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.