dissenting:

Andrew Taylor, the plaintiff, was injured while working as a longshoreman unloading a vessel owned by the defendant, Far Eastern Steamship Co. (FESCO). Taylor, who operated the winch, was injured when he slipped on loose mung beans that were on the winch platform. The question before the court is: Was FESCO negligent in failing to remove the beans from the winch platform.

The district court entered judgment for FESCO after a bench trial. In reviewing its decision, we freely review questions of law, while findings of fact are overturned only if clearly erroneous. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). “A determination of negligence is generally recognized as a mixed question of law and fact.” Id. The appropriate standard of conduct required of the defendant is a question of law. Id.

In reviewing the facts as found by the district court, I conclude that the district court both applied an incorrect standard of care, and erred in applying the facts to the heightened standard of care it adopted. The facts show that FESCO was negligent and that its negligence caused plaintiffs injury. I would remand for further proceedings consistent with' this opinion.

FACTS

The facts as found by the district court are as follows: When the ship M/V Nikolay Karamzin arrived in the San Francisco Bay, the shipowner, FESCO, engaged the services of Crescent Wharf and Warehouse Company (stevedore) to discharge the cargo from the vessel. Following a preliminary inspection of the work area by the stevedore’s walking boss on June 19, 1976, the longshoremen boarded the vessel and prepared to unload the ship’s cargo. The preliminary inspection was undertaken by the stevedore to assure that no unsafe condition existed in the longshoremen’s work area.

After general cargo was unloaded from the upper portions of the ship’s hatch number five, the lower hold was opened. Stored in the lower hold were sacks of mung beans from Bangkok. These beans are the size of BBs and are hard, round and green. On opening the lower hold, the longshoremen noticed that some of the sacks were torn and leaking beans. The stevedore’s daily cargo report for June 19 stated exceptions to cargo conditions as follows: “Five Lower Hold, Beans on First Tier, Bags Dirty, Stained and Torn. Contents Leaking. X Ship.” “X Ship” means cargo observed while still on the ship. FESCO’s cargo officer, Malyavin, signed the report, acknowledging its accuracy.

The sacks of beans leaked as they were placed on pallets, hoisted out of the hold, and unloaded. Beans spilled onto the main deck and were tracked around the ship. Plaintiff and his- partner Malbreau testified that beans were blown up onto the steel deck of the winch platform. The stevedore’s gang boss Ward, FESCO’s chief mate Klementyev, and cargo mate Malyavin testified that while they saw beans spilled on the main deck throughout the discharge operation, they saw none on the winch platform.

At around 1:00 p.m. on the afternoon of June 19, while Taylor was working as a hatch tender on the main deck, he complained to gang boss Ward about the beans on the main deck, and asked that they be swept. Ward notified a ship’s mate about the beans on the deck at about 1:30 p.m. Because sweeping was considered “extra labor” for which the stevedores could charge the vessel, it was customary for the stevedore to notify the vessel officer if such work needed to be done, either to secure permission to do the work or to get the vessel’s crew to do it. On being notified of spillage on the main deck, the mate said he would take care of it, and within thirty minutes he sent a crew member who swept the main deck area.

*1390 Before the crew member came, Taylor, who had rotated positions to work as a winch driver, told Ward that there were also beans on the winch platform that needed to be swept. When the crew member came to sweep the main deck, plaintiff yelled from the winch platform, “come here,” beckoned to the sailor, and gestured to him with a sweeping motion. The sailor did not respond and did not sweep the winch platform.

About an hour later, Ward complained a second time to the ship’s mate at hatch number five about the beaii spillage, and asked that the main deck be swept. Ward’s testimony is contradictory on whether he also asked the mate to have the winch platform swept; 1 in any event, the platform was not swept.

Ward pointed out the bean spillage to. the mate a third time at about 4:00 p.m. while both Ward and the mate were standing next to hatch number five, and Ward asked the mate to station a man at the hatch to sweep the constant flow of beans. The mate responded that he was shorthanded, but that the longshoremen should continue to work because he would have the spillage problem taken care of. Beans continued to accumulate on the main deck and the winch platform throughout the afternoon, but no more sweeping was done that day or the next by either crew members or longshoremen.

On the evening of June 19, Ward mentioned the bean spillage to the stevedore’s walking boss Greggio, who said he would contact the mate. Greggio did not recall whether Ward mentioned spillage on the winch platform. Vessel officers on watch inspected the main deck and winch platform during the days the cargo was being unloaded. While they saw beans on the deck, they did not consider the deck or platform to be dangerous.

At 8:00 a.m. on the morning of June 20, plaintiff and the longshoremen resumed the cargo discharge from hatch number five. According to the plaintiff, when he went to the winch platform, there were “some beans” there. His accident occurred at 9:30 a.m. when Taylor and gang boss Ward went to take slack out of the midship guy, located on the winch platform. As plaintiff pulled on the guy wire, his feet slipped out from under him and he fell on his back and head. He allegedly lost his footing because of the beans underfoot.

Stevedore personnel testified that it was their practice to report dangerous conditions they observed, such as slippery decks, to the gang boss, who in turn would report them to the ship’s mate, and that it was then the ship’s officers’ responsibility to remedy those conditions. Chief mate Klementyev and cargo mate Malyavin agreed that elimination of dangerous conditions on deck, once reported, was their responsibility. Indeed, the director of the shipping company had issued a “recommendation” which provided that “[i]f the stevedore reports to the ship’s officer that ... some unsafe condition exists in the work area, the ship’s officer should immediately look into the matter and either correct it or cause it to be corrected.” With respect to sweeping, FESCO instructed the stevedore company not to have longshoremen sweep decks unless specifically instructed to do so, because FESCO preferred to avoid the extra expense such work would entail.

DISCUSSION

A longshoreman may bring an action against a vessel if he is injured while working on the ship and he can show that the vessel’s negligence caused his injury. 33 *1391 U.S.C. § 905 (b). This represents a change in the law, for prior to the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, a vessel was strictly liable for injuries even in the absence of fault or negligence. Id.; Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164-65 , 101 S.Ct. 1614, 1620-21 , 68 L.Ed.2d 1 (1981). In Scindia, the Supreme Court articulated the standard of care required of a vessel during unloading operations. Once a problem is brought to the attention of the vessel, it is necessary .to determine whether custom or contract places a duty on the vessel or on the stevedore to correct thé problem. 451 U.S. at 176 & n. 23, 101 S.Ct. at 1626 & n. 23.

The relevant inquiry in this case is whether the ship, by contract, custom or law, Scindia, 451 U.S. at 172 , 176 & n. 23, 101 S.Ct. at 1624 , 1626 & n. 23, was obligated to eliminate the hazard created by the loose beans. The facts as stated by the district court lead to the unavoidable conclusion that the ship expressly agreed to “have the spillage problem taken care of” because “FESCO preferred to avoid the extra expense such work would entail.” Given the ship’s express assumption of duty to eliminate the unsafe condition, the only.remaining inquiry is whether the ship adequately performed that duty. See Lieggi v. Maritime Co. of Philippines, 667 F.2d 324, 328-29 (2d Cir.1981). Contrary to the conclusion of the majority opinion, the stevedore fulfilled its duty to maintain a safe work environment when it reported the dangerous condition on the deck, i.e., the leaking beans, to the ship’s mate pursuant to FESCO’s recommended procedure and its usual practice.

The majority opinion states that “the district court did not err in finding that the shipowner did not assume an obligation to intervene by virtue of the stevedoring contract and the mate’s agreement to take care of the beans,” and that financial arrangements cannot provide a basis for the ship’s liability. Yet what evidence could possibly be stronger to show an assumption of the duty to eliminate an unsafe condition than the finding that the stevedore’s practice was to report unsafe conditions to the ship’s mate, and that the ship’s crew agreed that the “elimination of dangerous conditions on the deck, once reported, was their responsibility.” See Lieggi, supra.

The district court rejected plaintiff’s argument that the ship actively involved itself in the cargo operations, stating that the ship’s officers “acted only as occasional observers.” This conclusion is clearly erroneous in light of the district court’s findings of fact that the ship’s mate repeatedly told the longshoremen’s gang boss that “he would have the spillage problem taken care of,” that “the longshoremen should continue to work,” and that “FESCO instructed the stevedore company not to have longshoremen sweep the deck unless specifically instructed to do so, because FESCO preferred to avoid the extra expense such work would entail.” FESCO’s assumption of control was even greater than the shipowner’s concurrent control in Davis v. Partenreederei M.S. Normannia, 657 F.2d 1048, 1052 (9th Cir.1981), upon which partial liability for negligence was affirmed.

The majority opinion and the district court draw a distinction between the duty to sweep the deck and the duty to sweep the winch platform. However, the longshoremen would not be paid to sweep, whether it was the winch platform or the deck. Whether the ship agreed to sweep a specific area is not the question. The ship knew that the problem was the spillage of loose beans, as shown by the cargo mate’s signature on the stevedore’s daily cargo report. It agreed to correct the problem on at least three occasions and consequently assumed responsibility to sweep wherever necessary. FESCO could not have reasonably expected the stevedore to sweep the beans from the deck or the winch platform as “[ijndeed, predictably, the shipowner’s undertaking to correct the condition lulled the stevedore into inaction.” Lieggi, 667 F.2d at 329 . In Lieggi , the court held that, as a matter of law, the shipowner could not escape liability under similar circumstances.

*1392 The district court further supported its decision by stating that the presence of beans did not create a sufficiently serious risk of harm to require intervention. It was not proper for the court to conclude that “the shipowner could reasonably have expected that the stevedore would comply with its legal obligation to do what was necessary to maintain a safe place to work” after it found that the stevedore had brought the problem to the crew’s attention and the ship’s crew had expressly, whether reasonably or not, agreed to “take care of” the spillage. Shielding the shipowner from the results of its decision to save money by assuming the obligation to either “correct [the problem] or cause it to be corrected” is not an appropriate function of the judiciary. The “reasonableness” of the shipowner’s failure to act is not relevant when there has been an express assumption of duty. See Scindia, 451 U.S. at 178 , 101 S.Ct. at 1627 .

The district court also stated that even if a dangerous condition existed, the shipowner was relieved of liability because the longshoremen continued to work. In Scindia, the Court rejected the notion that a shipowner may escape liability on the ground that the stevedore should have refused to continue working in face of an obvious hazard. 451 U.S. at 176 n. 22, 101 S.Ct. at 1626 n. 22. In this case the crew told the longshoremen to continue working. Unloading operations would be disrupted and longshoremen would be placed in an impossible position if the workers were found to forfeit their right to rely on a promise of the shipowner by complying with its instructions to continue working. Moreover, a shipowner “is not absolved of liability just because a stevedore is negligent.” Subingsubing v. Reardon Smith Line, Ltd., 682 F.2d 779, 781 (9th Cir.1982).

The district court used an incorrect legal standard in analyzing the facts after trial. The proper inquiry was whether FESCO assumed the duty to eliminate the slipping hazard created by the beans by virtue of its agreement with the stevedore. I would conclude that the finding that FESCO was not negligent was clearly erroneous in view of the incorrect standard of conduct applied by the district court. See Miller v. United States, 587 F.2d at 996 .

Further, FESCO should not have been absolved of responsibility for the accident under the standard actually applied by the district court. The district court held FES-CO to a standard of care applicable to situation in which the shipowner would be required to intervene by law. Three conditions must be met in order to expose a ship to liability for negligence in the absence of an assumption of duty. They are: the shipowner (1) has actual or constructive knowledge of a dangerous condition, (2) knows that the longshoremen are continuing to work despite the existence of an unreasonable risk of harm to them, and (3) could not reasonably expect that the stevedore itself would remedy the condition. Scindia, 451 U.S. at 175-76 , 101 S.Ct. at 1626-27 . The district court’s conclusion that the evidence was insufficient to sustain plaintiff’s burden was clearly erroneous even under this standard.

The first requirement is that FESCO had actual or constructive knowledge of the danger. Although there is a dispute about whether or how the gang boss told the ship’s mate about the loose beans on the winch platform, see n. 1, without resolving this dispute, it is clear that it was FESCO’s policy to save money by sweeping the deck of the ship when required or when the need was brought to its attention. The stevedore’s gang boss told FESCO’s officers about the spillage and the attendant slipping hazard. Upon learning of the problem, the ship’s officers said that they would take care of it. Thus they obligated themselves to remove the hazard created by the beans from the longshoremen’s work area. See Lieggi v. Maritime Co. of Philippines, supra. If the ship’s officers were told that there were loose beans on the winch platform, FESCO had knowledge of the problem there and was negligent in failing to eliminate it. Even if the ship’s officers were not directly told that loose beans were on the winch platform, the district court found that “[v]essel officers on watch inspected the main deck and the winch platform during the days the cargo *1393 was being unloaded.” The ship is chargeable with knowledge of the presence of the beans on the platform because it knew about the slipping hazard created by the beans and in fact inspected the platform where the accident occurred. See Bueno v. United States, 687 F.2d 318, 320 (9th Cir. 1983).

The second two requirements stated by the district court were also met. The ship agreed to clean up the spilled beans, declined to pay longshoremen to sweep, and directed the stevedore to keep working. Based on these facts, the district court’s conclusion that the evidence was insufficient to show that FESCO knew of the hazard, knew that the longshoremen would continue to work and could not reasonably expect the stevedore to remedy the situation was clearly erroneous.

I would reverse and remand with instructions to conclude that FESCO assumed the responsibility to remedy the problems associated with the spilled beans.

. The district court added this footnote:

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