concurring in part and dissenting in part:
I agree with most of the majority’s persuasive opinion, and specifically with its holdings that the Jones Act and the Longshoremen’s Act are mutually exclusive, that the Administrative Law Judge [ALJ] applied an incorrect legal standard in not following the Offshore Company v. Robison, 266 F.2d 769 (5th Cir. 1959) “contributed to the function of the vessel or to the accomplishment of its mission” test, and that as a matter of law one who is a pipeline welder on a pipelaying marine barge is a seaman and a member of the crew of the vessel. I also agree that, due to the AU’s error, the ruling for the claimant cannot be affirmed. However, in my opinion, we should not render judgment for McDermott, but should remand this case to the ALJ for further findings, as he apparently tried the entire case under a basic misapprehension of the applicable law and as a result never properly focused on the controlling factual issues.
As the opinion of the Review Board reflects, the claimant took the position that Boudreaux had worked for McDermott (which is engaged in shipbuilding, ship repair, and other businesses, as well as in the shipping business) in two different and distinct capacities, each at different times: (1) a pipeline welder, in which capacity he went to sea on a pipeline laying barge and there welded the pipe which the barge was laying to connect the offshore wells to the shore; and (2) a ship repairman, in which capacity he was shore based and performed various jobs, including the repair of barges. It was claimant’s theory that Boudreaux was employed as a ship repairman when he died, and that in such capacity he was not a seaman or a member of a crew of a vessel. McDermott’s position was that Boudreaux was, at all times, a pipeline welder whose job was to weld pipe aboard a marine pipeline laying barge, and that although he was performing shore based ship repair services when he died, this was merely a temporary assignment, and he nevertheless retained his status as a pipeline welder more or less permanently assigned to its fleet of barges for sea duty in such capacity on them. If McDermott’s theory were factually correct, then it was entitled to judgment, for plainly under Robison a marine barge pipeline welder is a seaman. If, however, the claimant’s theory were factually correct, then when Boudreaux died he was not a seaman. The ALJ did not focus on, or resolve, this factual dispute, because in his view of the law it was irrelevant since he rejected Robison and considered that at his death Boudreaux would not have been a seaman even if he were then in the status McDermott claimed he was, that is, a pipeline welder.
The pertinent parts of the ALJ’s opinion are as follows (numbers in brackets inserted for ease of reference):
“[1] In this case I have found that decedent, in the year preceding his death, spent no more than three and one-half months as an offshore pipeline welder on Lay Barge 23 and the remainder working shoreside in the yard on repair, refurbishing or remodeling work on the barge. [2] However, assuming, arguendo, that decedent spent twelve months as a pipeline welder, his primary duties then were to fit and weld pipeline extending from oil wells to oil distribution facilities. Therefore, I find that decedent was not aboard Lay Barge 23 primarily to aid in navigation and, consequently, is not precluded from coverage as a member of the crew. U
*461“[3] The barge upon which the decedent was working was a vessel within the meaning of the Act. Norton v. Warner Co., 321 U.S. 565 [64 S.Ct. 747, 88 L.Ed. 931] (1944). Furthermore, the barge was in navigation.... [4] Furthermore, I find that decedent had a more or less permanent connection with Lay Barge 23 although, for a significant portion of the year preceding his death, decedent was not earning the much higher pay of a pipeline welder and there is evidence his job title remained the same. ii
“[5] For several months prior to his death decedent had been engaged in maintenance, repair, refurbishing and remodeling work on Lay Barge 23. Employer is a substantial company engaged in shipbuilding, ship repair and other maritime functions, performed by various divisions of the Employer. Although decedent was nominally employed by Employer’s pipeline Division, the nature of his duties at the time of death is controlling herein, and not necessarily which division pays his salary. Decedent was engaged in ship repair and maintenance work during the pipeline slow season and I conclude and find that Employer has satisfied the situs [as the Review Board notes, “status” is intended] requirement. Employer should not be permitted to defeat coverage by assigning divisional nomenclatures to the various maritime functions performed by the Employeer [sic] and its employees.” [Footnote omitted.]
Those parts of the ALJ’s opinion designated by [1] and [5] above appear to indicate that Boudreaux was not a pipeline welder when he died, but rather a ship repairman. The language at [2] seems, in effect, to say, “but even if he were a pipeline welder it would make no difference.” The language at [4], on the other hand, suggests a finding that Boudreaux was a seaman under the Robison test. This finding, however, does not specify in what capacity — as pipeline welder or ship repairman — Boudreaux had “a more or less permanent connection with Lay Barge 23.” Lay Barge 23 had been undergoing repairs for about a month or two before Boudreaux started to work on her, and the repairs continued for some six weeks after his death. In all she would be under repair at least six months. Boudreaux was not a member of her crew when she came in for repairs. And, as the majority opinion notes, if Boudreaux had gone to sea it would have been on barge 21, not on barge 23. So far as I can determine, the ALJ never found that Boudreaux had a more or less permanent connection as a pipeline welder to a fleet of pipeline laying barges.
The Review Board apparently construed the ALJ’s opinion as finding Boudreaux “was clearly a ‘ship repairman’ in employer’s yard from March 23, 1976 until his death on June 18, 1976.”
It is simply impossible to determine with confidence just what the ALJ found, or to what extent his findings were infected by his erroneous disregard of Robison. Accordingly, the rulings below having been for the claimant, I would not render judgment for McDermott, but would rather remand so that the ALJ could consider the case in light of the correct legal rules.
Of course, if on this record Boudreaux was a seaman as a matter of law, then a remand would be pointless and judgment should be rendered for McDermott. But in my view, the facts of this case do not establish Boudreaux’s seaman status as a matter of law.
As the majority recognizes, the issue of seaman status is usually a question of fact. In Senko v. La Crosse Dredging Corporation, 352 U.S. 370, 374, 77 S.Ct. 415, 417, 1 L.Ed.2d 404, 408, (1957), the Supreme Court said “the determination of whether an injured person was a ‘member of a crew’ is to be left to the finder of fact....” In Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966), this Court stated:
“Whether a person is a seaman depends largely on the facts of a particular case, or as stated, on the totality of circumstances. It would be the rare factual situation where the question could be resolved as a matter of law.” [Emphasis added.]
*462More recently, Judge Rubin wrote for this Court as follows in Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447 (5th Cir. 1980):
“Turning first to the question of the effect of the assignment to work ashore, how long a seaman’s status continues after a shoreside assignment is itself a fact question dependent on such factors as the duration of the assignment, its relationship to the employer’s business, whether the employee was free to accept or reject it without endangering his employment status and any other factors relevant to the ultimate inquiry: at the moment of injury was the employee a seaman by conventional Jones Act criteria who happened not to be on navigable waters, or was he at that time no longer a seaman whatever his past relationship or his future prospects ? u
“Because seaman status ordinarily is a jury question, a court may rarely conclude as a matter of law that an individual is or is not a seaman within the meaning of the Jones Act. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1162 (5th Cir. 1972)....
“But for Guidry’s prior relationship to a Soloco vessel and his expectation of returning to it, he could not have been a seaman when he was injured. These were necessary conditions for establishing Guidry’s seaman’s status but they were not alone sufficient. It was also necessary that he establish that Soloco continued to be his employer and that the nature of his assignment ashore did not sever his vessel connection and thus end his maritime status. The jury found that Soloco had temporarily assigned Guidry to perform work on the land with the intention that he return to work on the barge at the completion of the job. The court, however, did not define what was meant by the term ‘temporarily’ and the jury did not decide the basic question whether Guidry was a seaman when he was injured.” [614 F.2d at 453-54; emphasis added.]
Here the circumstances supportive of a factual conclusion that Boudreaux was not a seaman when he died include the following: (a) for over six months next preceding his death, he had neither worked as a pipeline welder nor been at sea; (b) in the year before his death, he worked offshore as a pipeline welder only some three and one-half months, but worked nearly six months, three of which were immediately before his death, as a shore worker or ship repairman; (c) as a ship repairman he was paid a significantly lower wage than as a pipeline welder and in the former capacity he lived at home and commuted to work; (d) barge 23, on which Boudreaux was working as a ship repairman when he died, was not then ready to go to sea and did not do so until some six weeks after his death, having then been under repairs for about six months; (e) while under repair, barge 23 did not have a crew assigned to it; (f) when it came in for repairs, Boudreaux was not a member of its crew; (g) McDermott, Boudreaux’s employer, was engaged in the shipbuilding and ship repair business, as well as in the business of owning and operating vessels, and clearly has ship repair employees who are not seamen.
Of course, in certain cases the facts shown may establish seaman status, or the lack of it, as a matter of law.1 But such are rare instances, especially where, as here and in Guidry, the question is “how long a seaman’s status continues after a shoreside assignment,” or whether “the nature of his assignment ashore did not sever his vessel connection.” Moreover, I am aware of no case with facts remotely comparable to those here which has held an individual in circumstances such as Boudreaux’s to be a seaman as a matter of law. Certainly, Dou*463cet v. Wheless Drilling Company, 467 F.2d 336 (5th Cir. 1972), furnishes no support for holding that Boudreaux was a seaman as a matter of law. The Jones Act plaintiff in Doucet was concededly a member of its crew when the vessel came into port on September 10, and he was injured while doing repair work (along with some other members of the same drilling crew) on this same vessel (chiefly its drilling equipment) six days later. The vessel went back out to sea on September 29 with the same crew. Nothing in the opinion indicates plaintiff was paid a lower wage rate while doing the repairs or that he was not quartered on the vessel. Even in those circumstances, this Court felt it appropriate to support its holding, sustaining a summary judgment ruling that plaintiff was a seaman, with the following alternative ground:
“If, however, the trial judge erred in his summary dispositions on these limited issues, Wheless [the ship owner] still was allowed to introduce additional evidence at trial, and the court made painstaking findings, and then corrected findings, based on all the evidence. Indeed, Wheless has had several bites at the same apple.” [467 F.2d at 339.]
Doucet, then, is plainly a case at one end of the continuum, barely over the line allowing seaman status determination as a matter of law. Boudreaux’s situation is clearly far removed. The opinion in Doucet actually supports the proposition that Boudreaux cannot be said to be a seaman as a matter of law.2
Accordingly, while I agree with the reversal of the award in favor of the claimant, as the AU applied an incorrect legal test in determining that Boudreaux was not a seaman, I dissent from the rendition of judgment for McDermott on the basis that Boudreaux was a seaman. The fact finder determined that Boudreaux was not a seaman. His status as a seaman has been established neither as a matter of law nor by fact-findings which can be characterized with any confidence as responsive to the controlling legal issues and uninfluenced by an erroneous view of the law. Accordingly, I would reverse and remand the case to the ALJ for appropriate findings.
. For example, in Guidry the plaintiff was held as a matter of law not to be a seaman employee of his shore based “borrowing” employer; whether he was a seaman employee of his “lending” employer vessel owner was held to be a question of fact. If Boudreaux had been injured while at sea on the barge employed as a pipeline welder he would, of course, have been a seaman as a matter of law. See Porche v. Gulf Miss. Marine Corp., 390 F.Supp. 624, 630-31 (E.D.La.,1975) (Rubin, J.).
. In Bodden this Court appears to have been placed at the other end of the continuum, where nonseaman status appears as a matter of law, the following situation, which in many respects is similar to that here, viz:
“... where the vessel is tied up for the winter with only a maintenance crew, and claimant, a crew member during the season, is retained as a laborer on an hourly basis and is not required to live aboard the vessel.” [369 F.2d at 273.]
While the quoted Bodden passage most directly pertains to the vessel “in navigation” aspect of seaman status, it also recites factors relevant to the relationship between the claimant and the vessel. See also Desper v. Starved Rock Ferry Co., 342 U.S. 187, 191, 72 S.Ct. 216, 218, 96 L.Ed. 205, 209-10 (1952):
“... he was a probable navigator in the near future, but the law does not cover probable or expectant seamen but seamen in being. It is our conclusion that while engaged in such seasonal repair work Desper was not a ‘seaman’ within the purview of the Jones Act. The distinct nature of the work is emphasized by the fact that there was no vessel engaged in navigation at the time of the decedent’s death.” [Emphasis added.]
Note that the Supreme Court says “is emphasized by,” not “arises from” or “consists of’ or “is established by” or other language indicating that the decision was exclusively, or even primarily, based on the fact that there was no vessel then “in navigation.”