dissenting:
To the dual holding1 that the helicopter was not a “vessel” and Barger, its pilot, was not a “seaman”, I must respectfully dissent.
To narrow the point of difference, I wish to make clear the extensive areas in which I am in full agreement with Judge Rubin’s scholarly analysis. Without a doubt, 43 U.S.C. § 1333(b) of the Outer Continental Shelf Lands Act (OCSLA) brings into play § 933(i) of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA) which prescribes the exclusive remedy for injury and death cases by the Act. I quite agree that Barger’s death was the “result of operations conducted on the Outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting ... the natural resources ... of the Outer Continental Shelf ...”, 43 U.S.C. § 1333(b), and that his employer, Petroleum Helicopters, Inc., was engaged in such operations in performing the essential service of transporting men and equipment from the mainland to the offshore rigs.
At the same time, I agree the case is not controlled by the local law of the adjacent state (Louisiana) as “surrogate” federal law under the OCSLA, 43 U.S.C. § 1333(a)(2)(A). See text accompanying n. 25, 684 F.2d at 1109. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).2 I also agree that the Kolb claim against the third party in Smith for the death of a helicopter pilot in waters off the Outer Continental Shelf was a maritime claim within the jurisdiction of the admiralty. 684 F.2d 1111-12.
And I embrace wholeheartedly the Court’s conclusion that the suit by the helicopter owner in the Kolb claim of Smith for loss of a helicopter was within the admiralty jurisdiction. Id. at 1112. All of this means that for the death of Barger the Longshoremen’s Act is the exclusive remedy against the employer, Petroleum Helicopters, Inc., unless he was “. .. a master or member of the crew of [a] vessel .... ” 43 U.S.C. § 1333(b)(1).
This dramatizes the narrow, but significant, difference in our views. The Court having held (i) in the Kolb third party death action that the claim under DOHSA was within the admiralty and it was so maritime *342as to be beyond the reach of adjacent surrogate law, 43 U.S.C. § 1333(a)(2)(A); and having held (ii) in the claim for the owner’s loss of the helicopter that the helicopter was engaged “in a maritime-type function, transporting persons over the sea”, 684 F.2d at 1111, because the aircraft was “being used in place of a vessel to ferry personnel and supplies to and from offshore drilling structures, ...” and this bore “.. . the type of significant relationship to traditional maritime activity .. . necessary to invoke admiralty jurisdiction ... ”, Id. at 1112, the case suddenly loses its admiralty character by the interposition of the Longshoremen’s Act.
It is no answer that this is what Congress has prescribed since the LHWCA provides itself that seamen are excluded. The helicopter is doing what a vessel would ordinarily do — transport persons and property to and from the mainland and the offshore structure. The pilot is doing what the master and crew of a vessel would do, namely, operate the craft. Each activity is maritime and maritime related. Each meets 'the exclusions and principles set forth in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Injury or loss to each in the OCSLA waters is within the admiralty. The factor which makes each within the admiralty is the function and purpose of the use of the craft. All that is lacking is a “vessel” in the usual traditional sense of a thing which can float on or in water to carry persons or things from one place to another.
But the normal physical characteristics to constitute an object a “vessel” have never deterred the Supreme Court or this Court from finding unusual, nontraditional, odd, nonmaritime structures to be “vessels”, and the person serving to fulfill the mission of such structures to be seamen under the Jones Act.
The classic case is Judge Wisdom’s celebrated decision in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959). There, following significant Supreme Court decisions, we held an oil field “roustabout” who did not know how to, or what was meant by, the ability to “hand, reef and steer,” to be a Jones Act seaman for injuries received while a floating submersible rig was made fast to the bottom of the bay by jack-up legs raising the deck of the drilling barge way above the level of the water. At the time of the injury the drilling platform was not afloat. It was hard aground. The drilling barge could not move. The only relation it had to the sea was its past— when it was towed to a new location — or, its future — when it would again be towed to another location.
Equally spectacular was the decision in Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955). Gianfala and his crew members slept ashore in an oilfield camp and worked aboard a drilling barge which was resting on the bottom of the bay at the time of the injury. The.Court held Gianfala to be a seaman within the scope of the Jones Act. Even more spectacular was Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958) in which the contractor was building a “Texas tower” radar station for location in the North Atlantic to be permanently affixed to the floor of the ocean. After the tower was towed to its offshore site, Grimes did only piledriving work. He drowned when he fell out of a life ring used to carry him from a tug to the tower. The Supreme Court reversed the First Circuit and held that the “petitioner’s evidence presented an evidentiary basis for a jury’s finding whether or not the petitioner was a member of the crew of any vessel” to thus circumvent the equivalent of LHWCA coverage under the Defense Bases Act. Id. at 253, 78 S.Ct. at 688.
Courts of Appeals and District Courts have extended Robison to strange sorts of things to find them to be a “vessel” and the injured person a seaman,3 and the so called floating submersible drilling barges are invariably hard aground, incapable of any *343movement — maritime or otherwise.4 As a matter of physical, operative fact they are just as land-bound, nonmaritime as the fixed raised drilling platform over which it is uncontradicted that none is a vessel.
The upshot of these decisions for our case is that because the helicopter was regularly operated in the transportation of persons and property to and from the mainland and the offshore structures, it was engaged in maritime activities so that the loss of the helicopter and the death of the pilot were a maritime tort within the jurisdiction of the admiralty. It is maritime because of the nature of the work it regularly performed — the transportation of persons and property. This is made positive by the Court’s treatment of the pilot’s (Kolb’s) claim. The Court emphasized that “his duties constantly carried him back and forth above the high seas over the outer Continental Shelf.” 684 F.2d at 1111. Disregarding the relationship of the death claim to the OCSLA and the acknowledged separate jurisdiction under DOHSA, the Court went on:
Even apart from this ‘special treatment’ accorded airplane crash victims, there would still be admiralty jurisdiction over Kolb’s accident, as we show below in regard to Petroleum Helicopters’ property claim arising from the same accident. See Part IIC infra.
Id. And after stating in Part IIC that the “logic of Executive Jet appears to require extension of admiralty jurisdiction to non-death claims arising on the high seas if the aircraft flight has the essential maritime nexus,” Id. at 1112, the Court eliminating the “if”, concluded:
Therefore, both the locality and maritime nexus requirements being met, we hold that the Petroleum Helicopters claim, like the Kolb death claim, may be brought in admiralty. Id.
To the Court’s quaere, Id. at 1113, n. 41, the record in this case and the trial court’s factual findings clearly reflect that the amphibious helicopter here come within the broad, virtually indefinable Robison definition of a special purpose craft.5 The judge found that this amphibious helicopter was specially designed and built not only to take off and land on water but also to taxi on the water. It could move under its self-propulsion on the water to position itself for the loading or unloading of cargo or passengers. He characterized the craft as one designed to function as a crew boat without which the gigantic offshore oil industry’s maritime operations, see Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir., 1982) (en banc), could not function. Indeed this seems to have been the sole function of this helicopter.6
More than that the helicopter literally met the Congressional definition that “any artificial contrivance . . . capable of being used, as a means of transportation on water” constitutes a vessel.7 684 F.2d at 1118, n. 40.
*344Whatever the meaning of the full text of 49 U.S.C. § 1509(a) rather than the Court’s paraphrase of it, 684 F.2d at 1113, the fact is that in very recent actions Congress has definitely included seaplanes (including helicopters) within the meaning of the term “vessel”. In the major overhaul of the International Regulations for Preventing Collisions at Sea, 33 U.S.C. § 1601 et seq. (1977), the Congress in 1977 did several significant things. It repealed the long standing “Rules of the Road.” It provided for a proclamation by the President and the promulgation of the International Regulations for Preventing Collisions at Sea (International Rules).8
33 U.S.C. § 1601(1) leaves no doubt that all kinds of seagoing aircraft are included within the term “vessel”. It states:
‘vessel’ means every description of watercraft, including nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water....
A helicopter comes within the statutory definition of a “nondisplacement craft” and certainly fits the qualification of a craft “used or capable of being used as a means of transportation on water.” Id. As a statutorily defined “vessel”, a helicopter is also subject to the elaborate system set up in 33 U.S.C. § 1608 for civil penalties. There, investigative, enforcement and comprehensive measures are provided, including liability of an operator of a vessel and an in rem remedy against the craft.
Whatever Congress had or could have had in mind regarding the term “vessel” in 1920 when it first enacted the Jones Act, it is now clear in 1982 and has been ever since 1977 that Congress has no doubts. Congress means to include any and all kinds of seagoing aircraft within the term “vessel”, with the sole qualification that the craft be used or capable of being used for transportation on or over international waters, which these clearly were, or other waters over which the United States has jurisdiction.
One final note on the term “vessel”. The Court stresses that in Robison we were concerned with “special purpose structures” which are designed to float and be towed “across water to the drilling site despite their incapacity for self-propulsion.” 684 F.2d at 1113. Wave barriers permanently affixed to the sea floor, Nelson, 639 F.2d 469, the elevated boom of a dragline, Guidry, 614 F.2d 447, and a submersible oil storage facility, Hicks, 512 F.2d 817, and the “Texas Tower” for radar defense of the nation, Grimes, 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737, hardly fit that category.
Nor does fidelity to the principles of Robison require that the flexible maritime law’s concern for those who go down to sea, see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) (following Moragne) — whether in ships or today’s version of the ship’s equivalent— should be denied effectuation of the admiralty remedy which Kolb and all other helicopter pilots, including Barger, have, because the thing — the helicopter — whose use for substantial maritime purposes gives the *345controversy the prized characterization of a maritime claim, is not a vessel.9
. The dual determination was based, in effect, on the almost contemporaneous holding of the Court as to the Smith claim in Smith v. Pan Air Corporation, 684 F.2d 1102, 1112, n. 39 (5th Cir.1982). Of necessity, this dissent attacks that determination. Instead of concurring specially because of a decision binding on me until altered by the Court en banc, I am dissenting, since with the filing of this dissent I will seek formally rehearing en banc, F.R.A.P. Rule 35, of the instant case which will inevitably bring into question the correctness of the Smith decision.
. The Court states:
Unlike both Monk and the workers considered in Rodrigue, the helicopter pilot was engaged in a maritime-type function, transporting persons over the seas.
We hold, therefore, that admiralty jurisdiction over Kolb’s claim against nonemployer third parties is not ousted by section 1333(a) of the OCSLA.
684 F.2d at 1111-12 (note omitted).
. Nelson v. United States, 639 F.2d 469 (9th Cir. 1980) (a wave suppressor, an aquatic barrier erected in the water to protect boats at the Coast Guard station from heavy waves which is permanently affixed to the sea floor held to be a vessel and the decedent, a piledriver, was a seaman within the Jones Act); Guidry v. South Louisiana Contractors, 614 F.2d 447 (5th Cir. 1980) (elevated boom of a large dragline was a vessel; case remanded for jury determination whether injured party was Jones Act seaman); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir.1975) (submersible oil storage facility resting on the bottom of the Gulf held to be a vessel and plaintiff a seaman); Brinegar v. San Ore Construction Co., Inc., 302 F.Supp. 630 (E.D.Ark. 1969) (fuel tank pontoon vessel capsized at time of accident held to be a vessel and plaintiff a Jones Act seaman).
. Submersible drilling barge cases are legion and invariably involve injuries occurring while the drilling barge is fixed on the ocean floor and not floating or in movement. See Daughdrill v. Diamond M. Drilling Co., 447 F.2d 781 (5th Cir. 1971); Neill v. Diamond M. Drilling Co., 426 F.2d 487 (5th Cir. 1970); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966) ; Harney v. William M. Moore Building Corp., 359 F.2d 649 (2d Cir. 1966); Clary v. Ocean Drilling and Exploration Co., 429 F.Supp. 905 (W.D.La.1977); McNeese v. An Son Corp., 334 F.Supp. 290 (S.D.Miss.1971); McCarty v. Services Contracting Inc., 317 F.Supp. 629 (E.D.La.); Robichaux v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587 (W.D.La.1970); Rogers v. Gracey-Hellums Corp., 331 F.Supp. 1287 (E.D.La. 1970); Hebert v. California Oil Co., 280 F.Supp. 754 (W.D.La. 1967) ; Ledet v. U.S. Oil of Louisiana, Inc., 237 F.Supp. 183 (E.D.La.1964); Oliver v. Ocean Drilling & Exploration Co., 222 F.Supp. 843 (W.D.La. 1963); Guilbeau v. Falcon Seaboard Co., 215 F.Supp. 909 (E.D.La. 1963).
. It must be emphasized that a Robison vessel determination does not necessarily or automatically mean Jones Act status, so the question is broader than: “Is the injured worker a Jones Act seaman?” See Dugas v. Pelican Construction, Co., 481 F.2d 773 (5th Cir. 1973) (not a Jones Act seaman but entitled to seaman’s warranty of seaworthiness).
. The Supreme Court in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 619, n. 2, 98 S.Ct. 2010, 2011, n. 2, 56 L.Ed.2d 581, 583, n. 2, said “[t]he District Court bottomed admiralty jurisdiction on a finding that the helicopter was the functional equivalent of a crewboat. The ruling has not been challenged in this Court.” (citation omitted).
. Since we are dealing directly with the usage of not only the LHWCA but also more recently the 1953 OCSLA, 43 U.S.C. § 1333(c)(1) as amended September 18, 1978, 43 U.S.C. § 1333(b)(1), the Court’s explanation, 684 F.2d at 1113, n. 40, not only ignores these historical *344facts (plus the substantial 1972 amendments to the LHWCA) but also this Court’s express conclusion that we must determine what Congress meant about a matter on which it could not have thought because of technological non-existence. For example, discussing the technological advances made since Congress enacted COGSA, this Court has stated:
Our principal task in this case is to determine what Congress would have thought about a subject about which it never thought or could have thought and one about which we have never thought nor any other Court has thought. Technology has created a maritime transportation system unlike any which was in existence in 1936 when Congress enacted COGSA. (note omitted).
Wirth Ltd. v. S/S ACADIA FOREST and LASH Barge, 537 F.2d 1272, 1276 (5th Cir.1976).
The question remains then, what did Congress mean in 1953 when it enacted § 4(b)(1) of the OCSLA, the statute which cuts off the maritime claim for the death of the pilot. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
. The International Rules, see 33 U.S.C. § 1602 number 1 through 38.
Rule 3(a) states that:
(a) The word ‘vessel’ includes every description of water craft, including nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water.
Rule 3(e) states that:
(e) The word ‘seaplane’ includes any aircraft designed to manoeuvre on the water.
Rule 31 reflects peculiar concern with seagoing aircraft:
Where it is impracticable for a seaplane to exhibit lights and shapes of the characteristics or in the positions prescribed in the Rules of this Part she shall exhibit lights and shapes as closely similar in characteristics and position as is possible, (emphasis supplied).
. That ascribing vessel status to a helicopter leaves some legal problems unanswered, see 684 F.2d at 1114 (limitation of liability, etc.), is no deterrence to the admiralty’s adaptability. Recall, for example, that in the boundless Sieracki claims, founded on traditional seamen’s work, longshoremen never received maintenance and cure. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).