(dissenting).
I agree with so much of my brothers’ opinion as holds that there was an eleetion to sue in rem. I am unable to agree-with.their decision on the merits.
The libel charged that Grillea was injured by reason of “negligence of the respondents, and the unseaworthiness of' the vessel.” Judge Ryan stated the question of law presented by the case as follows:
“Is the owner of a vessel on bare-boat charter chargeable to a longshoreman with an unsafe condition aboard when that condition arose solely because of the negligent use of the vessel’s appurtenances, where-that negligent use has been by longshoremen who have come aboard by employment of the bareboat charterer?”
He found as facts that safe and adequate-hatch covers were provided by the shipowner and that the unsafe condition “arose solely by reason of the negligent handling of these otherwise safe hatch covers.” My brothers accept these findings of fact and apparently agree with Judge Ryan’s conclusion that the demisor was not liable in personam for the negligence of the longshoremen employed by the demisee. But they hold that the unsafe condition created by such negligence rendered the ship unseaworthy,. even though the misplacing of the hatch board occurred “as an incident in a continuous course of operation” in which the-plaintiff and his fellow longshoremen were engaged, namely covering the hatch.. The long recognized distinction between injuries caused by unseaworthy gear and. injuries caused by improper use of proper gear has not, in my opinion, been completely wiped out by the Supreme Court decisions in Sieracki and Petterson. It has recently been applied by this, court and by the Ninth Circuit. Berti v. Compagnie de Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397; Manhat v. United States, 2 Cir., 220 F.2d 143, cer*925tiorari denied 349 U.S. 966, 75 S.Ct. 900, 99 L.Ed. 1288; Freitas v. Pacific-Atlantic S. S. Co., 9 Cir., 218 F.2d 562, 564. Under the facts found by Judge Ryan I think that those cases are applicable to the case at bar and that the decree should be affirmed.