(concurring specially) .
This case went off on a motion to dismiss the shipowner’s libel in personam. I agree that the cause should have been tried and the facts developed in order that a complete picture of the situation be obtained, and accordingly that the judgment of dismissal should be vacated and the matter remanded for trial.
There is strong intimation in the libel that the death of the longshoreman employed by the stevedoring company may have been proximately due to a bent and defective winch handle which was part of the loading gear provided by the shipowner. Thus the suit may ultimately prove to be within the rule of Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 283, 72 S.Ct. 277, 96 L.Ed. 318.
There is one further matter on which I reserve judgment. If there had been a contractual relationship between the shipowner and the stevedoring company, the Longshoremen’s and Harbor Worker’s Act would not preclude indemnity over. But to my mind there is a serious question whether the lack of such contractual relationship would not preclude indemnity, since the sole duty of the stevedoring company, arising under § 5 of the Longshoremen’s Act, was not the duty discharged by the shipowner. Compare this court’s discussion in Maryland Casualty Co. v. Paton, 9 Cir., 194 F.2d 765.