BRUSZEWSKI

v.

ISTHMIAN S. S. CO.

PER CURIAM

Our examination of the appellant’s petition for rehearing satisfies us that the petition raises no question which was not previously considered and correctly decided by the court. Accordingly, the petition for rehearing will be denied.

BIGGS, Circuit Judge

(dissenting).

Bruszewski was a member of a longshoreman crew employed to remove a broken boom and tackle from the steamship “George Read” at the port of Philadelphia under the circumstances stated in the court’s opinion. The longshoremen were in charge of the ship’s boatswain. After the broken boom had been lashed, the winch was started, the boom was raised and a loose block, suspended in the adjacent rigging, fell on Bruszewski.

The court in its opinion, among other things, states, “No evidence appears that the removal operation, as directed by the boatswain, was substandard in concept or execution. * * * Actually, the only suggestion called to our attention which might have prevented the block from falling is plaintiff’s argument that conceivably an inspection of the rigging might have been made before removal of the boom was attempted,” citing Sieracki v. Seas Shipping Co., 3 Cir., 1945, 149 F. 2d 98, 101, affirmed sub nom. Seas Shipping Co. v. Sieracki, 328 U.S. 85,’ 66 S.Ct. 872, 90 L.Ed. 1099; Smith v. United States, 5 Cir., 1938, 96 F. 2d 976.

The language quoted demonstrates that the court believes that it was incumbent on the plaintiff to prove by additional evidence that the removal operation was substandard in concept or execution and that, absent such evidence, there was no proof of negligence on the boatswain’s or ship’s part which could have sustained a verdict in the plaintiff’s favor. But the facts at bar call for the application of the doctrine of res ipsa loquitur. Under the circumstances no proof of negligence is required beyond the accident itself, which was such as necessarily involves negligence on the part of the defendant which had control of the removal operation. See the classic words of Erie, C. J., in Scott v. London and St. Katherine Docks Co., 3 H. & C. 596, 601, 159 Eng. Rep. R. 665, 667; “* * * where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” See 1 Thomp.Negl. § 15. The fact that the boom had fallen, putting its adjacent rigging in a dangerous condition, did not relieve the defendant of its duty to take reasonable precautions to furnish the plaintiff, and invitee, a safe place in which to work. In the absence of any explanation by the defendant as to why its agents did not even inspect the rigging adjacent to the boom, the jury would have been entitled to find that the defendant was negligent.

I am puzzled to understand how under the circumstances the plaintiff could have offered any further or more effective proof that the removal operation was “substandard in concept or execution”, that is to say, was negligently conducted, as this court requires. The exercise of due care on the part of the defendant required it to inspect the boom and its adjacent rigging prior to the commencement of the removal operation. Had the (defendant inspected the block and produced testimony at the trial to the effect that the block did not appear to be loose, such evidence might have relieved the defendant of a finding of negligence if the case had gone to the jury. The proof actually made by the plaintiff shows that the block was loose for it fell as soon as the boom was moved. It is a matter of general knowledge that blocks do not fall from rigging if they are made fast, and that the fall of a boom frequently damages rigging adjacent to it. It would have been an easy accomplishment under the circumstances to have tied the block securely to the rigging or to have taken it down before commencing to remove the boom. Such an exercise of prudence might not be required of the defendant if the “George Read” had been at sea in a storm, but she was safely tied to a Philadelphia dock. Considerations of admiralty law aside, the court’s ruling seems to relieve a person in control of premises of the duty of maintaining them in safe condition for invitees.

Putting to one side any question of the boatswain’s or ship’s negligence and coming to the admiralty law, it must be pointed out that the court seems to disregard completely the doctrine of a ship’s liability to a longshoreman for unseaworthiness, without regard for negligence, enunciated by the Su preme Court in Seas Shipping Co. v. Sie-racki, 328 U. S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. See also Mahnich v. Southern Steamship Co., 321 U. S. 96, 64 S.Ct. 455, 88 L.Ed. 561. This court’s opinion does not deal with the Sieracki doctrine or give any reason why it is deemed to be inapplicable.

For these reasons I think there should be rehearing before the court en banc.