concurring and dissenting:
I concur in the decision to remand this case to the district court for the purpose of exploring diversity jurisdiction. With due respect to the majority, however, I cannot agree that the federal courts lacked admiralty jurisdiction over the plaintiffs’ claims against Penrod.1 An essential function of our admiralty responsibility is undercut by the majority’s holding that allegations of negligence against a navigable jack-up barge lying in navigable waters lack a “maritime nexus” sufficient to invoke admiralty jurisdiction.
The majority’s reasoning follows three mutually interdependent lines. First, it is asserted that our circuit’s prior authorities do not permit the assertion of admiralty jurisdiction over a claim by a ship construction worker against a partially completed vessel. Second, the majority purport to disavow admiralty jurisdiction based on the Executive Jet2 test as supplemented by our decision in Kelly v. Smith.3 Third, the majority place significant weight upon the previous panel holding in this case, either as a matter of stare decisis or law of the case. I shall respond to these points in reverse order.
Despite its perhaps over-broad wording, Molett I does not resolve the federal courts’ jurisdiction over plaintiffs’ claims against Penrod. While that opinion refers generally to “the accident” in its analysis of the Executive Jet maritime nexus test, the Molett I panel was specifically considering Gearench’s and Columbus-McKin-non’s roles in the accident, and its ruling was that Gearench’s third-party cross-claim against Columbus-McKinnon was not grounded in admiralty. 826 F.2d 1428. Molett I stated that “[t]he fatal accident had no greater impact on maritime commerce than if it had occurred while the derrick was being erected in the Mississippi ship yard.” 826 F.2d at 1426. Yet, in the same paragraph, it recognized that the question was whether “the role in the accident attributed to Gearench and Columbus-McKinnon creates [a] substantial maritime nexus.” The relevant portion of the opinion concluded that “Molett’s and Landry’s product liability claims and Gearench’s related claim for indemnity, therefore, are governed by Louisiana law.” Id. at 1428 (emphasis added). As Executive Jet requires, 93 S.Ct. at 501, and Molett I recognizes, 826 F.2d at 1426, maritime jurisdiction applies if the wrong bears a significant relationship to traditional maritime activity. That the wrong asserted by plaintiffs against Gearench was a products liability claim does not ipso facto prevent the wrongs they asserted against Penrod from being maritime torts.4
*1230Because Molett I is not decisive, the majority’s Executive Jet-Kelly analysis is left largely rudderless. The majority go on, however, to make some extraordinary and, I believe, unprecedented extensions of the Executive Jet holding. I must agree with their observation that the alleged involvement of Penrod’s vessel in the accident “is not alone sufficient to afford maritime jurisdiction over the alleged tort.” Majority Opinion at 11-12. Compare Foremost Insurance Co. v. Richardson, 102 S.Ct. at 2657-59. But the majority continue: “At the time of the accident, Penrod’s role and function involved neither the vessel’s navigation or maritime commerce.” Observing that “Molett and Landry’s fall from the scaffold could have as easily occurred while in the Vicksburg shipyard,” they find it “of no overriding importance that the plaintiffs have alleged as the cause of the accident the negligence of the vessel owner.” (emphasis added) The majority characterize Foremost as adding to Executive Jet’s analysis of maritime flavor only the requirement that federal courts fashion uniform navigational rales for operators of vessels. If, as the majority say, the “very heart of maritime jurisdiction” is “the protection of maritime commerce,” should not admiralty be concerned with standards of care owed by a commercial, navigable, floating vessel to those who come aboard? Surely the protection of maritime commerce requires that commercial vessel owners be subject to a uniform, predictable body of law as their craft move from state to state. Uncertainty not only spawns litigation difficulties, like those retrospectively found in this case, but it also drives up insurance costs for vessel owners.
The majority’s error, I believe, lies in their interpretation of Foremost. That Supreme Court case held admiralty jurisdiction extant over a collision between two small pleasure craft on a minor Louisiana river. The Court found a sufficient “maritime nexus” under the Executive Jet test because the wrong involved negligent operation of a vessel upon navigable waters. 102 S.Ct. 2658. Foremost was a quintessential pragmatic decision, explicitly guided by two policies: that the federal interest in promoting maritime commerce can only be fully vindicated if all vessel operators on navigable waters are subject to uniform rules of conduct; and that inconsistency and uncertainty would flow from imposing different standards of liability on vessel owners from jurisdiction to jurisdiction. 102 S.Ct. 2658-59. Those twin policies dictate even more forcefully the need to apply admiralty jurisdiction and maritime tort principles to the standard of care owed by this commercial jack-up barge, which had already been towed from Vicksburg, Mississippi to Belle Chasse, Louisiana.5 Compare Executive Jet, 93 S.Ct. at 505 (“Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy ...”).
The only sensible basis for denying admiralty jurisdiction that I can see in light of Foremost is that this vessel was under construction and not yet in maritime commerce. Our precedents might be read to reject admiralty jurisdiction for injuries that arise on ships under construction. In Hollister v. Luke Construction Co., 517 F.2d 920 (5th Cir.1975), this court declined to apply maritime tort principles to an injury of a shipbuilder whose employer, a welding company, was allegedly negligent. The injury there occurred aboard a launched but incomplete vessel. Relying largely on Hollister, Lowe v. Ingalls Shipbuilding, a Division of Litton, 723 F.2d 1173 (5th Cir.1984) rejected an indemnity claim made by a shipyard owner against manufacturers of asbestos for injuries suffered by ship construction and repair employees. The court held that the underlying tort liability of the manufacturers for the employees’ asbestos exposure claims, which could not even be definitively shown to have a maritime situs, was not based on maritime law. Neither of *1231those cases asserted negligence directly against the vessel owner, however.6
Our § 905(b) cases, such as Richendollar v. Diamond M Drilling Co., 819 F.2d 124, 126 (5th Cir.) (en banc), cert. denied, — U.S. -, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987), and May v. Transworld Drilling Co., 786 F.2d 1261, 1263 (5th Cir.), cert. denied, 479 U.S. 854, 107 S.Ct. 190, 93 L.Ed.2d 123 (1986), hold only that such a claim must independently satisfy admiralty jurisdiction. None of those § 905(b) cases construed the maritime nexus prong of Executive Jet at issue here. See Engerrand, Admiralty Law Survey, 23 Tort & Ins. L.J. 251 (1988). Nor does any of those decisions contradict the principle I advocate: I see no necessary inconsistency between our previous cases rejecting admiralty jurisdiction on their particular facts, while holding it applicable to a case, like this one, in which a commercial vessel was navigational, although not yet completely built, and plaintiff has alleged vessel negligence.
The majority’s holding is unfortunately not so confined. Had Molett and Landry been carpetlayers, called aboard a commercial vessel moored between voyages, the majority’s decision would cast doubt on the propriety of admiralty jurisdiction. The majority’s broad language also suggests that admiralty jurisdiction might not be present if a crewmember’s personal friend, come aboard during a stop in port, slipped and fell on a ship’s staircase. The accident could have as easily occurred on land; there would be no connection between it and navigation or maritime commerce. This result, however, would squarely conflict with Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), the seminal Supreme Court decision on principles of vessel liability toward non-crewmembers.7
Limiting admiralty jurisdiction over a vessel’s negligence to injuries that involve navigation or maritime commerce seems to me an unnecessary invitation to a chaotic round of expository litigation. There is no doubt that Executive Jet has left us sailing uncharted seas of admiralty jurisdiction. I cannot, however, accept the majority’s suggestion that Executive Jet’s maritime nexus requirement potentially exposes commercial vessel owners to liability under state law for injuries that occur aboard their navigationally-capable, floating vessels. I respectfully dissent.
. Suffice it to say that if such jurisdiction existed, I would conclude that the claim between Gearench and Columbus-McKinnon was ancillary to the plaintiffs’ admiralty claim and thus within the court’s jurisdiction.
. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).
. Kelly v. Smith, 485 F.2d 520 (5th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).
. The plaintiffs’ original complaint alleges in part that Penrod fabricated the derrick in an unsafe manner; failed to design the derrick so that it could be safely assembled; furnished improper or defective equipment; and allowed *1230improper and negligent methods of derrick assembly.
. Indeed, no party at the original trial, on appeal, or on remand ever questioned the admiralty basis for jurisdiction over this claim.
. A claim was made by an employee against his employer, the builder of a launched vessel undergoing sea trials, in Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir. 1971). In that pre-Executive Jet case, Judge Brown held that maritime law governed as a matter of situs. 452 F.2d at 959.
. That Kermarec remains valid would seem un-contestable, because the Court cited it as the basis for redefining a vessel owner’s liability to workers covered by the LHWCA in Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).