(dissenting) .
In approaching these seamen actions, the words of Mr. Justice Story (sitting as Circuit Justice) should always be very much in mind:
“Every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; * * * because they are credulous and complying; and are easily overreached.” Harden v. Gordon et al., 11 Fed.Cas., pp. 480, 485 (No. 6,047) (C.C.Me. 1823).
In connection therewith, and under the circumstances of this case, the right judicial approach was suggested recently by Archibald Cox in a tribute to former Chief Justice Warren. Professor Cox wrote:
“Increasingly often * * * lawyers at the bar found that arguments based upon precedent, accepted legal doctrine, and long range institutional concepts * * * foundered upon Chief Justice Warren’s persistent questions, ‘Is that fair ?’ ” Cox, “Chief Justice Earl Warren,” 83 Harv.L.Rev., 1, 2 (1969).
So too here, the majority view, I respectfully submit, does not pass the test embodied in the question, “Is this fair?” To the contrary, under the circumstances before us, depriving plaintiff of his merited jury trial is unequivocally unfair.
*538This case, filed in 1965, was sent back to the trial court for a jury trial in May, 1968. Haskins v. Point Towing Company, 395 F.2d 737 (3 Cir. 1968). Yet appellant, who evidently was seriously injured and permanently disabled, has not yet had his proverbial day in court. Our remand, of course, soundly recognized that if defendant was entitled to a dismissal of the action as a matter of law, “ * * * the district court should therefore afford defendant an opportunity by appropriate motion to raise the question of the sufficiency of the evidence * * * to make out a case for consideration by a jury.” At 743. As I see it, the district court in granting defendant’s motion for summary judgment clearly committed error.
A summary judgment motion must be denied unless “ * * * There is no genuine issue as to any material fact * * Rule 56(c), Fed.R.Civ.P. 28 U.S.C.A. In this matter, instead of having before it just pleadings and depositions, etc., as is generally the case on summary judgment, the court below had the benefit of the transcript of the trial to the court previously held. Viewing the situation most favorably to appellant (then the opponent of the summary judgment motion), there was a genuine issue as to a material fact i. e. although certain records tended to indicate that Haskins was not an employee of Point Towing — the key issue since the matter of unseaworthiness and appellant’s injury were established — Haskins testified that he was a Point Towing employee at the time of his unfortunate mishap. On summary judgment, the trial court should not have attempted to evaluate Haskins’ testimony or judge his credibility. Those were jury issues.
Both the trial court and the majority assert that the recorded evidence with respect to appellant’s employment would have, in a jury trial, compelled the granting of a motion for a directed verdict. I cannot agree. To the contrary, I would find no error in a jury’s conclusion that Haskins’ testimony that he was a Point Towing employee was more persuasive than evidence to the contrary. The suggestion that Haskins, an illiterate, only “thought” that he worked for Point Towing is unjustified. After all, William F. Bryan, “a pilot and captain” for Bos-worth (the owner of the entire shipping enterprise involved) for four years and captain of the vessel on which appellant was Second Engineer at the time of the accident testified that he (Bryan) worked on several vessels during the course of his employment, and further testified that he was never informed as he was assigned to different vessels that he was changing employers (Tr. 207). As captain, he had the log books and time sheets for various vessels he worked on, unlike Haskins, which indicated his employer (Tr. 217). Nonetheless, despite the various Bosworth companies involved, the testimony clearly indicates that Bryan's basic employer was Bos-worth :
"Q. You work(ed) (sic) for Mr. Bosworth ?
A. Yes, sir.
Q. During what period?
A. From July 29, 1961 until June 1965.
Q. Now, do you remember, sir, the names of vessels that you worked on while you were working with Mr. Bos-worth?
A. Yes, sir.” (Tr. 203). (Emphasis supplied)
Likewise, although the majority indicates that there is no evidence that Chief Engineer Clyde Robinson had any authority to hire Haskins as Second Engineer for Point Towing, Haskins’ testimony unmistakably indicates that he was persuaded by Robinson to give up his logging and sawmill business in Mississippi and to travel to Paducah, Kentucky, where he boarded the Bowles and commenced his employment with Point Towing; Robinson actually hired Haskins (Tr. 11-15; 72-76). He also testified that he was “pretty certain” that Point Towing was the employer’s name listed on his income tax returns (Tr. 90).
*539The statement that Haskins signed in the hospital to the effect that he was employed by Bulk Towing does not change this to any degree. Admittedly Haskins was illiterate. He was still in great discomfort two days after his accident when the lawyer, John Epling, an attorney for the owner of Bulk Towing and Point Towing,1 asked Haskins to sign a statement, which Haskins asserted was prepared in advance and not read to him. Tr. 174-178. That statement which contained language to the effect that Haskins was a Bulk Towing employee not only is suspect in this situation, but the whole incident surrounding its signing might well lead a jury to believe that there was an effort made to trick Haskins into signing a damaging statement, and in that light Haskins’ testimony probably would be viewed with the utmost credibility by a jury.
All in all, the impact of the testimony is that bare-boat charter or not, separate corporate entity or not, there was sufficient disputed material evidence on the problem as to Haskins’ employer to defeat the defendant’s summary judgment motion. Begardless of which account Haskins’ pay checks were drawn on, they were given to him, it is his contention, as a Point Towing employee in a Point Towing envelope. Haskins, by insisting that the factual employment question be passed upon by the triers of the fact, is not asking favors. He is simply asking that right be done by the trial of his claim according to the law of this land. In this connection it should be noted that examination of the alleged secret bare-boat charter, and separate corporate entities of the various segments of Bosworth’s enterprise, does not compel the conclusion that the crews assigned to the various boats operated by Bosworth’s various corporate entities did not work for Bosworth and his Point Towing Company. Certainly it does not make sense to dismiss the evidence that Haskins worked for Point Towing with the conclusory phrase that he only “thought” that he worked for Point Towing. And above all, on summary judgment, it was plainly erroneous to evaluate Haskins’ testimony and credibility.
In its memorandum granting defendant’s motion for summary judgment, the district court stated that “ * * * It appears that the libellant’s efforts to establish employment and control by Point Towing Company are designed primarily for the convenience of Pittsburgh counsel.” Memorandum, Admir. No. 65-49 (dated Dec. 26, 1968). This comment would appear to be unwarranted for at least two reasons: First, we know from appellant’s attorney that the case was forwarded to him by Chicago counsel. Thus it would seem that he did not even select the forum, but rather tried to properly handle the matter entrusted to him; Second, since Haskins himself maintained and testified that be was employed by Point Towing, a Pennsylvania corporation, the choice of forum does not appear to have been baseless.
Finally, counsel for the appellee urged affirmance on the basis of this Court’s recent per curiam opinion in Welsh v. Utah Dredging Co., 403 F.2d 217 (3 Cir. 1968), and the majority adopted that view. Welsh is clearly distinguishable on its facts. The record in that decision plainly reveals that Welsh had actually signed an employment contract with a different firm than the defendant in that suit. Haskins, it must be admitted, never signed any employment contract.
For the reasons heretofore stated, I would remand, and order that the case be placed on the current jury trial calendar as this is a 1965 suit.
. John Epling was also an incorporator of Balk Towing Company, Tr. 277.