(dissenting).
I dissent in separate opinion.
On Petition for Rehearing In Banc
Before LUMBARD, Chief Judge, CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges. PER CURIAM.All of the active judges concuring, except Judge CLARK and Judge J. JOSEPH SMITH who vote to grant, the petition for rehearing in banc is denied.
CLARK, Circuit Judge (dissenting from the denial of the petition for rehearing and of the application for rehearing in banc).
Shortly after our decision herein, the Supreme Court decided the case of Salem v. United States Lines Co., 82 S.Ct. 1119, by reversing our decision in 2 Cir., 293 F.2d 121. The Court's holding was that absence of expert testimony to support the contention that the ship had failed to provide railings or other safety devices at a crow’s nest platform did not bar a jury’s finding of liability to a seaman for injuries caused by the unseaworthiness of the ship. Since our decision was based on a like absence of testimony to show that the lumber stowage here with the gaping holes, into one of which the plaintiff stepped, was improper, the basis of our decision has thus been eliminated. Hence the rehearing petitioned for, in my judgment, was quite necessary to bring our holding in line with the Supreme Court's view of the law and to prevent discriminatory action against this one plaintiff. My brothers, for reasons not clear to me, have not accepted the teachings of this case and I must perforce dissent.
The slight differences in the facts of the two cases are generally not important ; if anything, they show the present plaintiff’s position tó be stronger than was Salem’s. There the finding for the plaintiff was by a jury; here it is by an experienced judge giving persuasive reasons. The^e the difficulty as to the lack of railings at the crow’s nest platform was, if anything, less easily perceivable than were the holes in the lumber in the ship’s hold. Hence expert testimony would seem somewhat more necessary and useful in Salem than here. But not only did the Supreme Court hold that there was “no error, let alone manifest error, in having a jury decide without the aid of experts”; it also said: “Nor would expert testimony about customary equippage be essential, Pure Oil Co. v. Snipes, 5 Cir., 293 F.2d 60, 71; nor, even if offered, would it have concluded the questions of unseaworthiness or negligence,” citing several cases, including The T. J. Hooper, 2 Cir., 60 F.2d 737, repudiated by my brothers in their opinion.1 82 S.Ct. 1119, 1122, 1123 note 6.
It is true that my brothers did not base decision upon the testimony of the defendant’s expert, although they recited it approvingly. But they did base decision upon “insufficient evidence” to support a finding that “such a hole in a lumber stow was at odds with the ‘usual and customary standards of the calling,' ” 2 Cir., 304 F.2d 506, 510, a test in itself more appropriate to negligence than to unseaworthiness. Judge Murrah, however, had expressly held that decision was for him as trier, not for experts, and he had no hesitancy in finding unseaworthiness. Under the Salem holding, that must conclude the case.
. The still later case of Morales v. City of Galveston, 82 S.Ct. 1226, does not touch this issue, but concerned a defect in the cargo existing before it was loaded. The Court did, however, expressly note that unseaworthincss might arise from the method of loading a ship’s cargo “or the manner of its stowage.” 82 S.Ct. 1226, 1230.