(dissenting).
I agree with the majority that Jones has a right ex contractu against the Waterman company for wages, maintenance and cure. I dissent from the finding that the Waterman company in its turn can recoup such payments from the tort-feasor railroad.
Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, presented quite similar facts. There the Court in an exhaustive opinion determined that the employer had no claim against the third party tort-feasor. The principles of both indemnity and subrogation were held inapplicable because the tort-feasor was not benefited by the employer’s payments and because of the vast difference between the duties and liabilities of the employer and those of the tort-feasor. There is no more factual basis here for indemnification or subrogation than appeared in that matter.
The Pennsylvania cases cited in the majority opinion as holding “that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons” do not assume to govern an action founded on a contract status. Other Pennsylvania decisions may indicate a liberal trend in dealing with injuries to employees but afford very slim ground on which to predicate the Court’s opinion on the instant problem. The Pennsylvania workmen’s compensation law allows an employer’s sub-rogation action against a third party tort-feasor, 77 P.S. § 621. The statutory basis of such right thrusts a new and contrary rule into the common law (Williston on Contracts, Revised Edition, § 1028A) but that doctrine is confined to workmen’s compensation. I do not think that the common law rule of indemnification to an employer extends beyond payments by him to his servants and such class of persons or that the majority view to the contrary can *1002be fairly said to represent the present Pennsylvania law.
The majority further asserts that indemnity is indicated because of the maritime contract between Jones and the Waterman company with that relationship controlling between Waterman and the railroad. Under such pronouncement there is created generally a greater responsibility to a sailor than to a landsman which would exist in favor of a ship operator simply because of his special liability to his seamen. No valid reason is advanced for such radical extension of the underlying maritime theory. Lastly the Court opinion states that the logic of the law suggests the allowed indemnity. Even if this were to be assumed, arrival at such logical result necessitates holding the defendant under a liability which did not attach to it at the time of the occurrence. The logic involved might be for consideration of the Pennsylvania Legislature in establishing the same type of statutory indemnification against a third party tort-feasor as that body has already fixed in workmen’s compensation, but the question is not properly before us on this appeal.