(concurring, and dissenting):

I concur in reversing the district court'.. But I cannot agree with all the reasoning or factual conclusions contained in-, the maj'ority opinion.

It was stipulated that this longshoring operation of unloading sugar involved the use of cranes “never found on ships-as a regular part of ship’s gear.” In fact, they are land based. A leg, an-integral part of the crane, is inserted *217 in the ship’s open hatch. Scrapers, com■ponent parts of the crane, are operated by means of falls rigged through blocks .attached to the sides of the hold “solely for the sake of convenience,” and aid in bringing the sugar cargo to the crane.

The district court held the injured longshoreman “was not incurring the hazards of a seaman, in that none of the traditional unloading gear of the .ship, namely, winches, masts and booms, was being used in the operation in which he was engaged. The cause of the injury •cannot be attributed to the vessel.”

I agree with my brothers that where .a gantry crane takes the place of a shovel, for example, in unloading operations, the mere fact that gantry cranes are not traditionally, or usually, or were not ■formerly, used to unload sugar, would not and should not be the deciding factor to rule it is not the equivalent of ship’s .gear.

The ship and its gear, as I see it, has been held to include that which in this day of automation and new procedures takes the place of what was formerly “ordinary and usual” ship’s gear. The concept of what constitutes the ship’s gear has been broadened to include many pieces of equipment which are not traditionally affixed to the ship proper. Expressive of this trend is the language (though not the holding) of the court in Sherbin v. S. G. Embiricos, Ltd., 200 F.Supp. 874, 877 (E.D.La.1962):

The cases cited above lend force to the statement made. In Petterson, the Supreme Court followed the circuit court opinion, 205 F.2d 478 (9th Cir. 1953), which expressly held the shipowner liable for injury caused by a defective block which (it was assumed) was brought aboard by the stevedoring company. Of course, a block used in unloading cargo is traditionally a part of ship’s gear.

In Rogers, the Supreme Court reversed a circuit court decision denying liability of the shipowner. 205 F.2d 57 (3rd Cir. 1953). In that case, the alleged unseaworthy condition was not created by the ship. A defective “land fall runner” was owned, produced and fastened to the winch by the stevedore in charge of the unloading operation. The ship not only did not sanction the use of the runner but also had no knowledge of its existence. Yet the Supreme Court reversal inferentially holds the runner is an appurtenance. It is our assumption that “a land fall runner” is, if not a traditional part of ship’s gear, useful in unloading cargo.

In Considine, the court applied the reasoning of Petterson and Rogers to a piece of equipment never considered part of a vessel — an allegedly defective chisel-truck, a hydraulically-operated-platformed-wheeled device for handling heavy bales, etc. The court rejected outright the position of the defendants “that the truck, not being substitute, or ship-type equipment, and not owned by the ship, is not subject to the absolute warranty of seaworthiness.” The chisel truck was not, traditionally, a part of ship’s gear, yet it took the place of loading and unloading equipment, and hence its use when defective, established unseaworthiness.

But whenever a vessel has been held accountable for its unseaworthiness there has been, even in the most recent decisions establishing liability, at least lip service paid to the requirement that “the ship or its gear” (or that which *218 takes the place of the ship’s gear) was not “reasonably fit for the purpose for which it was intended.” Cf.: Deffes v. Federal Barge Lines, Inc., 229 F.Supp. 719 (E.D.La.1964).

In Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 , 80 S.Ct. 926 , 4 L.Ed.2d 941 (1960), the following language appears, quoted with approval in Italia, supra (described in the majority opinion as “the most recent case discussing the present problem”):

That issue of reasonable fitness was not determined in the district court because that court — in the opinion of this court — too nax'rowly circumscribed what could be considered “ship’s gear.” The district court distinguished between “the unloading device itself,” and “ship’s gear.” This court holds, in today’s world, they may be one and the same.

The district court has still to reach the fundamental question: whether that mechanical appax-atus which was used in unloading was free from defects, and reasonably fit for its intended purpose.

This court should be hesitant to draw any inference of improper functioning, without findings of fact by the trial court. The cases cited in the majority opinion, Blassingill v. Waterman S. S. Corp., 336 F.2d 367 (9th Cir., decided September 9, 1964); and Thompson v. Calmar S. S. Corp., 331 F.2d 657 (3d Cir. 1964), are just two examples of court findings that defective gear or negligent acts made the ship unseaworthy. In Blassingill, the proximate cause of libellant’s injuries was clearly the grossly negligent overloading of a sling load of burlap bales. And in Thompson, the improper loading cargo, using the ship’s line and the ship’s power was the undisputed cause of the longshoreman’s injury. Cases not cited by the majority, however, show the need for a careful consideration of all possible causes of injury in the not-so-obvious fact setting before any inferences of unseaworthiness are drawn. In Titus v. Santorini, 258 F.2d 352 (9th Cir. 1958), a longshoreman was injured on the ship when the ship’s gear, wire and rope guy, broke while taking cargo aboax'd. The court refused to find the shipowner liable where it had no conclusive jrroof on the cause of the accident. Among other possibilities, the court noted that the injury may have been caused solely by the negligent act of a fellow longshoreman for which the court would refuse to make a finding of unseaworthiness. Comparable reasoning was adopted again by this court in Billeci v. United States, 298 F.2d 703 (1962), in an action by a longshoreman for injuries received when a winch fell out of gear and became freewheeling, causing a hatch section to swing out and stx'ike him. Again the injury resulted from the use of the ship’s gear. But this court refused to make a finding of unseaworthiness where the injury was found to be the result of the negligence of a fellow longshoreman in failing to use safety devices while using the winch.

These two ninth circuit cases, while not dispositive of the unique fact situation at bax% axe helpful in pointing out to the trial court the large realm of possible causes of Huff’s injuries that must be considered before making a finding on the question of unseaworthiness. Citation to Blassingill and Thompson alone, without any reference to other cases, including some from our circuit, might tend to distort the relevant considerations for the trial court to have in mind in its determination of whether* or not the shipowner is to be held liable for Huff’s injuries.

Thus I cannot agree with the majority that there was any proof or inference in the stipulated facts of “an improper functioning of the scraper.” That a stevedore was injured is no proof of an improper functioning, nor of any defect. *219 I cannot agree that the majority have factually envisioned all the possible events which could have proximately caused the accident. The entire question of unseaworthiness of the vessel, if any, remains open for determination '.by the trier of facts.