(dissenting) :
This is a most troublesome area. I will contribute nothing to the Court’s running solution of its many variables by a too doctrinaire approach. Recognizing, therefore, that the answer is not easy I nevertheless think this opinion, when considered along with other recent ones, see e. g., Drake v. Dupont de Nemours & Co., Inc., 5 Cir., 1970, 432 F.2d 276, 1970 A.M.C. 1915, is driving us to a position which becomes more and more inflexible and effectively waters down protection which the law gives to Sieracki-Ryan-Y aka [Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 733; Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448] vicarious seamen. It does this in two principal ways. First, it magnifies West1 to the point where a ship is not a “vessel”. This denies warranties of seaworthiness where the “operational withdrawal” is for but a brief period of time. Second, with a Richard Dana Two Years Before the Mast approach, we are measuring the activity of the worker as though the tools and facilities of the Yankee Clipper were the guide for the Twentieth Century. Today’s sailor — free from any real prospect of being Shanghaied or his health destroyed from an absence of the daily ration of anti-scorbutics — is everywhere using sophisticated equipment and techniques of which radar and electronic fire-detecting devices are examples, not to mention the exacting activities of crew members of our nuclear submarine fleet or the historic atomic A/Y Savannah. This expands his role beyond the simple task of one who can hand, reef and steer.2
Here the Court holds (i) M/V Flying A was withdrawn from navigation because she was in shipyard undergoing maintenance repairs for about 15 days and (ii) Johnson, in sandblasting, with a device used for decades in refurbishing the exterior of land-based buildings was not doing the work of a traditional seaman.
The Negligence Claim
Before analyzing these two problems I think it helpful to discard as quite irrel*118evant some factors which the Court keeps bringing back in. These relate to the disposition of the “negligence” claim and the fact that the injury occurred outside of — not on — the vessel arising from the use of equipment furnished, not by the vessel, but the shipyard (or its lessor). Ever since Alaska S. S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, it has been clear that the shipowner is not insulated from responsibility because the contractor furnishes equipment of a kind which the shipowner reasonably knows will have to be used. Italia Societa v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732. From the standpoint of jurisdiction 3 — in the sense of the application of maritime principles— that depends not on the locale of the injury, but on the nature of the work in relation to the operation of the vessel.4 The Sieracki-Ryan-Yaka seaman has a clear right to recovery for injuries sustained on the pier from cargo mishandled by the stevedoring contractor. Burrage v. Flota Mercante Grancolombiana S.A., 5 Cir., 1970, 431 F.2d 1229, 1970 A.M.C. 2254; Gutierrez v. Waterman Steamship Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, 1963 A.M.C. 1649. And in a number of instances we have held the shipowner accountable for the seaworthiness of devices located and used on the land. Deffes v. Federal Barge Lines, Inc., 5 Cir., 1966, 361 F.2d 422, 1966 A.M.C. 1415; Law v. Victory Carriers, Inc., 5 Cir., 1970, 432 F.2d 376, 1970 A.M.C. 2215, cert. granted, 1971, 401 U.S. 936, 91 S.Ct. 937, 28 L.Ed.2d 215.
If the Court is wrong on (i) withdrawal of the vessel from navigation and (ii) the lack of traditional seaman’s work, the negligence claim obviously presented a factual dispute on which the injured seaman has not yet had a trial of a kind the law assures him, either with or without a jury. Summary judgment on that score was unauthorized.
Withdrawal of Vessel from Navigation
Because her 13 man crew left on arrival in dry dock and did not return until some fifteen days later when repairs were completed, the Court holds M/V Flying A was withdrawn from navigation in the West-Roper sense. Just what the presence or absence of the crew has to do with the problem has never been clear and even my own limiting concurrence in Moye5 is less and less satisfactory. A longshoreman injured in the hold from a defective fall or line (furnished by the employer stevedoring contractor) has a plain right of recovery on unseaworthiness. The presence or absence of the crew of 50 sailors is completely irrelevant.6 Of course it would be relevant in those instances in *119which it is the crew, not the contractor’s employee, which brought into play the unseaworthy conditions. A ship is hardly withdrawn from her employment as a vessel when she goes into a shipyard for required periodic survey and maintenance repairs — no more so than she would be when, as a cargo vessel, she puts into port for a 10 day discharging and loading of cargo with all or part of the crew allowed extended shore leave.
Of course duration of the “lay-up” is important, and even more so, is the activity (or lack of it) in an operational sense. To put a ship into a mothball fleet, and then to break her out one or two years later with the certain knowledge that re-outfitting is essential, is one thing. Likewise is the use of the vessel as a floating granary. But when the vessel is actively engaged in commercial trade — as M/V Flying A was for the year preceding drydocking — and she returns directly to that activity as an ocean-going bulk petroleum carrying vessel immediately after completion of the shipyard work, it is artificial to think that for that brief period she was withdrawn from navigation, and, for purposes of the law, that she ceased to be a ship. And, at a minimum, that conclusion could only be reached by a fact-finder from conflicting inferences, not as a matter of law by summary judgment.
From a reading of this Court’s opinion one would think that the vessel was being wholly rebuilt. Cf. Watz v. Zapata Off-Shore Company, 5 Cir., 1970, 431 F.2d 100, 1970 A.M.C. 2307. Just how judges — “Solomonic or life tenured” 7 — can reach this conclusion as a matter of law, I do not know. If we know anything we know that in this inflated world in which a slight traffic tap precipitates an automobile repair bill running into the hundreds of dollars for bumper and fender damage, $30,000 will not buy much in the way of steel and skilled labor.
But we need not search out the limits of our prescience for this record shows not extensive re-outfitting, but routine, periodic maintenance repairs. Out of the 42 items on the ship repair invoice, 34 were for items not in excess of $500. Indeed, of the 34, over 16 were for less than $200 each. They covered such routine items as removal of a wasted sun visor over the pilot house window, building up a docking plug in a cargo tank, mucking out (cleaning) the anchor chain locker of mud and debris, a micrometer reading of the two tail shafts, renewal of a six-foot length of a one-inch pipe guardrail, replacing five deck vent ports, repairing five treads in two ladders (stairs), installing five steam hose hangars, and the like. The most extensive items were sandblasting and repainting the hull ($10,000) and the necessary lay days ($1,100). None of the other items was of a radical unusual or extensive nature. These include renewal of a 10-inch deck cargo header line on the main deck ($2,625), repairs to the starboard generator ($1,-562), and pulling and reinstalling tail shafts and propellers ($2,952). Although these were important repairs which a prudent shipowner would undertake,8 there is not a stitch of evidence in the affidavits or depositions to indicate that they were anything but routine periodic survey and maintenance repairs.
But considering the size of the vessel —260 feet in length — and her obvious value,9 neither the dollar amount of these repairs nor their nature indicated anything so drastic as to characterize *120the vessel as “withdrawn” from navigation.
In Grigsby 10 we rejected the literalism of West that a vessel would be taken out of navigation merely because the ship was not in the immediate control of her crew. From the instant case and other recent ones I fear that although we verbally give heed to our restricted reading of West, we take 10 to 15 days plus absence of the crew to add up in a mechanical way to the withdrawl from navigation. To be sure the Court says a case must be judged on its own facts. But what is the standard? — the irrelevancy of no crew member aboard? — the given fact of a number of days that it was inoperative ? — the nature of repairs in terms of operational navigability ? Or what ?
Finally on this point the most that can be made out is that whether nature, kind, and cost (in dollars, time or both) of the shipyard work was so great as to characterize the temporary layup of the vessel as a withdrawal from navigation was a question of fact for a trial, not one for summary judgment on this record.
Lack of Traditional Seaman Work Little need be said about the second phase — traditional work of a seaman. The fact is that in Jackson11 the Supreme Court has itself abandoned the rigid standards of Halecki.12
When the tool used (sandblaster) was no more novel than that employed for decades in building refurbishment, it does not change the nature of the work that is being done — chipping off the paint and rust — from that done by sailors for centuries. To paint the cleaned surface with a compressor-powered air *121brush would hardly change the work from painting with a brush out of a paint pot even though in the glorious days of the Clippers, Richard Dana and his foe’s’le mates would have searched long in the bos’ns’ locker for such a device.
M/V Flying A was very much in service — indeed the overhaul was to keep her in service, not to restore her to a service long abandoned. And with sandblaster in hand Johnson was doing that done for decades by those who go down to seas in ships. Or at least a jury should be the one to say.
I therefore respectfully dissent.
. West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161.
. See Norris, The Law of Seamen, 3d Ed., Vol. 1, § 9, pp. 25-26. “[It] was once said that a ‘seaman’ meant a person who could ‘hand, reef and steer,’ a far cry from the duties of many of today’s seafarers. Unquestionably, the man in the wlieelliousé of a deep-sea vessel with hand on helm keeping the ship on course is a seaman; and yet we find that the term has been applied to longshoremen; to a radio operator; to a stewardess; to a ferry hand; and even to a musician aboard a vessel.”
. In addition to maritime principles there is diversity plus requisite amount in controversy here.
. O’Donnell v. Great Lakes Dredge and Dock Company, 1943, 318 U.S. 36, 42-43, 63 S.Ct. 488, 492, 87 L.Ed. 596, 602, 1943 A.M.C. 149:
“The right of recovery in the .Tones Act is given to the seaman as such, and, as in the ease of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters.”
In Braen v. Pfeifer Oil Transport Company, 1959, 361 U.S. 129, 80 S.Ct. 247, 4 L.Ed.2d 191, 1960 A.M.C. 2. the Court on O’Donnell, supra, reiterated the “fact that the injury did not occur on the vessel is not controlling, * * *. A ‘seaman’ may often be sent off ship to perform duties of his employment * * * [but he] is as much in the service of his ship when boarding it on first reporting for duty, quitting it on being discharged, or going to and from the ship while on shore leave, as he is while on board at high sea.”
. Moye v. Sioux City & New Orleans, Inc., 5 Cir., 1968, 402 F.2d 238, cert. denied, 1968, 395 U.S. 913, 89 S.Ct. 1759, 23 L.Ed. 226.
. For example, had Johnson been chipping paint on the scaffold while the full crew was aboard M/V Flying A seaworthy warranties would be present even though the presence of the crew contributed nothing toward the accident or its causes.
. Phillips v. Martin Marietta Corporation, 5 Cir., 1969, 416 F.2d 1257, 1259 (dissent), rev’d 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 [1971].
. A number of the items were marked “ABS”. This refers to the American Bureau of Shipping which, in the enforeement of federal ship safety standards, has a quasi-governmental status along with the Coast Guard.
. At least if $30,000 was disproportionate to her value it ought to have been proved as a fact which was not done here.
. Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011, 1969 A.M.C. 1513, cert. dism’d. Fidelity & Cas. Co. v. Grigsby, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531; this was upheld on “instant unseaworthiness”, 412 F.2d 1011 at 1030; in Usner v. Lukenbach, 1971, 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562.
. Jackson v. Lykes Bros. Steamship Co., Inc., 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488. At note 4 of this opinion the Court pointed out:
“In 1953 this Court held in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, that other kinds of maritime employees, besides stevedores, who performed jobs formerly done by seamen were entitled to the seaworthiness protection given in Sieracki. There we said:
“ ‘It is pointed out that Sieracki was a “stevedore.” Hawn was not. And 1-Iawn was not loading the vessel. On these grounds we are asked to deny Hawn the protection we held the law gave Sieracki. These slight differences in fact cannot fairly justify the distinction urged as between the two cases. Sieracki’s legal protection was not based on the name “stevedore” but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which 1-Iawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law.” 346 U.S., at 412-413, 74 S.Ct., at 206, 207 [98 L.Ed. at 152, 153].
Subsequent decisions in line with the general concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the seaworthiness doctrine. Carpenters (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143); electricians (Feinman v. A. H. Bull S. S. Co., 3 Cir., 216 F.2d 393) ; shipcleaners (Torres v. The Kastor, 2 Cir., 227 F.2d 664, and Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784); repairmen (Read v. United States, 3 Cir., 201 F.2d 758); and riggers (Amerocean S. S. Co. v. Copp, 9 Cir., 245 F.2d 291), who performed jobs formerly done by seamen, have recovered from shipowners on the seaworthiness doctrine. See Note, 75 Yale L.J. 1174, 1183.”
. United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541.