type of unseaworthiness there developed the concept of unseaworthiness resulting from operational negligence.
Indeed, the doctrine of operational negligence which causes unseaworthiness has had a sturdy growth. Chief Justice Stone, writing for the Court in Mahnich, showed that this doctrine goes at least as far back as The Osceola, 189 U. S. 158, decided in 1903. See 321 U. S., at 101-104. The intervening decision of Plamals v. Pinar del Rio, 277 U. S. 151, which looked the other way, was decided dn 1928. It was around that case that Justices Roberts and Frankfurter turned their dissent, saying that unless the Court followed precedent “the law becomes not a chart to govern- conduct but a game of chance; instead of settling rights and liabilities it unsettles them.” 321 U. S., at 112. They added:
“Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy.” Id., at 113.
Justices Roberts and Frankfurter bitterly expressed that view in Mahnich when Pinar del Rio was overruled— a freak decision not in keeping with the mainstream of the law that had come -before.
Changes in membership do change decisions; and those changes are expected at the level of constitutional law. But when private rights not rooted in the Constitution *503are at issue, it is surprising to find law made by new judges taking, the place of law made by prior judges.
Up to today operational negligence has been one sturdy type of unseaworthiness.* I would let it continue as the prevailing rule unless Congress in its wisdom changes it.
Mr. Justice Harlan,dissenting.
Past decisions of this Court have expanded the doctrine of unseaworthiness almost to the point of absolute liability. I have often protested against this development. See, e. g., the cases cited by the Court, ante, at 497 n. 6. But I must in good conscience regard the particular issue in this case as having been decided by Crumady v. The J. H. Fisser, 358 U. S. 423 (1959), even if prior de*504cisions did not inexorably point to that result. As my Brother Douglas states, Crumady cannot justly be distinguished from the case before us. Much' as I would welcome a thoroughgoing re-examination of the past course of developments in the unseaworthiness doctrine, I fear that the Court’s action today can only result in compounding the current difficulties of the lower courts with this area of the law.
The Second Circuit adopted the view that while one act of operational negligence would not make a vessel unseaworthy, unseaworthiness did result if the negligent act was incident to a continuous course' of operation as where a wrong hatch cover was used, Grillea v. United States, 232 F. 2d 919, but not by an isolated act as where a boom was carrying a dangerous stress due to a negligent act. Puddu v. Royal Netherlands S. S. Co., 303 F. 2d 752. The difference in the two cases was stated as follows:
“A ship is not unsea worthy because it has'glass in a window which might be broken. The injuries of a seaman who negligently breaks such a glass are not "the result of unseaworthiness, nor are the injuries of a seaman who is cut by the falling glass. But injury incurred in stepping on the broken glass does result from unseaworthiness.” Id., at 757.
The Second Circuit, however, refused to follow Grillea after our Mascuilli decision. Candiano v. Moore-McCormack Lines, 382 F. 2d 961; Alexander v. Bethlehem Steel Corp., 382 F. 2d 963; Cleary v. United States Lines Co., 411 F. 2d 1009; Tarabocchia v. Zim Israel Navigation Co., 417 F. 2d 476: The Fourth Circuit followed suit. Venable v. A/S Bet Forenede Dampskibsselskab, 399 F. 2d 347; Lundy v. Isthmian Lines, 423 F. 2d 913.
Only the Fifth Circuit in the instant case and in Grigsby v. Coastal Marine Service, 412 F. 2d 1011, and. the Ninth in Tim v. American President Lines, 409 F. 2d 385, stood against the rule of Mascuilli.