(concurring in the result).
I concur in the decision and in the opinion so far as it is rested on the merits. The authorities appear to show clearly that the injury here was not occasioned by a maritime tort; in addition to those cited in the opinion I refer also to McKnight v. N. M. Paterson & Sons, Limited, 6 Cir., 286 F.2d 250, cert. denied 368 U.S. 913, 82 S.Ct. 189, 7 L.Ed.2d 130, affirming D.C.N.D.Ohio, 181 F.Supp. 434.
But I cannot assent to the harsh procedural rulings assigned as an alternative ground for decision. Here was no misleading as to the facts, which were quite clear as concerned this issue; there was only a question of applying the correct legal theory to these facts. As we have said over and over, particular legal theories of counsel must yield to the overall duty of the court to afford relief to which the facts entitle a plaintiff; see, e. g., Gins v. Mauser Plumbing Supply Co., 2 Cir., 148 F.2d 974, 976; Siegelman v. Cunard White Star Limited, 2 Cir., 221 F.2d 189, 196 (per Harlan, J.), and cf. F.R. 15(b) and 54(c). Had the facts actually pointed to a maritime tort, I believe we should have been compelled to reverse for an inadequate charge.