(dissenting).
This case seems to me a clear case for affirmance. It was well tried by one of the most distinguished of American judges, long experienced in trial work, Chief Judge Murrah of the Tenth Circuit, sitting by designation below. His findings and conclusion of unseaworthiness of the ship by reason of the open holes left in the stowage of the lumber are well supported in the record and indeed seem rather inevitable. Some carping is had as to the “meagre” character of the findings. But findings should be geared to reflect the case as the judge saw it, not to some artificial standard of needless perfection; those made here do this perfectly and are more than adequate to set forth the simple and stark fact, actually recited three times in the opinion, that the plaintiff, while engaged in his task of unloading the lumber, stepped backwards and in doing so stepped into a hole “about 18 inches across and about two feet in depth.” I do not wonder that this impressed my brothers so that they felt impelled thus *512to reiterate it. But I do not understand why they draw back from the necessary conclusion.
For this would seem a clear case of a hazard which renders the ship unsea-worthy. Stowing of the lumber in such a way as to leave large holes in the otherwise flat surface of the cargo, chiefly in the remoter areas of the hold, was practically an invitation to injury. In the normal course of unloading operations the longshoremen were required to walk about on this cargo, and it was perfectly predictable that at some point one of them would fall into one of the holes and injure himself. Liability seems as clear, for instance, as in the case of the unexplained exploding of a valve where we recently reversed a finding excusing the ship from liability. Van Carpals v. S. S. American Harvester, 2 Cir., 297 F.2d 9, certiorari denied U. S. Lines Co. v. Van Carpals, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 84.
But the opinion of the majority overruling the findings below appears to reintroduce negligence concepts into the law of unseaworthiness, and thus to overthrow, by a kind of covert counterrebel-lion, the rule of absolute liability laid down in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and recently reaffirmed in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. Moreover, the ship’s defense, here erected into a rule of law, seems to me distressing as applied to the facts and quite pernicious in its future possibilities. It is that, as shown by its professional expert witness, this is a usual and customary stowage; and it is “likely, indeed inevitable,” that cargo of this type would have such gaps and holes. Thus, contrary to Judge Murrah’s sound view below, the question what constitutes good stowage is taken out of the hands of the court and given over to the industry whose practices are under attack. This seems a new departure; in Van Carpals, for instance, we did not hold ourselves bound by the industry view that the erupting valve was faultless.
Moreover, this has prejudicial practical results. It means in substance that a workman has no chance of controverting a solid industry view, that what has been done is natural and customary in the business, unless he can produce outranking experts to testify in his behalf. It is unreal to expect this. Outside of the not inconsiderable item of fees and expense, it will be obviously difficult, if not impossible, to secure competent witnesses to testify against their own business. The questions both of safety at sea and of risk distribution will necessarily be subordinated to the conclusion that what is good for the common carrier business must be good for, or at least accepted by, those injured by odd conditions on shipboard. The more natural conclusion should be that if defendant must transport lumber in this way (and even defendant's expert admitted there were ways of covering the holes), then it must bear the risk of injury to human beings.
Actually is the majority saying anything other than that only a negligent stowage job, i. e., one which is not reasonable under the circumstances, can constitute unseaworthiness ? Or at most that cargo properly stowed for carriage is seaworthy, regardless of what risks to life and limb it presents ? The fundamental rationale of unseaworthiness as an absolute liability is that the shipowner must bear the loss of injuries caused by unavoidable hazards. Seas Shipping Co. v. Sieracki, supra, 328 U. S. 85, 94, 66 S.Ct. 872, 90 L.Ed. 1099. If “reasonably fit for their intended use” is to be read as the majority here has done, the shipowner will avoid liability whenever he can prove that he exercised reasonable care.
Similar conclusions may be drawn from the holding that a hazard does not render the ship unseaworthy unless it represents a divergence from usual and customary standards. If it is the custom in the trade to have hazardous conditions on shipboard, are we to conclude *513that for that reason the loss incurred by such hazards is to be borne by the injured longshoreman . or stevedore? In The T. J. Hooper, 2 Cir., 60 F.2d 737, 740, certiorari denied Eastern Transp. Co. v. Northern Barge Corp., 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571, Judge Learned Hand stated: “There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence * * *. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required * * See Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 234 F.2d 253, 260; June T., Inc. v. King, 5 Cir., 290 F.2d 404, 407. In The T. J. Hooper, Judge Hand spoke in terms of negligence; the entire trend of the law of unseaworthiness since The T. J. Hooper reinforces, rather than erodes, the conclusion that the courts ultimately must set the standards.
It is significant that the majority in its expansive interpretation of “reasonably fit for their intended use” relies primarily on cases actually holding opposite to its decision here. This is true not only of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, reversal of a court of appeals’ holding that slime on the rail did not render the vessel unseaworthy, but also of the majority’s apparently chief support, Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354, where the Court reversed a court of appeals’ decision to restore district court findings that a vessel was unseaworthy because of the belligerent characteristics of another seaman. I find my brothers' approach a prime illustration of the dangers of reading extensive negative implications into an affirmation, however narrowly they may construe it. There is no rule of logic or of practical persuasion which justifies so doing-. Here a curious consequence of this inverted logic is that the two cases regarded by my Second Circuit brothers generally as pressing the doctrine of unseaworthiness to undesirable extremes are taken as making doubtful, if not overruling, Judge Hand’s landmark decision in the Hooper case. And the conclusions discovered in the Supreme Court's cautionary remarks in the Boudoin case against pressing that ground of unseaworthiness beyond seamen not equal in disposition to the ordinary men of the calling — “All men are to some degree irascible,” etc. — are remarkable. To conclude that this natural limitation forces acceptance of industry methods of lumber stowage, no matter how dangerous they may be, seems to me a self-demonstrated fallacy.
So I am convinced we should proceed on the standards set by Judge Murrah, rather than upon those set by the industry. I note that at the end of his opinion Judge Hincks calls the roll of the cases in which we have this year decided against seamen in the course of what seems to me an attempt to cut down on the scope of the Supreme Court’s doctrine of unseaworthiness. Although impressive in favor of one point of view, the roll is not quite complete, for there were some cases against the trend. See, as more nearly in point here, Van Carpals v. S.S. American Harvester, supra, and see also Massa v. C. A. Venezuelan Navigacion, 2 Cir., 298 F.2d 239; Usiak v. New York Tank Barge Co., 2 Cir., 299 F.2d 808; DeLima v. Trinidad Corp., 2 Cir., 302 F.2d 585. It is really unfair to describe the bitterly contested cases cited as holding the ship not necessarily unseaworthy “merely because of an accident aboard.” Here were cases of serious injury resulting from some failure in the ship’s operation; the question was only as to the extent of the ship’s responsibility. Moreover, I think it hardly disputable that the facts make this a more extreme case of exonerating the ship and limiting its zone of responsibility than any of those cited.
I would affirm.