(dissenting).
I believe my learned brothers have erred in holding, as a matter of law, that the deceased Daffin was a member of the yacht crew at the time he received his fatal injury. Their view is predicated upon the assumption that the facts as to the services performed by Daffin for his employer are without dispute. Although the actual duties which Daffin was performing in servicing the yacht at the time of his injury were clearly shown, it nevertheless becomes patent that the ultimate and disputed question of fact involved was whether those duties were merely incidental to the general character of his employment as porter and “handy-man” for Pape, or whether they were discharged pursuant to his alleged status as a crew member of the yacht, Vigilant. South Chicago Coal & Dock Co. et al. v. Bassett, 309 U.S. 251, 260, 60 S.Ct. 544, 84 L.Ed. 732; Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931; Henderson v. Jones et al., 5 Cir., 110 F.2d 952, 953, 954; Puget Sound Freight Lines v. Marshall, 9 Cir., 125 F.2d 876, 878.
At the hearing before the Deputy Commissioner, it was shown that Daffin, with the exception of about a year spent in the service during the war, had worked for W. O. Pape since the year 1935; that he was originally employed as a porter or handyman at his employer’s radio broadcasting station WALA in Mobile, approximately three years before Pape ever owned a yacht and before Daffin was ever required to perform any yacht maintenance duties; that the yacht in question had been in a navigable condition only two or .three months before Daffin received his fatal injuries thereon; that at the time of his injury he had not signed any articles as a member of the yacht crew, and did not sleep or eat on board the vessel; that throughout the entire period of his employment by Pape he was carried on the payroll of radio station WALA, listed as a laborer or handy-man; that the yacht Vigilant was not a seagoing vessel, but only a pleasure craft owned and operated by Pape almost exclusively to entertain regular and prospective advertisers for his radio station, and generally to build up good will for his broadcasting business. It was further shown that during the entire period of his employment Daffin was vari*626ously engaged as a (1) porter at the broadcasting station, (2) chauffeur, (3) yardman, (4) waiter, (5) personal valet, and (6) general handy-man to his employer. In fact, it appears clearly from the evidence that Daffin, while employed in his general capacity as handyman to Pape, was used in as many different things as pepper and salt. In any event, he was not normally under the direction, supervision, or control of the master of the yacht,1 but was at all times subject to Pape’s orders, and received instructions “more or less in everything he would do”. Even when Daffin worked on his yacht Pape admitted there was no contemplated change of his status from porter and handy-man to crew member of the vessel. His pay remained the same, and he continued to work, live, sleep, and eat ashore.
I am of opinion substantial evidence supports the finding of the Deputy Commissioner that at the time of his injury Daffin was not a member of the yacht crew. Moreover, since this disputed factual issue has already been resolved in appellants’ favor, with ample evidence to support the view taken by the Deputy Commissioner, I do not believe the district court was warranted in overturning his findings in this regard. South Chicago Coal & Dock Co., et al. v. Bassett, 309 U.S. 251, 257, 60 S.Ct. 544, 84 L.Ed. 732; Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931; Wm. Spencer & Son Corp. v. Lowe, 2 Cir., 152 F.2d 847; Schantz v. American Dredging Co., 3 Cir., 138 F.2d 534, 536.2
The case of Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931, strongly relied upon by the majority, is not applicable or controlling in favor of their decision, as the facts in that case render it clearly distinguishable from the facts here. In that case, a bargeman injured while employed under a union contract with a navigation company, was held properly excluded, as a matter of law, from any benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, because the evidence showed conclusively that he was master of the barge on which he was injured. In fact, “at the time of the injury he was the sole person aboard or employed upon the barge.” Norton v. Warner Co., 321 U.S. 565, 568, 64 S.Ct. 747. He lived, ate, and slept on the barge at all times. His duties consisted of taking general care of the barge to which he alone was assigned, and those duties required his continuous presence on board. Moreover, it was expressly stated in his contract of employment that compensation was “for all work performed by Bargeman in the operation of his own vessel”: He had no duties in connection with the loading or unloading of supplies and no shore duties whatever. He was at all times subject to the orders of the company’s marine superintendent, except when in tow, at which time he was subject only to the control of the tugboat captain. It becomes manifest, in view of the wide factual gap between the Warner case and this case, that it does not support the holding of the majority that the question here involved is solely one of law. The evidence in the Warner case was open to no other reasonable inference but that Rusin, as master and sole person on board the barge at the time of his injury, was expressly excluded from the benefits of the Act. Here, we are confronted with a case involving a disputed factual issue.
The majority opinion seems to hold that Daffin, by merely performing temporary duty on board the yacht at the time of his injury, thereby instantaneously relin*627quished, as a matter of law, the permanent character of his employment as a porter and handy-man t<5 his employer, and stepped into his assigned role as a member of the yacht crew. I am constrained to believe the majority and the district court, in overriding the Deputy Commissioner’s contrary determination, are assuming fact finding prerogatives not vested by Congress in the courts.
I respectfully dissent
In this connection, the master of the yacht testified:
“Q. What percentage of time would you say he was out on the boat while being navigated? A. I don’t suppose it would be an average of twice a week, over 15% of Ms time or 20%. Some weeks we were not out as often as others.”
As was stated by Chief Justice Hughes, speaking for the Supreme Court in the case of South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257, 258, 60 S.Ct. 544, 548: “ * * * So far as the decision that this employee, who was at work on this vessel in navigable waters when he sustained his injuries, was or was not ‘a member of a crew’ turns on questions of fact, the authority to determine such questions has been confided by Congress to the deputy commissioner * * * Ms finding, if there was evidence to support it, was conclusive * *