The opinion
L. HAND, Chief Judge
(dissenting).
If the decision were mine, I should remand the case and instruct the district judge to reconsider his findings in the light of the evidence since discovered which greatly impairs the testimony of the libellant’s expert witness, Archer. We do not know how far he relied upon Archer to contradict Taft; or whether, if Taft’s testimony stood alone, he would have found that the hook or shackle rose enough to engage the rail of the catwalk; or at least that the libellant had borne the burden of so proving. I disagree with my brothers in thinking that the burden was “on the respondent to prove that the winch’s creeping sufficiently to upset the catwalk was a physical impossibility.” That seems to me to divide the burden of proof, assigning it to one party as to one part of the issue, and to the other as to another part. The libellant had the general burden of proving that the “Cornelia” was negligent, or that the winch was unseaworthy; and if Taft’s testimony justified doubts whether the winch could have “crept” enough to upset the catwalk, it should be considered along with the rest of the evidence, in deciding whether the libellant had proved her case. . That issue should not, I think, be divided.
We give, and should give, great deference to the findings of the district court; I should be the last one to suggest that we give too much. For example, in this very case on the cold record I doubt if I should not have voted to dismiss the libel, so strong does the respondent’s case appear to me., However, I should be unwilling to vote to-reverse the finding of unseaworthiness,, strong as are my doubts, on the record as. it stands. I agree with my brothers that the libellant’s case, vulnerable though it is,, is not so vulnerable as to be beyond repair by what the record does not preserve; I. mean what the judge saw and heard. But it is for that very reason that we should make sure that he has before him any evidence which may change his finding; andi I cannot go along with what seems to me a too easy assumption that this evidence would not have changed his conclusion. Perhaps it would, perhaps it would not;, how can we know?
Although I should not, on the record as it is, hold the finding of the winch’s “unseaworthiness” to be “clearly erroneous,”" *57 I cannot agree as to the finding of negligence, for which there seems to me no adequate support. It is true that the respondent’s engineer did not test the winch before it was used, but I suggest that that is too high a standard of care to impose; and, besides, we have no reason to assume that testing it would have disclosed the defect; it had lifted the strongbacks earlier that day without showing any defect. Nor ■do I think that there is ground for saying that it was not the practise for the longshoremen to ask for kerosene. True, one longshoreman did testify that he had never known any longshoreman to put kerosene on a winch; and that testimony to some extent does contradict the respondent’s testimony that it was the practice for longshoremen to ask for kerosene when they needed it, although that particular witness may never have chanced to encounter a bad clutch. That aside, it did not appear in the case at bar how long the interval had been since kerosene had been put on this clutch, or whether that was ever done unless the clutch had developed some defect. So I think that the libellant must rest her recovery on unseaworthiness alone; and, if so, a question arises that was not argued before us or in the district court, which is this: Is a vessel owner liable for a seaman’s — or a longshoreman’s — death within the territorial waters of a state, when it is caused by the unseaworthiness of the vessel? I have no doubt that the death was owing to the respondent’s “wrongful act, neglect or default,” as the New Jersey Act uses those words; but in Lindgren v. United States, 281 U.S. 38 , 50 S.Ct. 207 , 74 L.Ed. 686 , the Supreme Court held that the Jones Act, 46 U.S.C.A. § 688 , superseded a state statute creating such a claim, and even reserved the question whether the Death on the High Seas Act * might not also be superseded. Since then, the Court has indeed decided that a seaman may recover for injuries suffered from the ship’s unseaworthiness, Mahnich v. Southern S. S. Co., 321 U.S. 96, 100 , 64 S.Ct. 455 , 88 L.Ed. 561 , and the same is true of longshoremen, Seas Shipping Co. v. Sicracki, 328 U. S. 85 , 66 S.Ct. 872 , 90 L.Ed. 1099 . I find it hard to understand why the rationale of Lindgren v. United States, supra, ought not to have forbidden recovery in either of these instances. If the Jones Act “covers the entire field of liability for injuries to seamen” [ 281 U.S. 38 , 50 S.Ct. 211 ] and “is paramount and exclusive,” why does it not supersede injuries arising from unseaworthiness which do not result in death, as well as those which do? Nor can I see how it does not equally supersede pro tanto the Death on the High Seas Act. Yet I must own to the greatest doubt whether the Court would today so hold. All this seems to me too make it doubly important to learn whether the judge would have decided that the winch was unseaworthy, if he had not relied upon Archer’s testimony; and, indeed, I should in any event have wished argument upon the point I have suggested before affirming.
§ 761, Title 46 U.S.C.A.