(concurring).
On the negligence issue, the judge, at defendant’s request, charged, “It is enough if the steps and paint are commonly used and accepted in the industry at the time.” This was as obvious an error, on a material matter, as one can imagine. For the Supreme Court, this court and others have often held that usual practices, by others in the same industry or trade, similar to a defendant’s practices, do not constitute a defense in a negligence action.1
*261My colleagues indicate that, were it not for our reversal on the unseaworthiness issue, they would probably have disregarded this error. I cannot agree. My colleagues refer to Rule 51 and the fact that, before the jury retired, plaintiffs’ counsel did not state distinctly that he objected and the grounds of the objection. My colleagues concede that, in an exceptional case, we may review errors not “saved” by a proper objection. They suggest this is not an exceptional case, relying on a statement in United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555. There the Supreme Court, set forth, in the disjunctive, two grounds for reviewing such errors:
(1) “the errors are obvious
or
(2) they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
My colleagues stress the second ground. But the first ground alone suffices, as the cases make clear.2 And here, as observed above, the error was magnificiently obvious. A litigant surely has the right to assume that a federal trial judge knows the elementary substantive legal rules, long established by the precedents, and that therefore the judge will act accordingly, without prompting by the litigant’s lawyer.3
. Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 469, 23 L.Ed. 356; Wabash R. Co. v. McDaniels, 107 U.S. 454, 460-461, 2 S.Ct. 932, 27 L.Ed. 605; Texas & P. R. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905; The T. J. Hooper, 2 Cir, 60 F.2d 737; Brigham Young University v. Lillywhite, 10 Cir., 118 F.2d 836, 840, 137 Á.L.R. 598; Worcester v. Pure Torpedo Co., 7 Cir., 127 F.2d 945, 947; Uline Ice, Inc., v. Sullivan, 88 U.S.App.D.C. 104, 187 F.2d 82, 84.
. See 5 Moore, Federal Practice (2d ed.) 1004-1905, 2503-2504; 6 Id. 3780-3781; Hormel v. Helvering, 312 U.S. 552, 556-557, 61 S.Ct. 719, 85 L.Ed. 1037; Callen v. Pennsylvania R. Co., 3 Cir., 162 F.2d 832, 835, affirmed on other grounds 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242; Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 221, 2 A.L.R.2d 442, certiorari denied 334 U.S. 832, 68 S.Ct. 1346, 92 L.Ed. 1759; Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S.App.D.C. 271, 140 F.2d 13; Rowlik v. Greenfield, D.C., 87 F.Supp. 997, 999-1000, affirmed 3 Cir., 179 F.2d 678.
. Because, usually, the lawyers alas do not have in hand the judge’s charge in writing before he delivers it, they may overlook errors in the charge, until they receive a transcript after the trial is over. This may be especially true if the charge contains an error concerning elementary legal principles which lawyers reasonably assume the judge did not overlook.
Although it is not necessary to sustain my position, I note that particularly here was plaintiff entitled to assume that the judge would pay attention to the le-gaily obvious, since she is a “ward of admiralty,” to the protection of whose interests he should have given unusual care.