(dissenting)
I respectfully dissent.
The question here is whether the district court had jurisdiction of the plaintiff’s claim for personal injuries filed under the Jones Act, 46 U.S.C. § 688, and for maintenance and cure under general admiralty law. No claim was made in the complaint that the vessel or her appliances were not seaworthy.
The district court found the plaintiff was not a seaman, concluded that it had no jurisdiction, and dismissed the complaint. I am of opinion that whether or not the plaintiff was a seaman, or a member of a crew, is a matter of fact which should not have been conclusively decided adversely to the plaintiff solely on the basis of his pretrial deposition, and would remand for further consideration.
I emphasize now, as will later become apparent, that the plaintiff’s claims for personal injuries are asserted as negligence under the Jones Act as well as under the historic claim for maintenance and cure, a general claim in admiralty. Nowhere in the case prior to appeal did the plaintiff assert that the vessel involved, or any of her appliances, was unseaworthy. While I realize that pleading under the Federal Rules of Civil Procedure is quite liberal, because of the decision of the district judge that he had no jurisdiction and the different antecedents of the three sources of recovery for an injured seaman, the omission of the claim for unseaworthiness should be noted.1
Historically, of course, as traced by court decisions, a seaman had a right of indemnity on account of personal injuries occasioned by the unseaworthiness of the vessel and its appliances, the measure of damages in which was largely coextensive with damages for injuries to the person in an ordinary tort claim. Absent unseaworthiness, he had no cause of action on account of negligence of the owner. In addition to the damages for breach of warranty of seaworthiness, the seaman had the right .to claim maintenance and cure, generally consisting of lost wages and medical care and attention brought about by injury or sickness. He had this latter right if he were in the service of the ship at the time the injury occurred, and maintenance and cure depended neither on a breach of warranty of seaworthiness nor on the negligence of the owner, but accrued to a seaman who became sick or injured in the service of the ship. The Jones Act then added to the remedies of a seaman, allowing him to recover on account of negligence of the owner. This was an additional remedy. So it is possible for a seaman to have three causes of action arising from the same injury. H. Baer, Admiralty Law of the Supreme Court, Ch. I (2d ed. 1969).
*438The plaintiff here was a laborer employed by the defendant, Sewer Construction Company, Inc., in the demolition of a bridge crossing the Elk River at Charleston, West Virginia. Not before us is any question whether or not the Elk River is navigable water or whether or not the barge involved was a vessel in navigation. Barge ABL 358 was in the possession and under the control of the defendant and was moored alongside one of the piers of the bridge, in the river, with about twenty feet of water between the barge and the bank. The wood decking and steel from the bridge as it was being dismantled were being loaded into the barge which was to be hauled away upon completion of the job.
The plaintiff apparently had worked on the bridge structure until the day before his injury, a period of about three weeks. The day before the injury, he had worked on the barge. The men on the bridge would lower the dismantled wood and steel down to the barge with a winch, and the plaintiff and another man would unhook it from the winch and load the material into the barge. There is no suggestion the barge had any cargo other than the wood and steel from the dismantled bridge. In order to get onto the barge, the men working on it in loading its cargo would be lowered by the winch by means of what the plaintiff calls a choker. The choker consisted of a piece of wire rope about five feet long with an eye in either end. One eye of the choker was placed in a hook on the end of the winch line. The plaintiff would place one foot in the eye of the choker and hold on above the hook to the winch line, in which position he would then be lowered to the barge. On the second day the plaintiff was to work on the barge, while being lowered, the hook on the winch line caught on a flange of the bridge, rubbed the eye of the choker off the hook, and the plaintiff fell more than thirty feet into the barge, suffering serious personal injuries. Plaintiffs complaint under the Jones Act alleges negligence on the part of the defendant generally and in seven different aspects in particular’ for which he claims damages for total and permanent disability, in addition to which, in a separate’ count, plaintiff claims $10,000 for maintenance and cure.
Since the plaintiff asserted no claim prior to appeal as to the unseaworthiness of the vessel or its appliances, we should have no occasion to consider whether or not admiralty jurisdiction might be defeated as to that claim, assuming the sole unseaworthy appliance to have been the shorebased winch and its attendant choker. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970); Cf. Garrett v. Gutzeit O/Y, 491 F.2d 228, 236 (4th Cir. 1974); Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971).
The question before us is whether the plaintiff, Whittington, was necessarily precluded from being found a seaman which he must be to entitle him to assert his claims under the Jones Act and for maintenance and cure. The evidence is uncontroverted that the day before the injury Whittington had worked on the barge loading its cargo of steel and wood which was lowered into the barge by means of the winch. As was noted by the Supreme Court in Seas Shipping Company v. Sieracki, 328 U.S. 85, 96, 66 S.Ct. 872, 878, 90 L.Ed. 1099 (1946) (a longshoreman’s case unlike the case here):
“Historically the work of loading is the work of the ship’s service, performed until recent times by members of the crew . [t]hat the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker’s hazard and should not nullify his protection.”
The plaintiff here has alleged that he “was employed on said barge by the defendant, performing the work of a deckhand and a seaman,” that he “was a member of the crew of said barge, working on the Elk River,” and was “an ablebodied seaman in connection with his assigned duties and tasks.” While it may be true that all of plaintiff’s duties during the entire period of his employment, as revealed by his discovery deposition, may not have been, strictly speaking, the duties of a seaman, for during the first part of his employment he had worked on the bridge structure rath*439er than on the barge, the day before the injury he had worked storing the cargo on the barge, a seaman’s duty, and he was being lowered to the barge to perform this duty at the time he was injured. Nothing in the record before us indicates that the plaintiff’s service on board ABL 358 was of any duration other than indefinite.
In Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946), the Supreme Court held that the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq., confine the benefits of the Jones Act to the members of a crew of a vessel plying in navigable waters and that “it leaves unaffected the rights of the members of a crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board ... or on shore.” Id. at 7-8, 66 S.Ct. at 872.2 Thus, whether the injury to the plaintiff here may be said to have occurred when he landed in the barge or at the time his injury became inevitable (where the eye of the choker came off the hook) is of no moment. If the plaintiff were a seaman in the service of the vessel, he is entitled to assert a claim under the Jones Act. Likewise, the claim for maintenance and cure does not depend in this case on whether or not the plaintiff was on board or on shore. If he was a seaman in the service of the vessel at the time, he is entitled to assert the claim. 328 U.S. at 4, 66 S.Ct. 869. This is made clear by Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943), in which the court held that two seamen, proceeding from the ship going on shore leave, were entitled to maintenance and cure when injuries occurred when one fell into an open ditch on the pier and the other was injured by a motor vehicle on the roadway he had to traverse in order to return to the ship. In Aguilar, the court confined its ruling to instances where the seaman was either going from or returning to the ship. Whittington, of course, was being lowered to his place of work on the barge when the injuries occurred which are complained of here.
In Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), reversing 7 Ill.App.2d 307, 129 N.E.2d 454 (1955), the plaintiff was employed by the dredging company to assist with dredging operations in a slough being dug to bypass a rocky section of the Mississippi River. His work was that of a handyman; it included carrying and storing supplies and general maintenance of a dredge. He was injured by the explosion of a coal stove while placing signal lanterns from the dredge in a shed on the neighboring bank. He sued under the Jones Act, and the court recited that in order to recover he “had to be a member of a crew.” The court there followed South Chicago Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940), and held that whether or not the plaintiff, in his suit under the Longshoremen’s Act, was a member of a crew turns on questions of fact, and held that admiralty jurisdiction and the coverage of the Jones Act depends “only on a finding that the injured was ‘an employee of the vessel engaged in the course of his employment’ at the time of the injury.” 352 U.S. at 373, 77 S.Ct. at 417. The court stated that whether or not the plaintiff was a member of the crew “is to be left to the finder of fact,” id. at 374, 77 S.Ct. at 417, and that a jury would have the same discretion in determining this matter as any other fact.
This position was reaffirmed by the Supreme Court in its decision in Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958). In that case, the appellant, Grimes, was employed by the defendant to assist in erecting a Texas Tower — a triangular metal platform constructed some 60 feet above the surface of the sea on supports permanently affixed to the floor of the ocean, and utilized to operate a radar warning station. The ap*440pellant was a member of the Pile Drivers Union and was hired solely as a pile driver. When the tower was towed to sea, Grimes, along with 25 other workmen, lived on the tower and performed certain functions to aid in its erection.
Six days after the tower had been permanently anchored, the appellant and several other workmen were assigned to work on a nearby barge. Their only function was to prepare the materials on board the barge for transfer to the tower — a task that took approximately six hours. Following completion of the work aboard the barge, the appellant was transferred back to the tower by means of a life ring from a tug. It was during his transfer to the tower that Grimes was injured.
The First Circuit affirmed a directed verdict entered by the district court in favor of the defendant on the grounds that Grimes was clearly not a “member of a crew of any vessel.” That court went on to state:
“[I]t could not possibly be said that he [Grimes] was injured in the course of his employment as [a] crew member, for his work on the barge was all through, and he was injured while being transferred from the tug back to the Texas Tower. Furthermore, appellant’s presence on the barge was only sporadic or temporary, not measuring up to the requirements of ‘a more or less permanent connection between the ship and the worker’. .
245 F.2d 437, at 440. The Supreme Court reversed the Court of Appeals, however, and held that, on these facts, there was an evidentiary basis upon which the jury could decide whether or not the appellant was a member of a crew of any vessel. In so doing, the court cited with approval its earlier decisions in Senko and South Chicago.
Thus, given the Supreme Court’s decisions in Senko and Grimes, it seems that a showing that a man employed in working on a barge, admittedly for our purposes in navigation or in navigable waters, is at least sufficient to invoke the admiralty jurisdiction of the court, and warrant further factual inquiry.
In passing, it should be noted that maintenance and cure is an incident to employment. Whether a claimant is entitled to it depends at least in part upon his status. O’Donnell v. Great Lakes Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943). Whether the seaman must be such in the primitive sense of the word, Bellomy v. Union Concrete Pipe Co., 297 F.Supp. 261, 265 (S.D.W. Va.1969), aff’d 420 F.2d 1382 (4th Cir. 1970), or whether his status as a Jones Act seaman may be considered interchangeably in claims for maintenance and cure, Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 169 (2d Cir. 1973), is, I think, a question not necessary or appropriate to decide now on the quite meager record before us.
While the facts in this case are not fully developed, and I intimate no opinion as to whether or not the plaintiff should ultimately be held to be a member of the crew of the barge in question or a seaman, I submit it is uncontradicted that the sole deposition in evidence, which contains the only facts before us, does show that the last work the plaintiff performed for his employer was on the barge and was that of loading cargo, and that he was in the process of being lowered into the vessel to continue this work aboard ABL 358 at the time of his injury. Since the loading of cargo is traditional seaman’s work, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 96, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), since Whittington was employed on board the barge, and since whether or not Whittington was a seaman, a member of the crew of a vessel, is a matter of fact, South Chicago, 309 U.S. at 374, 60 S.Ct. 544, I am of opinion that the dismissal of the complaint for want of jurisdiction, both as to the Jones Act claim and as to the claim for maintenance and cure, was erroneous. The facts of this case as they appear in their limited way before us now would seem to make as strong a case for jurisdiction as that of the plaintiff in Grimes, above referred to, as well as in Butler v. Bridgeman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958), a Jones Act case in which the plaintiff was employed around *441a wharf, and on the morning in question had been engaged in cleaning the boiler of a tug which had been out of service and without crew for months prior to the accident.
In the case here, I think the pleadings and discovery deposition show enough to prevent the dismissal of the case for want of admiralty jurisdiction. This case is similar enough to that class of federal question cases in which the jurisdictional facts and the facts upon which recovery must depend are to some extent the same and comingled, to warrant a rule that courts should be slow in dismissing for want of jurisdiction, for so to do may very well deprive a party of his day in court. See, Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 818, 6 L.Ed. 905 et seq. (1824). Because “admiralty jurisdiction over the suit” as to the Jones Act claim “as in the case for maintenance and cure” does not depend on the place where the injury was inflicted “but on the nature of the service and its relationship to the operation of the vessel,” O’Donnell v. Great Lakes Co., 318 U.S. 36, 42-43, 63 S.Ct. 488, 492, 87 L.Ed. 596 (1943), I submit the judgment of the court dismissing the case for lack of jurisdiction should be vacated and the case remanded for further proceedings.
Whether Whittington was a seaman is a matter of fact which I suggest should not have been adversely and conclusively decided against him on the basis of a mere pre-trial deposition. It is well established that in ruling “[o]n summary judgment the inferences to be drawn from the underlying facts contained in such materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Whittington, then, is entitled to all favorable factual inferences which I do not think he has been accorded. Moreover, his status as a seaman is a common -fact going to both the merits of the ease as well as to the jurisdiction of the court. Under Bell v. Hood and Osborne v. Bank of the United States, it is my opinion that the court should have proceeded to the merits, and, if the case were later dismissed, it should have been on the merits, not for want of jurisdiction. This, it appears to me, is consistent with the procedure outlined by the Supreme Court in Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1956). There the court reversed a district court determination that a corporate defendant in a stockholders derivative suit should be realigned as a party plaintiff since the corporation was antagonistic to the defendant stockholder’s position. After taking evidence, the district court ruled on the fact of antagonism which destroyed the diversity jurisdiction of the court and resulted in a dismissal of the complaint. The Supreme Court found that the gist of the district court’s findings went as well as to the merits of the underlying dispute as to the question of jurisdiction. As was there pointed out, the proper course of conduct would have been to try the case on the merits rather than denying the parties their day in court by delving into the merits of the underlying dispute in an attempt to resolve a preliminary jurisdictional matter.
I am thus of opinion that the question of Whittington’s status as a seaman, being one which goes not only to the merits of the controversy but also to the jurisdiction of the court, should not be decided upon the preliminary motion for summary judgment, since, if all factual inferences were taken favorably to the plaintiff, the jurisdiction of the court would have been established to the extent necessary to warrant further factual inquiry.
. In Usner v. Luckenback Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971), the court stated that it had “repeatedly taken pains to point out that liability based on unseaworthiness is wholly distinct from liability based on negligence.” 400 U.S. at 498, 91 S.Ct. at 517.
. We do not have before us any question as to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq., the effect of its amendments, or any question concerning state workmen’s compensation. The sole question here is the very narrow one of the admiralty jurisdiction of the district court.