(dissenting).
I have had occasion recently to express my concern at a growing tendency in this court to upset awards in jury cases. See Kermarec v. Compagnie Generale Transatlantique, 2 Cir., 245 F.2d 175. Today’s decision continues that trend, adding some new curiosities. Thus my brothers find reversible error in the trial judge’s failure to give a particular requested charge, but they never quote the request or the charge actually given. They next repudiate any suggestion that they would use the anachronism of “assumption of risk,” whose shifting meanings we recently discussed in Sanderson v. Berkshire-Hathaway, Inc., 2 Cir., 245 F.2d 931. But their result in substance rests on that analysis ; they support their decision by cases turning on that doctrine; and the error which they find is a failure to instruct the jury on that doctrine. Lastly, their general discussion seemingly points to a directed verdict for the defendant until they ultimately shy from so drastic a ruling and rest the forced retrial upon the judge’s rejection of what is, to say the least, a highly dubious formulation of law. I do not find in all this a sound reason for disturbing the jury’s verdict and the court’s judgment.
Turning to the crucial issue, there was a factual dispute concerning the relative safety of the route which the plaintiff took and a hypothetical route which the defendant claimed he might have taken. The plaintiff contended his route was safer and shorter; the defendant denied these facts. This comparison of routes affects four possible issues in the case: (1) the defendant’s negligence; (2) unseaworthiness; (3) plaintiff’s contributory negligence; (4) plaintiff’s assumption of risk. The trial judge, after a judicious, if lengthy, exposition of the pleadings and the evidence, went on to charge the jury as follows:
“Well, these are the issues of fact: It is for you to say whether there was grease in the passageway at the time that the plaintiff fell; whether he fell in the manner in which he did say he fell; whether the illumination was on or whether there was no illumination of that passageway.
“It is the duty of the vessel, among other duties, in respect to this passageway at least, it is the burden imposed by law on the vessel, to make it seaworthy.
“Now, what does seaworthy mean in this case? Seaworthy applied to this case means that that passageway must be reasonably safe for the purpose for which it was intended. Consequently, you have to determine whether it was so, or whether there were other acts of negligence which precipitated this accident.
“Now, in determining liability, there can be no liability imposed on the defendant unless the plaintiff has established to your satisfaction the essential allegations of his complaint. If you find that the plaintiff has done that, then you approach another subdivision of the matter of liability, and that is whether the plaintiff was guilty of contributory negligence.
“The defendant says he was. Of course, the burden is on the plaintiff to show that he was free from contributory negligence. As I re*562call, the plaintiff said that hi: had gone over this passageway before and that he had noted the grease spots. Knowing that, should he have been more careful on his return than he was?
“The defendant urges that if the plaintiff knew there were grease spots on the port side in the passageway leading to Hatch 3, why, he should have used the starboard; to which the plaintiff responds that that would not have been a wise move because the unloading was in progress to the shore, the winches were in operation and that the unobstructed passageway was on the port side.
“If you should find that the plaintiff contributed to the happening of the accident by his own negligence, that is, after having first found the defendant is liable, if you should so determine, then, from any award you might otherwise give the plaintiff, you have to deduct whatever percentage of negligence the plaintiff is guilty.”
It is clear from his charge that the judge made the following assumptions of law: (1) that there was no need to charge as to the defendant’s negligence, since unseaworthiness provided a route to recovery, with fewer elements to prove; (2) that the failure to light the port passageway and to keep it clean from grease was ground for recovery if it rendered it less than reasonably safe for its intended purpose; (3) that the plaintiff’s alleged choice of a more dangerous route went only to reduce the amount of recovery under the doctrine of contributory negligence; (4) that assumption of risk was not apposite on these facts. I agree with all four conclusions. My brothers do not discuss the charge explicitly, but their discussion shows that they quarrel with the second conclusion and accept the others.
My brothers reverse because, as they say, the trial judge refused to charge that the plaintiff “was not entitled to any recovery if he voluntarily chose to use a passageway known by him to be unsafe and if there was another available passageway known by him to be safe.” The charge actually requested was this:
“12. Even if you should find that Mr. Palermo was hurt because the passageway on the port side of the deck housing was unsafe and that the unsafe condition caused the ship to be unseaworthy or resulted from the negligence of the Steamship Company, I charge you as a matter of law that Mr. Palermo is not entitled to any money from the defendant if there was a safe passageway on the starboard side of the deck housing which he could have used and if Mr. Palermo knew or ought to have known that fact and nevertheless voluntarily chose to use the port passageway.”
This proposed instruction stated the law incorrectly and there was no error in rejecting it. First, the instruction was an attempt to introduce assumption of risk into the case. It makes no sense any other way. For if its theory was contributory negligence, it wrongly allowed the jury to defeat all recovery, instead of merely reducing it. If its theory was to provide a particular application of negligence or seaworthiness, it was confusing, for it started from the premise that the jury had already resolved these issues in favor of the plaintiff. It thus forces a compulsion of choice on the plaintiff which neither the facts nor the law justifies.
The charge is further quite objectionable in its assumption that the defendant could in no event owe any higher duty to the plaintiff than to warn him of the danger in the port passageway. The majority cite the concurring opinion in Lynch v. United States, 2 Cir., 163 F.2d 97, 99, for the proposition that it may be negligent not to warn of the dangerous passage; but neither that case nor any other case cited to us holds that the duty of reasonable care is always satisfied by a mere warning. Often, where the continued presence of the peril *563serves no important useful purpose to the defendant and the cost of removing the peril is small, a reasonable man will remove the danger, and not just warn of it. This is a perfect example of such a situation: How simple it would have been to replace the burned-out light bulbs, wipe up the grease, and prevent this accident!
Until now I have assumed with my brothers that the liability of the shipowner for unseaworthiness is identical with his duty to use reasonable care to keep the vessel reasonably safe for invitees, but of course this is not so. Seaworthiness is a higher standard, as the court below understood. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 90 L.Ed. 1099. The defendant would not be liable under notions of negligence for a dangerous patch of grease or burned-out bulbs until it should have discovered and repaired them, but its liability for unseaworthiness arose almost as soon as the defects occurred. Poignant v. United States, 2 Cir., 225 F.2d 595; Grillea v. United States, 2 Cir., 232 F.2d 919; Williams v. Tide Water Associated Oil Co., 9 Cir., 227 F.2d 791, certiorari denied Tidewater Associated Oil Co. v. Williams, 350 U.S. 960, 76 S.Ct. 348, 100 L.Ed. 834. The duty to keep stairs and passageways seaworthy is not satisfied by warning the users of defects and allowing them to find alternative routes. See Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 234 F.2d 253, 258.
The only ease cited by my brothers in which the presence of a better alternative route defeated recovery for unseaworthiness is the unappealed lower court decision, Manera v. United States, D.C.E.D.N.Y., 124 F.Supp. 226, involving two ladders into a hold, one of which was without an upper section. The plaintiff fell off the short ladder and recovery was denied, inter alia, because he should have used the safer ladder. But that case reveals a critical factual distinction: the ladder from which the plaintiff fell, while it w~as less safe, was nevertheless “seaworthy”; it had been necessary to remove its upper section to make room for cargo in the ’tween deck. It was in its normal condition when plaintiff injured himself by using it improperly. In the instant case the grease and burned-out lights on the port passageway were not deliberate alterations designed to make the vessel perform its function better, but were defects of no use to the ship and of great danger to its crew. See Long v. Silver Line, 2 Cir., 48 F.2d 15.
Thus the decisive issues of fact were left to the jury under a proper and appropriate charge. Its decision for the plaintiff should stand.