
    Edwin S. Harriman, Respondent, v. Penn Shipping Company, Inc., et al., Appellants.
   Judgment, Supreme Court, New York County entered May 5, 1971, after trial to a jury, unanimously reversed, on the law, and vacated, the action severed and the complaint against defendant-appellant Penn Shipping Company, Inc., dismissed, without costs and without disbursements, and the case against defendant-appellant Penn Navigation Company, Inc., remanded for trial anew, with costs and disbursements to abide the event. Plaintiff, a seaman aboard a vessel owned by defendant Navigation but operated by defendant Shipping, plaintiff’s employer, as Navigation’s agent, claimed that he was injured when he slipped on spilled oil and fell, striking his head. Shipping was agent for the disclosed principal Navigation, with no independent role for its own account in either operation or ownership, and there was no basis in the evidence for denial of dismissal as to Shipping. The court’s charge as to maintenance and cure was, at the least, confusing, compounded by refusal to admit into evidence hospital records, offered to prove the accomplishment of maximum cure. The court regarded this as a case of absolute liability — indeed, remarking in the jury’s presence that there is a liability here ” — disregarding the cogent argument that the mere presence of oil was not ipso facto a violation of the “duty * * * to furnish a vessel and appurtenances reasonably fit for their intended use.” (Mitchell v. Trawler Racer, 362 U. S. 539, 550; see also Pinto v. States Marine Corp., 296 P. 2d 1.) Further, the court did not permit the defense of contributory negligence to be considered, though established by plaintiff’s own testimony. These and other prejudicial errors require a new trial on plaintiff’s claims of unseaworthiness and maintenance and cure. Concur—Stevens, P. J., McGivern, Markewieh and Tilzer, JJ.; Kupferman, J., concurs in the result.  