(dissenting).
I am disappointed that I cannot bring my brethren—as I had hoped—to consider in any detail the serious problems posed by this case. The majority opinion is directly contra to our holding in Palazzolo v. Pan-Atlantic S.S. Corp., 2 Cir., 211 F.2d 277, affirmed Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, in which we held that negligence of the longshoremen could create a hazard which would constitute unseaworthiness. See also Grillea v. United States, *7582 Cir., 232 F.2d 919. The sole difference here is that the hazard was short-lived; yet Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, teaches us that a hazard may be of short duration and recent vintage and nevertheless constitute'unseaworthiness. And we have held that the trier of facts must determine in each case whether the duration of a hazard is such as to render the ship unseaworthy. Pinto v. States Marine Corp. of Delaware, 2 Cir., 296 F.2d 1, certiorari denied 82 S.Ct. 874. Yet no such consideration was made here. In the light of the present summary disposition of the ease I am wondering why in banc consideration was ever granted.
So, too, the decision seems inconsistent with the rationale of the doctrine of unseaworthiness as laid down by the Supreme Court in, e. g., Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and Mitchell v. Trawler Racer, Inc., supra, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. The Court has indicated that unseaworthiness is a form of enterprise liability, “a species of liability without fault, analogous to other well known instances in our law.” Seas Shipping Co. v. Sieracki, supra, 328 U.S. 85, 94, 66 S.Ct. 872, 90 L.Ed. 1099. It is imposed because of the hazardous nature of the tasks, in order to encourage care by the shipowner and ultimately to cause the shipowner to bear those losses which are incidental to the enterprise. The shipowner is best situated to distribute the loss broadly amongst the beneficiaries of the industry. And, on the other hand, to make the burden fall on seamen or longshoremen is to require them to subsidize the shipping business. See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961). Because this is the rationale of the doctrine, it would seem that the shipowner should be liable for losses caused by all foreseeable hazards, avoidable or not, which are normally incident to the shipping trade. See 2 Harper & James, The Law of Torts 1376-1378 (1956); 3 Restatement, Torts § 519 (1938). See generally Ehrenzweig, Negligence Without Fault (1951). At the very least it should be liable for injuries caused by hazards within the scope of its responsibility which could be avoided by greater care or supervision. This is such a case; and the burden is not a harsh one, for even if liable the shipowner may well recover indemnification from the plaintiff’s employer. E. g., Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413.
For these reasons, and for those advanced in my original dissent, I believe-this hazard rendered the ship unseaworthy. But as Judge KAUFMAN points out in his dissent, a question remains under the doctrine of the Pinto-case as to the duration of the dangerous condition and whether the hazard' was so short-lived that the ship would still remain reasonably fit for its intended use. I disagreed with the conclusion-in the Pinto case; but, while it stands, it does make sense to return the ease for findings on this time factor, as Judge-KAUFMAN holds. So I join him in voting to reverse and remand for further proceedings.