The opinion
*99 L. HAND, Circuit Judge
(concurring).
The doctrine of Seas Shipping Co. v. Sieracki, 1 covers stevedores, but the employees of a contractor still remain “business guests,” as I understand it, and are not entitled to a seaworthy ship under the doctrine of the Osceola. 2 The duty to them is therefore only to advise them of any known dangers, or any that would have been discovered by reasonable care. This duty is sometimes put as though it was the same as providing a safe place to work, but, strictly speaking, that is not true. The shipowner is not responsible for giving them a safe place to work; all he need do is to discover any dangers and tell them. Practically, there is probably not very much difference between the two duties. In Hardie v. New York Harbor Dry Dock, 3 we held that, if there was a safe way provided for an employee of a contractor, and he chose an unsafe way, the owner was absolved. That was right, as applied to the facts of that case, but I doubt that it would be safe to say that the mere existence of one safe way was always a complete exoneration. That depends, I think, upon the likelihood that the employees would not take the unsafe way; if there was a reasonable probability that they might do so, I think the shipowner’s duty extends to reasonable care to see what dangers lurk in the other way, and to advise the employees of them. Our decision in Holm v. Cities Service Co., 4 is to be explained in this way also, I should suppose.
Therefore it is not enough here that Johnson, the Bethlehem employee, provided a well-lighted passage from the port door of the gun room along the port side of the vessel to the gangway. If the course which Lynch actually took was one which the shipowner might have supposed an employee would take, and, if reasonable care would have detected the absence of the hatch cover, I should hold that liability was established. However, I cannot find that the libellant proved those facts. Even though we assume for argument that the officers should have seen that it was probable that men, working in the gun room, might not choose the better of the two ways to reach the gangway, but might cross the hatch, there was no evidence to charge the owner with notice that the hatch cover was off. Reynolds and Soderling each tried to prove that there were seamen sleeping on the hatch, and, for argument, I will assume that they succeeded; but they had no duty and did not charge the owner. There were no officers on board after five P.M.; the chief officer only had three or four men on board and he was the only officer at any time. Since the hatch cover was taken off by employees of the Bethlehem Company, the only possible liability would be that the chief, before he left at five P.M., should have seen that the hatch cover was off and have had it replaced. As the work was going on all through the night, and some of it was in the hold in No. 5 hatch, there would have been no reason for him to do this, even if he had seen the hatch cover off before five P.M., for he might properly have expected the men at work to replace it when they were done. But there is no evidence that he saw the hatch cover off before he left, or that it was off before then. Therefore, even if we impose a duty upon him, had he seen it off, the libellant did not make out her case.
328 U.S. 85 , 66 S.Ct. 872 , 90 L.Ed. 1099 .
189 U.S. 158 , 23 S.Ct. 483 , 47 L.Ed. 760 .
2 Cir., 9 F.2d 545 .
2 Cir., 60 F.2d 721 .