The opinion
Jones, Senior Judge,
concurring in the result:
This is a very close case. It is true that there are elements of similarity between the facts of this case and Cape Shore Fish Co., Inc. v. United States, supra, on which the defendant relies and which is cited in the majority opinion. However, there are several vital differences between the two cases which will be discussed briefly.
This case is much more like the situation of an independent contractor or a charter boat contract than was the relationship in the Cape Shore decision.
I am persuaded to believe that most of the restrictions in the instant case were the natural ones that would be written by any careful owner into a contract; restrictions that would be mainly for the protection of the owner’s property. For instance, the right to forbid the taking of liquor onto a ship, that for an indefinite period of time would be completely out of the supervision and control of an owner, is a most natural restriction in the leasing or letting of any property. One extreme drinking party might result in great damage to any ship that was in good condition. Also, due to local conditions affecting the fishing industry, the owner was justified in instructing the captain to avoid Mexican waters and ports. If the boat’s mechanical condition was unsatisfactory for a long trip, the owner could restrict the captain to. a nearby *56 fishing area. The owner could also request that the captain not hire certain objectionable crew members. These examples are not necessarily consistent with an employer-employee relationship.
Some of the vital differences between the facts in this case and in the Cafe Shore case are as follows: In the latter case the union contract required the boatowner (taxpayer) to pay certain minimum wages to the captain and crew whenever an individual’s share of the voyage was less than $10.00. If a different crew sailed on the next trip, the expenses of the “broker” were borne by the owner. The same union contract called for the owner to provide “maintenance and cure” to the captain and crew for sickness or'injury occurring in service. These owner-provided benefits were not present in the instant case.
Also, in the instant case the captain and crew had to bear the expense of their groceries and one-half of the bill for ice. In addition, the owner-taxpayer here had no control over the operation of the boat. In Cafe Shore the owner controlled the time of departure, the duration of the voyage, and the time of return. The working hours of the captain and crew while underway were also regulated by the union contract. None of these elements of control exist in the instant case.
It is difficult to lay down a sharp dividing line. On the other hand, there are some elements that tend to take this case out of the charter boat or independent contractor classification.
The cost of fuel, of repairs to the boat, hull insurance, and protection and indemnity insurance were carried by the boat-owner. The owner paid one-half the docking charges whenever the boat docked somewhere other than its home port. The owner-taxpayer had a financial interest in the company that sold fuel and ice to the captain, and the company that purchased the shrimp. He required the captain to deal with these companies. If the captain had to unload his shrimp in another port, the owner still designated the purchaser, and the market price for shrimp in the home port was still used in determining the shares for the captain and crew members.
*57 There are other facts favorable to both the plaintiffs and the defendant, most of which are listed in the majority-opinion.
As indicated in the majority opinion, there is no sharp dividing line in these employee-independent contractor cases. Each one must be determined on the facts developed and on the particular set of circumstances.
I feel that the captains of these shrimp boats are very near to being independent contractors. However, in an effort to balance all of the facts present in this case, I have reached the conclusion that the result set out in the majority opinion is the correct one and I therefore concur in that conclusion.