The opinion
FRIENDLY, Circuit Judge
(dissenting);
Deeply regretting the necessity, I see no alternative to sending this case back for a third trial in which, hopefully, the jury may be given a proper charge. Despite views last expressed in Skibinski v. Waterman S.S. Corp., 360 F.2d 539, 543 (1966) (dissenting opinion), I agree that Mosley was entitled to go to the jury on the issue of inadequate lighting; although the cases generally cited to this point concerned failure to supply lighting at night, Mollica v. Compania Sud-Americana de Vapores, 202 F.2d 25, 27 (2 Cir.), cert. denied, 345 U.S. 965 , 73 S.Ct. 952 , 97 L.Ed. 1384 (1953); Ross v. S.S. Zeeland, 240 F.2d 820 , 822-823 (4 Cir. 1957), the jury could properly have found that the stevedores had created on October 14 a condition of permanent night in the ’tween deck of the #5 hatch. Cf. Robillard v. A. L. Burbank & Co., 186 F.Supp. 193 (S.D.N.Y.1960). Whether the form of the chute afforded any "basis for a finding of unseaworthiness is decidedly questionable ; we have been pointed to no evidence that its configuration departed from the norm, and the tapering must have served a useful purpose in decelerating the falling scrap. However, the jury was permitted to find unseaworthiness not only on these accounts but on the basis of “the type of operation that was going on” and “the condition of the deck” — activities and results being currently created by Mosley’s employer, Lipsett, in the work it was hired to perform. Metal scrap can hardly be loaded so as to leave a ’tween deck entirely spick and span; if Lipsett exceeded permissible limits of messiness, this went to its negligence but not to the seaworthiness of the ship. Cf. Morales v. City of Galveston, 370 U.S. 165 , 82 S.Ct. 1226 , 8 L.Ed.2d 412 (1962). In granting the ship’s motion for judgment n. o. v. against Lipsett, the judge recognized that the absence of lighting might be “the only unseaworthiness,” yet his instruction permitted the jury to find against the ship not only on that permissible ground but on impermissible ones. The same rule of law applied in our prior decision requires a new trial.