(dissenting).
This is another of the several cases before the court at this term putting in issue the question of a vessel’s unseaworthiness as a basis for liability to an injured seaman or longshoreman working upon it. The various panels of the court have been in disagreement on this important issue and, in this writer’s view, some have shown an unwillingness to accept the Supreme Court’s present conception of unseaworthiness. See, as upholding denial of liability, Pinto v. States Marine Corp., 2 Cir., 296 F.2d 1, 8; Hooper v. Terminal S.S. Co., 2 Cir., 296 F.2d 281; Ezekiel v. Volusia S.S. Co., 2 Cir., 297 F.2d 215; and the present case; and as reversing such a holding below, Van Carpals v. S.S. American Harvester, 2 Cir., Dec. 13, 1961, rehearing denied Jan. 10, 1962, 297 F.2d 9, and Massa v. C. A. Venezuelan Navigation, 2 Cir., 298 F.2d 239. In order to avoid discrimination and unfairness among litigants because of differing views among panels we should make an attempt to resolve these differences so far as we can by- consideration in banc. Indeed, this seems really necessary because in the view of at least a vigorous minority of the Supreme Court that Court should not take this class of cases on review. See, e. g., the dissent in Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 429, 79 S.Ct. 445, 3 L.Ed.2d 413. Further, the authority of the Crumady precedent cannot be overlooked; there on closely analogous facts the Court reversed the holding below, 3 Cir., 249 F.2d 818, to hold that the vessel had become unseaworthy through the negligence of the stevedoring company and hence liable to the longshoreman for his injuries.
Plaintiff, a member of a stevedore gang for the unloading of cargo, was injured when one of the booms being used in the operation buckled and fell with its rigging on him. The stevedores were removing a rain tent from the No. 4 hatch of the M/S Helena. Two booms were being used for the operation. The port, or up and down, boom was spotted over the hatch, while the Burton boom was angled out over the dock. Each boom had a winch, and from this winch a cable ran to the head of the boom and thence toward the other boom. These cables (“falls”) were joined (“married”) at a point between the two booms, and at that point a cargo hook was attached. The tent, which weighed 682 pounds wet, was *755attached to this hook. Thus the married falls formed a Y, with the tent and hook hanging from the apex and the heads of the booms at the points. The tent was large for the hatch, and the stevedores, as the court found, negligently failed to bundle it; thus when lifted, it hung down a considerable distance from the center point of the falls.
The method of moving the tent to the dock was apparently as follows: the winch on the up and down boom would be tightened, thus raising the tent from the hatch; following this the winch on the Burton boom would be tightened and that on the up and down boom slackened, so that the tent would be moved out over the side. In the course of this operation it became necessary to raise the unbundled tent rather high to clear the hatch coaming and deck obstacles. As the up and down boom was short relative to the size of the tent, this meant that the internal angle of the V formed by the falls was increased. The district judge found that this resulted in high lining or tight lining the rig; that is, that the internal angle of the falls approximated 180 degrees, so that the two winches could, if they were both tightened, work directly against one another, thus greatly increasing the stress on the booms. He further found that the sole cause of the breaking of the boom was the high lining or tight lining, which put excessive strain on the boom. Since he found that the stevedores who were operating the winches were thus negligent, and their negligence was the sole cause of the buckling of the ship’s gear, which was otherwise found to be in good, serviceable, and workable condition, he held that the Helena was not unseaworthy.
Contrary to these conclusions it would seem, even on the facts as found, that we have here a classic situation of unseaworthiness : a dangerous condition, namely, a tight lined rig which would potentially overstress the boom. This condition led to the boom’s collapse, and thus to plaintiff’s injury. It is true that on the findings this condition was created not by conduct of the shipowner, but by the negligence of the stevedores themselves ; but we have long recognized that this fact in no way reduces the shipowner’s absolute liability. Grillea v. United States, 2 Cir., 232 F.2d 919; Rich v. Ellerman & Bucknall S.S. Co., 2 Cir., 278 F.2d 704. While this condition was a short-lived one, arising only a few minutes at best before the boom buckled, it is nevertheless unseaworthy, for it is now established beyond peradventure that transitory defects such as, for example, slime on a rail or cargo improperly stowed a few moments before the accident constitute unseaworthy conditions. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941; Knox v. United States Lines Co., 3 Cir., 294 F.2d 354 (dictum) ; Holley v. Manfred Stansfield, D.C.E.D.Va., 186 F.Supp. 212.
Of course, were it true that a shipowner must have actual or constructive notice of a dangerous condition before it becomes an unseaworthy one, we might hesitate to declare this rig unseaworthy. But Mitchell v. Trawler Racer, Inc., supra, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, held that notice was not a prerequisite of unseaworthiness, and thus the time during which a condition had existed was irrelevant to the question whether the ship was unseaworthy. Since such notice seems the only basis for those earlier decisions suggesting that a condition had to exist for a certain time before it became unseaworthy, any lines we might now draw based on time would be purely arbitrary. Thus the time should make no difference here. See Knox v. United States Lines Co., supra, 3 Cir., 294 F.2d 354. Compare Titus v. The Santorini, 9 Cir., 258 F.2d 352, a perceptive pre-Mitchell opinion reaching the opposite conclusion because of the time factor. The fact that the boom, found to be in good condition before the start of the married falls operation, buckled as it did rebuts any claim that the rig was reasonably fit for its intended use. Thus I believe that on the facts as found the district court erred in *756holding that the ship was not unseaworthy.
But even if I believed that the time the condition had existed would make a difference in determination of liability, 1 would nevertheless believe that a rehearing is necessary. In the first place the opinion seems to say that if the negligence of the longshoreman alone creates a danger that condition can never be unseaworthy. Thus the panel has overruled sub silentio and without discussion the off-cited opinion of Judge L. Hand in Grillea v. United States, supra, 2 Cir., 232 F.2d 919—an opinion cited with approval by the Supreme Court in Crumady v. Joachim Hendrik Fisser, supra, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413—to adopt a position that Judge Hand in Grillea rejected as erroneous. 2 Cir., 232 F.2d 919, 922. Moreover, the district judge treated the question of unseaworthiness as one of fact, thus going directly against our rulings that unseaworthiness (like negligence) is a question of law. Van Carpals v. S.S. American Harvester, supra, 2 Cir., Jan. 10, 1962, 297 F.2d 9 (rehearing denied); Krey v. United States, 2 Cir., 123 F.2d 1008. Cf. Romero v. Garcia & Diaz, Inc., 2 Cir., 286 F.2d 347, 355, certiorari denied 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860. And the panel seems to agree with the trial judge, for its opinion, too, treats the appeal as raising only questions of fact, not to be reviewed under the rule in McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. A final error that must be noted is that the trial court took the jury’s findings in the case of Ciacci, another longshoreman injured in the present accident, and felt bound to apply here the jury’s special verdict there rendered that the Helena was not unseaworthy. But the stipulation was that the Puddu case was to be tried simultaneously by the same judge sitting without the jury and on the evidence submitted, not that the Ciacci result would control here. Clearly that should be the extent of the stipulation, for the two cases presented several points of dissimilarity, including Ciacci’s active negligence in trying as winchman to raise the unbundled tent. Even though these differences might have a limited effect in law, it would be natural for the jurors to react against a negligent plaintiff. In any event Puddu, whose case was not triable to a jury, was entitled to the independent decision of a judge.
In the analysis I have made above I have confined myself strictly to the findings made below as to the equipment and the actions of the longshoremen and have not gone into other matters, such as the earlier breakdown of the starboard winch that day or the adequacy for the work in hand (notwithstanding the elaborate high-lining theory accepted below) of a short boom incapable of fully raising its load without breaking. For even on the facts as found the conclusion of unseaworthiness is so directly indicated that correction upon rehearing seems imperative. To add to the unreality of the legal situation as now left, it is to be noted that after the trial below another longshoreman, D’Agosta, one of those held to be actively negligent as a winchman, recovered a jury verdict which was upheld by Judge Murphy, the presiding judge. The defendant says, by way of explanation, that there “the facts were oriented to follow the Crumady decision,” which makes the situation more bizarre than ever. If I understand what is meant it would seem that Puddu has lost because of failure of counsel and the court to follow the teachings of the Crumady case. I suggest that it would be difficult to explain to the injured Puddu and his dependents why he failed where an actively negligent associate has recovered. This affords a further and quite practical reason why a rehearing is necessary in the interest of justice.
Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
PER CURIAM.The merits of this appeal were orally argued before a panel of this court on *757December 5, 1961, and the dismissal by the court below of the longshoreman’s complaint was unanimously affirmed on January 3, 1962 by opinion reported at 303 F.2d 752. Thereafter counsel for appellant timely filed an application for a rehearing in banc. On February 20, 1962 this application was denied by the in banc court, 303 F.2d 754, Judge Clark alone dissenting, 303 F.2d 754.
A further request was timely made by appellant for a reconsideration of the denial of his application for rehearing. Judge Clark also requested reconsideration and, on April 9, 1962, this request was granted, four judges, Chief Judge Lumbard and Judges Moore, Friendly and Kaufman dissenting. Leave was granted counsel to file additional briefs by April 19, 1962.
After full reconsideration the court affirms the dismissal below of the appellant’s complaint. Six judges adopt the panel opinion of January 3, 1962 as the opinion of the in banc court, with one judge concurring in a separate opinion and two judges dissenting in separate opinions.