HINCKS, Circuit Judge.
The cross-appeals presented in this case are the outgrowth of an injury suffered by the libelant, Reddick, a longshoreman. The various respondents are McAllister Lighterage Line, Inc. (“Mc-Allister”), owner of the lighter, Tyler, on which Reddick was working at the time of his injury; John T. Clark & Son, Inc. (“Clark”), the stevedoring company which loaded the Tyler; and New York & Cuba Mail Steamship Co., Inc. (“Cuba Mail”), the consignee which unloaded the Tyler and which was Reddick’s employer.
After a trial without a jury the district court, in an opinion which served as the only finding of facts, held McAllister liable to Reddick because of the Tyler’s unseaworthiness, and then held that Clark was liable over to McAllister, though the Judge stated that if legally permissible he would have had McAllister and Clark split the damages. McAllister and Clark appeal from these respective rulings. McAllister also appeals from the dismissal of its claim over against Cuba Mail.
Concerning McAllister’s initial liability to Reddick, the record discloses substantial evidence tending to prove the following facts, some of which were found by the trial judge and none of which were in conflict with his findings. On February 15, 1956, Reddick was part of a gang employed by Cuba Mail engaged in unloading the Tyler at Pier 36 in the Hudson River. The Tyler’s cargo included several “knock-down” crates made of pine containing automobile engines which had been stowed one on top of another in tiers of two. There were no dunnage boards or scantlings used in the unloading process and it is evident that at the time of the unloading the crates were so close together that it was impossible to pass the usual slings around them so as to hoist them onto the pier. In order to separate the crates so that the slings could be passed around them and secured, the foreman of Reddick’s gang ordered Reddick to mount the top of the uppermost crates and to use a crowbar to separate them. Reddick did as ordered and after separating seven or eight crates he was next seen hurtling over the side of the crates, through the air, and landing on the pier alongside the Tyler. The crates were approximately 10 feet high and Reddick's total fall was approximately 15 feet.
[299]*299As the trial judge below truly indicated, it was hard to tell from Reddick’s testimony precisely what happened to cause his fall but the following seems clear. While moving from one side of a crate to the other and while his crowbar was not in use, Reddick stepped on a “blind board” — a board seemingly solid but latently defective. He said that it was this collapse of wood under his right leg that caused him to lose his balance and fall. Reddick also testified that there were several nails sticking up through the tops of these crates. His story varied as to whether he first encountered a nail and then stepped through the board while recoiling from the nail or whether he encountered nails for the first time as he was going over the side of the crate. But we do not think this discrepancy crucial.
Supporting Reddick’s version of the events was testimony of a fellow longshoreman who was ordered to mount the crates and finish the job begun by Red-dick. This witness testified that upon mounting the crate from which Reddick fell he noticed that one of the boards was broken and that the broken piece was hanging down from the edge of the break.
Another member of the gang testified that he noticed the broken board when the crate reached the dock and also several nails jutting up through the top of the crate. He also noticed that three or four other boards on the same crate were broken “and all swaying down.”
The trial judge evidently believed these witnesses. He also absolved Reddick from a charge of contributory negligence, apparently accepting testimony that the defect in the board was not noticeable.
None of the foregoing determinations were clearly erroneous. Fed. Rules Civ.Proc. rule 52(a), 28 U.S.C.A.
There was also ample testimony to support the finding that the proper way of stowing such crates as these is by leaving space between them for the introduction of the hoisting slings for unloading. There being evidence of a defective crate and of lack of space between the crates when the libelant came on board to unload, we think the judge properly held that the Tyler was unseaworthy and that McAllister was liable to Reddick.
There is no doubt that the owner of the vessel is liable to a longshoreman who is injured because of unseaworthiness resulting from improper stowage of the cargo. Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Curtis v. A. Garcia y Cia, 3 Cir., 241 F.2d 30; Amador v. A/S J. Ludwig Mowinckels Rederi, 2 Cir., 224 F.2d 437, certiorari denied A/S J. Ludwig Mowinckels Rederi v. Amador, 350 U.S. 901, 76 S. Ct. 179, 100 L.Ed. 791.
The holding of unseaworthiness may also be predicated on the latent defect in the cargo-crate. For if a shipowner is held liable for injury caused by defects in gear brought aboard by the unloading stevedore, Alaska Steamship Co. v. Pet-terson, 347 U.S. 396, 74 S.Ct. 601, 98 L. Ed. 803, there is equal reason for holding him liable for injury from a defective cargo-crate which he had received on board and had retained in his exclusive possession and control for the two days preceding the accident. Indeed, the facts of this case provide more solid support for holding the shipowner to absolute liability than did the facts of the Pet-terson case.
We come now to Clark’s cross-appeal from the judgment holding Clark liable over to McAllister. The trial judge’s opinion shows that he deemed this ruling required under the rule of the Ryan case, supra. He held that Clark breached its warranty to McAllister “by failing to stow the Tyler’s cargo properly.” [158 F.Supp. 332.] My brothers think the finding on which that holding was based was not clearly erroneous. For my part, I am unable to find evidence which supports that finding. I note that the judge relied upon the following testimony of the Tyler’s captain as establishing that on February 13 the [300]*300crates were stored without space between them.
“Q. And do you know whether spaces were left between all cases on this vessel on February 13, 1956? A. Sometimes, he — [the stevedore] places one case, and then he comes in with the next one, and he might shove that one up against the case, or hard against the other case, and he would leave it that way, and he would not move it out.
******
“Q. Did you make any objections when they loaded these cases right flush against each other? A. I make objection sometimes, but they would not listen to me. They would leave them there. They haven’t time to move them out. If I said anything, they would not take anything else.”
But although these questions were specific the answers given were merely generalities.
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HINCKS, Circuit Judge.
The cross-appeals presented in this case are the outgrowth of an injury suffered by the libelant, Reddick, a longshoreman. The various respondents are McAllister Lighterage Line, Inc. (“Mc-Allister”), owner of the lighter, Tyler, on which Reddick was working at the time of his injury; John T. Clark & Son, Inc. (“Clark”), the stevedoring company which loaded the Tyler; and New York & Cuba Mail Steamship Co., Inc. (“Cuba Mail”), the consignee which unloaded the Tyler and which was Reddick’s employer.
After a trial without a jury the district court, in an opinion which served as the only finding of facts, held McAllister liable to Reddick because of the Tyler’s unseaworthiness, and then held that Clark was liable over to McAllister, though the Judge stated that if legally permissible he would have had McAllister and Clark split the damages. McAllister and Clark appeal from these respective rulings. McAllister also appeals from the dismissal of its claim over against Cuba Mail.
Concerning McAllister’s initial liability to Reddick, the record discloses substantial evidence tending to prove the following facts, some of which were found by the trial judge and none of which were in conflict with his findings. On February 15, 1956, Reddick was part of a gang employed by Cuba Mail engaged in unloading the Tyler at Pier 36 in the Hudson River. The Tyler’s cargo included several “knock-down” crates made of pine containing automobile engines which had been stowed one on top of another in tiers of two. There were no dunnage boards or scantlings used in the unloading process and it is evident that at the time of the unloading the crates were so close together that it was impossible to pass the usual slings around them so as to hoist them onto the pier. In order to separate the crates so that the slings could be passed around them and secured, the foreman of Reddick’s gang ordered Reddick to mount the top of the uppermost crates and to use a crowbar to separate them. Reddick did as ordered and after separating seven or eight crates he was next seen hurtling over the side of the crates, through the air, and landing on the pier alongside the Tyler. The crates were approximately 10 feet high and Reddick's total fall was approximately 15 feet.
[299]*299As the trial judge below truly indicated, it was hard to tell from Reddick’s testimony precisely what happened to cause his fall but the following seems clear. While moving from one side of a crate to the other and while his crowbar was not in use, Reddick stepped on a “blind board” — a board seemingly solid but latently defective. He said that it was this collapse of wood under his right leg that caused him to lose his balance and fall. Reddick also testified that there were several nails sticking up through the tops of these crates. His story varied as to whether he first encountered a nail and then stepped through the board while recoiling from the nail or whether he encountered nails for the first time as he was going over the side of the crate. But we do not think this discrepancy crucial.
Supporting Reddick’s version of the events was testimony of a fellow longshoreman who was ordered to mount the crates and finish the job begun by Red-dick. This witness testified that upon mounting the crate from which Reddick fell he noticed that one of the boards was broken and that the broken piece was hanging down from the edge of the break.
Another member of the gang testified that he noticed the broken board when the crate reached the dock and also several nails jutting up through the top of the crate. He also noticed that three or four other boards on the same crate were broken “and all swaying down.”
The trial judge evidently believed these witnesses. He also absolved Reddick from a charge of contributory negligence, apparently accepting testimony that the defect in the board was not noticeable.
None of the foregoing determinations were clearly erroneous. Fed. Rules Civ.Proc. rule 52(a), 28 U.S.C.A.
There was also ample testimony to support the finding that the proper way of stowing such crates as these is by leaving space between them for the introduction of the hoisting slings for unloading. There being evidence of a defective crate and of lack of space between the crates when the libelant came on board to unload, we think the judge properly held that the Tyler was unseaworthy and that McAllister was liable to Reddick.
There is no doubt that the owner of the vessel is liable to a longshoreman who is injured because of unseaworthiness resulting from improper stowage of the cargo. Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Curtis v. A. Garcia y Cia, 3 Cir., 241 F.2d 30; Amador v. A/S J. Ludwig Mowinckels Rederi, 2 Cir., 224 F.2d 437, certiorari denied A/S J. Ludwig Mowinckels Rederi v. Amador, 350 U.S. 901, 76 S. Ct. 179, 100 L.Ed. 791.
The holding of unseaworthiness may also be predicated on the latent defect in the cargo-crate. For if a shipowner is held liable for injury caused by defects in gear brought aboard by the unloading stevedore, Alaska Steamship Co. v. Pet-terson, 347 U.S. 396, 74 S.Ct. 601, 98 L. Ed. 803, there is equal reason for holding him liable for injury from a defective cargo-crate which he had received on board and had retained in his exclusive possession and control for the two days preceding the accident. Indeed, the facts of this case provide more solid support for holding the shipowner to absolute liability than did the facts of the Pet-terson case.
We come now to Clark’s cross-appeal from the judgment holding Clark liable over to McAllister. The trial judge’s opinion shows that he deemed this ruling required under the rule of the Ryan case, supra. He held that Clark breached its warranty to McAllister “by failing to stow the Tyler’s cargo properly.” [158 F.Supp. 332.] My brothers think the finding on which that holding was based was not clearly erroneous. For my part, I am unable to find evidence which supports that finding. I note that the judge relied upon the following testimony of the Tyler’s captain as establishing that on February 13 the [300]*300crates were stored without space between them.
“Q. And do you know whether spaces were left between all cases on this vessel on February 13, 1956? A. Sometimes, he — [the stevedore] places one case, and then he comes in with the next one, and he might shove that one up against the case, or hard against the other case, and he would leave it that way, and he would not move it out.
******
“Q. Did you make any objections when they loaded these cases right flush against each other? A. I make objection sometimes, but they would not listen to me. They would leave them there. They haven’t time to move them out. If I said anything, they would not take anything else.”
But although these questions were specific the answers given were merely generalities. The captain says only that “sometimes” some stevedores stow without interstitial space between crates: although he was there and receipted for the cargo he did not testify that it was stowed improperly.
In its brief on this point, McAllister, apparently recognizing the absence of evidence of improper stowage on February 13 at Pier 92, relies completely upon Berwind-White Coal Mining Co. v. City of New York, 2 Cir., 48 F.2d 105, for the proposition that it is reasonable to infer that something existing today existed the same way at an earlier point of time. There being ample evidence that there was no space between crates when Cuba Mail began to unload the lighter at Pier 36 on February 15, it may be presumed that the crates had been so stowed by Clark on February 13 at Pier 92 — so Mc-Allister’s argument runs. The Berwind-White case is distinguishable. It went no further than to sanction a presumption that a broken pile, which by its very nature was a stationary object, “had remained in situ for a considerable time prior to the accident.” I think the presumption should not be extended to the movable crates involved here which for two days had been in McAllister’s control on the Tyler which had been moved by it from Pier 92 to Pier 36 perhaps in water rough enough to cause the crates to slide together and thus close a four inch space [all that was necessary], especially if on a slanting deck. For aught that appears, after proper stowage by Clark the crates may have been shoved together to make room for more cargo or room for passageway on the lighter’s deck. And on or after arrival at Pier 36 the Tyler may have bumped the pier with force enough to move the crates a few inches. These possibilities are not negated by the weight of the crates. For concededly a single longshoreman could separate the crates with a crowbar, notwithstanding their weight. I think the presumption sanctioned in the Berwind case not applicable to the situation here at least without evidence to negate these possibilities. Such evidence, if it existed, was within the reach of McAllister who received and controlled the cargo and moved the lighter. And on McAllister rested the burden of proof. Such, at least, are my individual views on this issue.
However, even if it was properly found that Clark by improper stowage breached its implied warranty of workmanlike service to McAllister, a majority of the court thinks there is no showing that this breach caused Red-dick’s injury. The Ryan case, supra, and the recent case of Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, indicate that when dealing with contractual indemnity in this type of situation the application of tort theories of liability, i. e., “active” or “passive” and “primary” or “secondary” negligence, is inappropriate. Under the general test of foreseeability applied to contractual liability, the breach must have been the cause of the injury. We think that in this case the latent defect in the board on the top of the crate was an intervening cause which broke any causal chain that might otherwise have existed. The only result of improper stowage was to cause a man to walk [301]*301on top of the cases and use a crowbar to pry them apart. If Reddick had been injured while trying to climb to the top of the crates, his injury might have been the foreseeable result of improper stowage and Clark in that event would have been liable over to McAllister. But Clark would not necessarily be liable for every conceivable mishap that Reddick might have encountered while on top of the crates. The evidence in this record indicates that the tops of these crates were made of pine boards which were between 1 and 1% inches thick. It was also shown that longshoremen frequently walked along the top of these crates without using dunnage boards and, indeed, an expert testified that dunnage boards are never used on the tops of these crates when unloading. If the crate to be moved is obviously weak and damaged the longshoreman stands on adjoining crates. There is nothing in this record to indicate that a 1-inch pine board was incapable of supporting the weight of a longshoreman if the wood was in good condition. Thus, we conclude that, even assuming proof of Clark’s improper stowage, Reddick’s injury was due to defects in the crate not foreseeable by Clark and hence not caused by improper stowage.
McAllister’s appeal against Cuba Mail relies upon the fact that Cuba Mail -did not furnish Reddick with dunnage boards or scantlings. However, the evidence already considered indicates that without such equipment knock-down crates might be properly unloaded. Further, as we have indicated, there was no evidence that the pine board in good condition would not have supported Red-dick’s weight.
Libelant’s recovery from McAllister is affirmed;
McAllister’s recovery over from Clark is reversed; and
The dismissal of McAllister’s claim against Cuba Mail is affirmed.