(concurring).
I concur in the result reached by the majority, but not fgr all of the reasons upon which they predicate it.
The reason given by the majority for reversing the lower court and remanding the matter for trial is, quoting the Government’s brief, “The origin of the excessive strain and how it was generated, the extent of the excessive strain, the parties who caused the excessive strain, and who bore the responsibility for preventing an excessive strain are all plainly material questions” and, accordingly, Pot being answered in the record, should be decided by a jury. However material these might be, they are all answered, in my judgment, with the exception of one which I shall advert to later, by the admission of the Government that the “vang guy shackle” parted because of “excessive strain placed upon it in the loading operation.” This is so because of the admissions in the record that the loading was done by the stevedores of the Northern Metals Company, in attaching the tank to the cargo hook and the fall of the boom, as well as in operating the No. 3 winch which controlled the vang guy and shackle. Therefore, we know the “origin of the excessive strain”, who generated it, as well as the parties causing it. Further, “the extent of the excessive strain” is shown by the further admission that the weight of the load on the cargo hook and the fall of the boom was a 61% ton tank and the safe working load to be carried by the vang guy shackle, was 56% tons. Therefore, while the weight of lifting the tank was on the cargo hook and the fall of the boom, which did not break, the positioning of the tank, to put it in the square of the hatch, was done by means of the vang guy and shackle which was only rated for a working load of 56% tons. Accordingly, in the loading operation of the tank, there was too great a strain upon the vang guy and shackle in-positioning it over the square of the hatch with the contending stresses and strains attendant to so doing and it broke and lashed back and killed the plaintiff’s decedent. On the winch controlling the vang guy for the No. 3 hatch, there was a tripper which, when properly set, would shut off the current or give warning that an excessive strain was being placed on the *769vang guy in the operation. There are no admissions here with respect to what working load the tripper was set for or who set it. If it was set for a load in excess of the safe working load of the vang guy, under the admiralty law, an unseaworthy condition obtained on the ship and the negligence of the stevedores in improperly positioning the load, or in placing too heavy a load on the cargo hook and fall, brought into play this unseaworthy condition. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 426, 79 S.Ct. 445, 3 L.Ed.2d 413. The only factual difference between this case and our own is that the tripper in that case (and as in our own, was found in good working order) regulated the fall on the boom or lifting operation, while in our case the tripper regulated the load on the vang guy. It may well be that the failure to set the tripper on the vang guy winch at its proper rating at hatch No. 3 was negligence, if not unseaworthiness, on the part of the owner of the vessel, since the members of the crew rigged the gear which the stevedoring company employees operated. However, as is indicated, there is nothing in the record to show what working load the tripper on the vang guy winch operating at No. 3 hatch was set for, as the answer to interrogatory No. 38, which posed the question, merely admitted that the winch was equipped with trippers and that the “Guy winches had trip setting of 550 amperes and branch circuit breaker of 275 amperes.” Whether or not this answer, in terms of amperes, is a setting above the safe operating load of the vang guy winches is, at best, unclear, and since no positive findings with respect thereto can be gleaned from the answer, the matter should be remanded to the lower court in order to have full information to draw a proper conclusion.
Additionally, it should be determined upon remand, if liability is to be imposed, whether the death of the plaintiff’s decedent was caused by negligence or unseaworthiness, or both, for an interesting problem is posed for the Court as to whether, under the Pennsylvania Wrongful Death Act1 and the Survival Act,2 the cause of action is compensatory, particularly if unseaworthiness without negligence be determined as the cause of death.
. Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601.
. Act of April 18, 1949, P.L. 512, art. VI, § 601, 20 P.S. § 320.601.