(dissenting).
I go along with the majority through page five of the opinion. I part company with them thereafter, and the reason I do is because the opinion, in dealing with the binding force of the three year period of limitation fixed in and by the Jones Act as to actions brought un*81der it assumes that the right of action sued on in this suit is afforded by that act, when the exact contrary of this is thus carefully pointed out earlier in the opinion. Saying, “Thus, there is nothing in the Jones Act which grants to seamen a right to bring an action against anyone except his employer and as the Act does not in terms provide for survival of actions against the estate of the deceased tort-feasor”, the majority then goes on to say, “we are unwilling as in Nordquist v. United States Trust Co. of New York, 2 Cir., 188 F.2d 776, to supply what the Congress omitted by reading a survival proviso into the statute where no legislative intent therefor is discoverable. If the law is to be changed it ought to be by an Act of Congress.”
Notwithstanding this express and vigorous holding that the Jones Act does not grant to the seaman in this case a right to bring the action brought here, and that the action is afforded by the Statutes of Florida, the opinion goes on to say: “This brings us to the question whether this suit brought on the common law side of the District Court to enforce a right of action granted by the Jones Act (emphasis supplied by me) may be commenced within three years after the cause of action accrues, or whether the Florida statute of nonclaim * * * will apply.”
With deference, this assumption that the suit is brought to enforce a right of action granted by the Jones Act is contrary to the fact and law of the case, and throws the whole case out of focus by presenting as the question for decision a question that is not here for decision. What is for decision here is this: May the representative of a seaman, who has elected to sue at law upon a cause of action, the creature of a state statute, take so much of the state law as he likes and reject so much of it as he does not like, or must he take the statutory cause of action cum onere, the bitter with the sweet.
I think it has been precisely and many times decided that he must so take it. This was decided in The Harrisburg case, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358, and in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L. Ed. 210, and that case has been uniformly followed and never departed from. As late as in Levinson v. Deu-pree, 345 U.S. 648, 651, 73 S.Ct. 914, 97 L.Ed. 1319 the Supreme Court reaffirmed the principle, while in Continental Cas. Co. v. Benny Skou, 4 Cir., 200 F.2d 246, 250, there is an excellent discussion of it, Cf. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 70 L.Ed. 813, and Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686, are correctly cited by the majority as holding that the Jones Act covers the entire field of liability for injuries to seamen as congress has there laid it down. Indeed Lindgren applied the rule so rigidly that it rejected the application of the Virginia death statute on the ground that the Jones Act was complete and comprehensive, and since, under the circumstances of that case, it did not afford a right of action, state law could not be looked to to supplement its coverage.
In Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903, the Supreme Court of the United States rejected the view of the majority of this court, 113 F.2d 106, that since the action there sought to be maintained was not afforded by the Jones Act, resort could not be had to the action afforded by the Florida State Statutes in favor of the view of the minority, 113 F.2d at page 110, that it could be, and there laid down the rule applicable and controlling here. This is that, though no right of action was afforded under federal law, the seaman was permitted to sue under the State Act, and the suit was not in breach of the uniformity required in admiralty. Thus reaffirming the rule that, though no action was afforded in admiralty, the State Court action for death could be resorted to by a seaman’s representative.
The majority has correctly, I think, held that the Jones Act does not afford the right of action asserted, the State *82Statutes do.- If "the action sued on is that afforded by the State, then it must be taken cum onere, and it may not, I think, be held, as the majority opinion does, that though the Jones Act does not afford the action and the State Statute does, the representative of a seaman suing under the State Action is in a different situation from an ordinary litigant in Florida, in this, that whereas the statute invoked in this case would certainly be valid as to, and a bar against, such a litigant, it would not be as to the plaintiff because his action was brought for the benefit of a seaman. To my mind, reason and authority join in rejecting this view. I respectfully dissent.
Rehearing denied; HUTCHESON, Chief Judge, dissenting.