(dissenting).
My brothers concede that the ultimate question in regard to plaintiff’s employment status is who could control his work activities — “who had the right to control, not who actually did.” Byrne, Adm’x v. Pennsylvania R. Co., 3 Cir., 262 F.2d 906, 913, certiorari denied Pennsylvania R. Co. v. Byrne, Adm’x, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766. On this issue — an oft-recurring one in Jones Act and FELA litigation — it is well settled that the jury’s power of decision is a broad one akin to its range of discretion to find negligence. Baker v. Texas & Pacific Ry. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756; Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed. 2d 737; Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed. 2d 404; cf. Magenau v. Aetna Freight Lines, 79 S.Ct. 1184; Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U. S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953. I cannot agree that a reasonable man could not have found that defendant Grace Line had the requisite right of control over the plaintiff. Plaintiff’s contract with The Interstate Co., Inc., provided that he would receive a nominal wage from Grace Line and would be subject to its rules, regulations, and discipline. Moreover, as contemplated by that contract, plaintiff signed the Grace Line’s ship’s articles as an ordinary member of the crew. This evidence is more than ample basis for submitting the issue of plaintiff’s employment status to the jury.
Moreover, the decision of the court below was erroneous in yet another respect. For if plaintiff is not an employee of Grace Line, his complaint states a perfectly valid claim for damages against that company under general maritime law. As plaintiff was lawfully aboard defendant’s vessel, he may recover for injuries caused by its negligence. Kermarec v. Compagnie Generale Transatlatique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550; The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192. And as he was there to perform services necessary to the functioning of the passenger liner he would seem entitled to protection against unseaworthiness as well. See Kermarec v. Compagnie Generale Trans-atlantique, supra, 358 U.S. 625, 629, 79 S.Ct. 406, 3 L.Ed.2d 550; Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Seas Shipping Co. v. Sie-racki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Plaintiff’s complaint adequately pleads a claim for relief under either theory.
I do not understand the process by which my brothers conclude that the correctness of the lower court’s direction of a verdict against the plaintiff on the issue of employment is the sole question presented on this appeal. The court did more than merely direct a verdict on a single issue; had it done only that, we would have no appellate jurisdiction to review its action at this time. Cf. Schwartz v. Eaton, 2 Cir., 264 F.2d 195. It dismissed plaintiff’s complaint on the merits, thus barring the plaintiff from recovering for his injuries under any theory of law — not merely under the Jones Act. Hence the question before us is the broad one of the correctness of this dismissal. It cannot be gainsaid that the court may take such action only where the facts pleaded fail to state a claim upon which relief can be granted under any theory of law, and our review of such action is not limited to the theories of law advanced by the parties. See Gins v. Mauser Plumbing Supply Co., 2 Cir., 148 F.2d 974, 976; Smith v. Bear, 2 Cir., 237 F.2d 79, 86, 60 A.L.R. 2d 1119; Bernstein v. United States, 10 Cir., 256 F.2d 697, 706, certiorari dismissed 358 U.S. 924, 79 S.Ct. 296, 3 L.Ed.2d 298.
It is of course to be noted that one defense raised by defendant was that of *600release, based upon a releasing clause of the original agreement of November 19, 1954, the disability sued upon occurring in February 1956. Concededly the Jones Act, if applicable, makes these provisions invalid. Since the plaintiff in any event was a seaman (see Kermarec v. Compagnie Generale Transatlantique, supra, 358 U.S. 625, 629, 79 S.Ct. 406, 3 L.Ed.2d 550; Pope & Talbot v. Hawn, supra, 346 U.S. 406, 412-413, 74 S.Ct. 202, 98 L.Ed. 143; Seas Shipping Co. v. Sieracki, supra, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099), it would seem that similar principles would apply. At the very least a heavy burden must rest upon defendant to sustain the general fairness of the release in futuro. Garrett v. Moore-McCormack Co., 317 U.S. 239, 246-248, 63 S.Ct. 246, 87 L.Ed. 239; Kelcey v. Tankers Co., 2 Cir., 217 F.2d 541; Gilmore & Black, The Law of Admiralty 378, n. 388 (1957). See also 46 U.S.C. § 183(c). But final adjudication of that issue can be properly postponed until it is directly in issue, and is carefully briefed and argued.
The judgment below should be reversed.