concurring and dissenting:
If I could be persuaded that Simko presented no evidence sufficient to go to the jury on this Jones Act claim, I would join fully in Judge Seitz’s opinion for the court. I agree that there was insufficient evidence of Simko’s status as a Jones Act seaman in the employ of American Commercial Barge Lines Company (ACBL), and that there was insufficient evidence that he was a Jones Act seaman on the ACBL barge # 2699 or that C & C Marine Maintenance Company (C & C) was a pro hac vice owner of that barge. But I believe that it was proper, on the evidence presented, to submit to the jury the issue of Simko’s Jones Act status as a member of the crew of the crane barge owned by C & C.
In Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976), we outlined the four elements required to support a finding that a plaintiff is, as against a particular defendant, a Jones Act seaman. The defendant must be plaintiff’s employer; the vessel must be in navigation; the plaintiff must have a more or less permanent connection with the vessel; and the plaintiff must have been aboard primarily to aid in its navigation. If on any of the four elements the evidence is insufficient to present a genuine fact issue, the Jones Act claim may not be submitted to the jury. Griffith v. Wheeling-Pittsburgh Steel Corp., supra, 521 F.2d at 36-37.
From the evidence presented the jury could have found the following facts. C & C has a landing on the bank of the Ohio River where it cleans and repairs barges. As disclosed in plaintiff’s exhibits P1-P8 (seven photographs and one diagram), C & C’s facilities include five mooring devices (called trie-tie clusters) permanently embedded in the bottom of the river, and several floating barges. The office barge, which is moored between two trie-tie clus*970ters, is reached from the shore by a long gangplank. Outboard of the office barge is moored a working barge, on which, along with other equipment, is a mobile, crawler crane. Barges turned over to C & C for cleaning and repair are moored outboard of and forward and aft of the crane barge. The crane is used to open the covers of barges for cleaning and to remove debris from their interiors. Simko was hired on February 22, 1972, and was assigned to work on the crane barge. His work was manual labor, including using a broom or shovel, carrying pumps, and helping with the hoses which ran from the crane barge and were used to wash down barges belonging to C & C customers. On the day of his death Simko was helping to clean the ACBL barge. While pulling on a hose in order to obtain more slack he lost his balance and fell into the river. There was no lifeline on the crane barge near enough to reach him during the brief time he was afloat before he was swept under a barge moored downstream from the ACBL barge.
Applying the Griffith standards to these facts it seems to me the jury could have concluded that Simko was a crewman on the crane barge. It is not disputed that he was employed by the owner thereof and the evidence strongly suggests that it was his regular work station. Thus his connection with it was sufficiently permanent to satisfy the Griffith test.
On the twin issues of whether the crane barge was a vessel “in navigation” and whether Simko was aboard to aid in navigation, the issue is closer. I think, however, that the evidence met these requirements as well. In Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), the Court held that a handyman, employed on a dredge which throughout his employment was anchored to the shore, was covered by the Jones Act. See also Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958) (pile driver operator on a Texas Tower permanently affixed to the ocean floor); Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958) (laborer doing odd jobs on a tug that had been taken out of service). These cases are dispositive. First, they indicate that Simko’s day to day tasks were sufficiently “navigational” to bring him within the scope of the Act.1 And all three clearly negate a rule that a vessel must be moving or at sea in order to meet the “in navigation” requirement. They are therefore in accord with our definition of that requirement in Griffith, where we observed:
As properly construed, the “in navigation” requirement is used in its broad sense, and is not confined strictly to the actual navigating or movement of the vessel, but instead means that the vessel is engaged as an instrument of commerce or transportation on navigable waters.
521 F.2d at 37. Under Griffith, the question, then, is whether the crane barge, which was in navigable waters and capable of movement, was used as an instrument of commerce on those waters. We have indicated that whether or not a vessel is in navigation for Jones Act purposes is one ordinarily to be decided by a jury. Mroz v. Dravo Corp., 429 F.2d 1156, 1165-66 (3d Cir. 1970). The jury here could have found that the crane barge, used not only as a mooring for vessels unquestionably in navigation, but also as a means for removing the hatch covers of and debris from those vessels and for cleaning and pumping them so as to facilitate their further use in transportation, was engaged in commerce on navigable waters.
The majority’s argument that Griffith compels a different result is, to put it mild*971ly, a strained one. In that case, the evidence showed conclusively both that Griffith was based on land rather than on a vessel and that by far the greater portion of his work was cargo handling — classically the task of a longshoreman, and flatly inconsistent with his claim of seaman status. See 521 F.2d at 37-38. In this case, Simko worked on board a vessel and his duties were fully consistent with seaman status. The result in Griffith therefore cannot be controlling here.
I am aware that in cases construing the in navigation test for claims of unseaworthiness, the Supreme Court apparently has adopted a somewhat more rigid test than that adopted in Griffith. See L, Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961); West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959). Moreover, as C & C points out, there are certainly cases from other circuits which suggest a different outcome even under the Jones Act. See, e. g., Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973) (plaintiff was a carpenter on a mobile floating construction platform moored on navigable waters. Held: not a vessel for Jones Act purposes). But see Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972) (plaintiff, an oiler on a land based dragline, was injured while loading the dragline onto a barge. Held: Jones Act question properly left to jury).
There are good reasons, however, for rejecting the approach of those cases. First, the facts of the Supreme Court’s own Jones Act decisions, which are controlling here, are flatly inconsistent with the approach adopted by the majority. As a purely formal matter, West and Roper are therefore not controlling. Nor is their logic persuasive in this situation, since both cases rest fundamentally on the notion that it is unfair to hold a shipowner of a vessel that has been withdrawn from maritime service to the standard of strict liability imposed by the seaworthiness doctrine. See 361 U.S. at 122, 80 S.Ct. 189. That concern is, of course, absent in Jones Act cases. Finally, insofar as these cases support any restriction upon the “in navigation” standard, it is clearly not the one which the majority relies upon. Indeed, in the Sieracki seaman context, the Supreme Court appears to have rejected a similar “in navigation” test based on “the specific type of work that each . . . [workman] is doing on shipboard at the moment of injury,” on the ground that “[t]he job analysis which [that inquiry] would call for would lead to fortuitous results.” West v. United States, supra, 361 U.S. at 122, 80 S.Ct. at 192. The same objection applies here. Simko’s maintenance duties were as meaningful to the “navigation” of barges upon which he worked and with which he dealt as the duties of his colleagues on the landing barge who were assigned to handle the mooring lines, or the duties of the handymen who were permitted to take their claims of seaman status to the jury in Senko v. LaCrosse Dredging, supra, and Butler v. Whiteman, supra. No reason of policy or precedent suggests the need for a different result here. I therefore conclude that there was sufficient evidence to submit to the jury the theory that Simko was a Jones Act seaman on the crane barge.
Since a directed verdict should have been granted on the claim that Simko was a Jones Act seaman on the ACBL barge, and we cannot tell whether the jury predicated its verdict against C & C on that theory, I agree with the majority that the judgment should be vacated. But on remand, since Simko’s administrator established a prima facie case of Jones Act status on the crane barge, I would grant a new trial before a jury on that claim as well as the admiralty claim.
. The majority’s attempt to distinguish Senko v. LaCrosse Dredging Corp., supra, is unpersuasive. The duties performed by the “deckhand” in that case, as recounted by the Court, required him to “clean and take care of the deck, splice rope, stow supplies, and, in general, to keep the dredge in shape.” 352 U.S. at 372, 77 S.Ct. at 417. The Court stated that from these facts alone, the jury could infer that the plaintiff was responsible for the seaworthiness of the vessel. 352 U.S. at 373, 77 S.Ct. 415. The facts of this case are virtually identical. The facts of the other cases cited, which the majority does not attempt to answer, are, of course, even more compelling.