The opinion
CLARK, Chief Judge
(dissenting).
Judge Medina’s careful and reasoned opinion is supportable on views of the meaning of unseaworthiness announced by this court in several cases a few years back; but they seem to me incompatible with the principle as now defined by the Supreme Court, and they were actually disapproved in Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478 , which is affirmed, on the ground taken below, in Alaska S. S. Co. v. Petterson, 347 U.S. 396 , 74 S.Ct. 601 , 98 L.Ed. 798 . So I feel this case requires a re-examination of our earlier view.
Since libellant has conclusively shown that the rigging of the lifeboat was at least a concurrent cause of the accident, it seems to me irrefutable that he can recover on the theory of unseaworthiness. The district court’s finding, from conflicting evidence, that there was not necessarily a custom to rig or cradle lifeboats being painted goes at best to the issue of negligence, but does not affect the shipowner’s absolute responsibility to provide a safe place to work. See Petterson v. Alaska S. S. Co., supra; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406 , 74 S.Ct. 202 , 98 L.Ed. 143 ; Rogers v. United States Lines, 347 U.S. 984 , 74 S.Ct. 849 , 98 L.Ed. 1120 ; Seas Shipping Co. v. Sieracki, 328 U.S. 85 , 66 S.Ct. 872 , 90 L.Ed. 1099 ; McCarty v. United States, D.C.E.D.N.Y., 88 F.Supp. 251 , affirmed per curiam 2 Cir., 196 F.2d 221 .
This result would seem to follow even if we accept the district court’s inference that “someone” must have tampered with the releasing mechanism. Contributory negligence at best is a matter of defense, which must be proved, as it certainly was not here. In fact, the district court’s result can be approved only by implicit recourse to the now discredited fellow-servant doctrine. For the facts relating to the relative experience and to the position in the boat of the three workmen point to the culpability of Rosa, rather than of either of the others. Thus it is being assumed that liability is absent if Rosa pulled the lever. The fellow-servant doctrine was explicitly eliminated by the Jones Act, 46 U.S.C., for negligence cases, and was never a defense to unseaworthiness. Mahnich v. Southern S. S. Co., 321 U.S. 96 , 64 S.Ct. 455 , 88 L.Ed. 561 . Its revival here is in direct contradiction to the recent pronouncements of the Supreme Court cited above.
Since my view on this basic issue is not to prevail, it hardly is worth while to go into the question of the respective liability of the United States or the Project Construction Corporation.