Opinion

McKie v. Diamond Marine Co.

  • 204 F.2d 132
Court
Court of Appeals for the Fifth Circuit
Filed
Jun 2, 1953
Status
Published
Author
Hutcheson
On the bench
Hutcheson, Borah, Rives
Cited by
76 cases
Authority
More cited than 24.6%

defining "member of a crew" in accordance with the three-pronged test

How later courts described this case

  • defining "member of a crew" in accordance with the three-pronged test

Written by the judges who cited it.

The opinion

HUTCHESON, Chief Judge

(dissenting).

I have little fault to find with the legal principles announced in the majority opinion and as little to find with its statement of the facts as opposed to the conclusions it draws from them.

I find myself, though, for the reasons hereafter briefly stated, unable to agree with its conclusion that there were disputed issues of fact and that the judgment should be reversed to permit of their determination on a trial.

It seems quite clear to me: that the record presented no disputed issues of fact and no basis for drawing more than an inference therefrom. It seems equally clear that the district judge was right, therefore, in concluding as matter of law that plaintiff was not a seaman and that he “had *137 failed to show a right to maintain the suit under the Jones Act, in admiralty or otherwise.”

I am further of the opinion that if the conclusion demanded by the evidence is that plaintiff was a seaman, and that the accident did occur on navigable waters, plaintiff could still not recover in the action because he was not “a master or member of a crew of any vessel”, and the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C.A. § 901 , furnished his exclusive remedy. Continental Casualty v. Lawson, 5 Cir., 64 F.2d 802 ; De Bardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481 ; Desper v. Starved Rock Ferry Co., 7 Cir., 188 F.2d 177 .

Since under either of these theories the judgment dismissing the action should be affirmed, I dissent from its reversal.

Rehearing Denied; HUTCHESON, Chief Judge, dissenting.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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