(dissenting).
I would affirm on the persuasive opinion of Judge Kennedy below, D.C.E.D.N.Y., 99 F.Supp. 506, which, in my view, correctly evaluates the precedents and the legislative policy. The decision here rejects traditional tests to rely upon something found in the nature of the employer’s job, a distinction so vagrant and fleeting that it apparently cannot be stated more precisely than something “distinctively a railroader’s job,” or a “specialized railroad employment,” requiring particular training and with particular risks. But how that can be given anything like finite application to distinguish between a “freight handler” manipulating freight, and a “railroader” manipulating brakes, on a car float, I am unable to perceive. Moreover, as is conceded, the very case of the freight handler was that of a “railroader” nonetheless granted compensation. Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754. Note, too, the opinion of Chief Justice Hughes, 281 U.S. at page 134, 50 S.Ct. at page 304: “A car float in navigable waters is subject to the maritime law like any other vessel. * * * No exception is made of the employees of a railroad company employed in maritime service on the navigable waters of the United States or with respect to the question whether such employment was in connection with an extension of railroad transportation.”
To me the Nogueira case seems wholly controlling in both its reasoning and its holding. And there is a very strong current of judicial opinion elsewhere to that effect. An exact precedent is found in Burén v. Southern Pac. Co., 9 Cir., 50 F.2d 407, where the Supreme Court denied certiorari, 284 U.S. 638, 52 S.Ct. 20, 76 L.Ed. 543. Other cases of “railroaders” — brakemen— on car floats include Richardson v. Central R. Co. of New Jersey, 233 App.Div. 603, 253 N.Y.S. 789; Gussie v. Pennsylvania R. Co., 1 N.J.Super. 293, 64 A.2d 244, certiorari denied 338 U.S. 869, 70 S.Ct. 145, 94 *616L.Ed. 533; and Job v. Erie R. Co., D.C.S.D. N.Y., 79 F.Supp. 698. And there are analogous cases such as Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, involving a janitor actually testing a motor boat in operation at' the time of injury; or Travelers Ins. Co. v. McManigal, 4 Cir., 139 F.2d 949, Travelers Ins. Co. v. Branham, 4 Cir., 136 F.2d 873, and Mamat v. United Fruit Co., D.C.S.D.N.Y., 39 F.Supp. 103, involving by employment purpose a carpenter, a concrete pourer, and a member of a shore gang respectively, but brought under the Compensation Act by their activities when injured. The only case distinctly to the contrary appears* to be Zientek v. Reading Co., D.C.E.D.Pa., 93 F.Supp. 875, which rests upon a reading of the 1939 amendment to the F. E. L. A. disavowed here.
Here the employer was engaged in a maritime activity in which it was the employee’s regular duty to assist. That the employee at other times performed shore railroad duties was of no moment. It was his “actual duties” at the time which controlled. Long Island R. Co. v. Lowe, 2 Cir., 145 F.2d 516, 518; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 260, 60 S.Ct. 544, 84 L.Ed. 732. As the Court said in Parker v. Motor Boat Sales, supra, 314 U.S. at pages 246, 247, 62 S.Ct. at page 223, with reference to the claim that,the Act did not apply because of the local character of the employment: “This proposition cannot be rested on the ground that Armistead, hired primarily as a janitor and porter, was predominantly a non-maritime employee. For habitual performance of other and different duties on land cannot alter the fact that at the time of the accident he was riding in a boat on a navigable river, and it is in connection with that clearly maritime activity that the award was here made.”
These cases seem to me to show as clear a line of demarcation as we can reasonably expect in the difficult realms of jurisdiction so important and apparently so necessary to our federated organization of government. But now we give these up for what seems to me a chartless morass.