SHACKELFORD MILLER, Jr., Circuit Judge.
The appellee, as the widow of the decedent George F. Holland, filed in the Office of the Deputy Commissioner, Bureau of Employees’ Compensation, United States Department of Labor, administering the Longshoremen’s and Harbor Workers’ Compensation Act, her claim for compensation by reason of the death of her husband while in the employ of the appellant. Section 901 et seq., Title 33 U.S.C.A.
Holland was employed by the appellant as a clean-up man in the appellant’s sand and gravel yards located on the banks of the Tennessee River, at Chattanooga, Tenn. His working hours were from 3:00 p. m. and continuing for eight or more hours a day. Appellant also had in its employ a night watchman whose duties were to make hourly rounds of the yard and of any barges that might be moored at the yard dock. On the night of November 23, 1954, Holland voluntarily told the night watchman that he would go with him when he made his eleven o’clock rounds and help check the barges before he left. While returning from the check, Holland slipped and fell between two barges into the river and drowned.
Appellant’s answer interposed several defenses, including a denial that at the time of his death Holland was performing services growing out of and incidental to his employment, and stating affirm^ atively that the employee at the time of his death was not in maritime employment and was not performing any duty required by his employment.
Following a hearing, the Deputy Commissioner found the facts as above stated and made the additional findings that Holland’s duties were entirely on land within the yard premises, that he had no duties on the barges, that he was not directed, authorized, or requested to accompany the watchman, and that the claim did not come within the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act. Basing his [307]*307ruling on the foregoing findings, he ordered that the claim be rejected.
There was also uncontradicted testimony that on one previous occasion when a barge was in distress and needed pumping out, the night watchman called appellant’s superintendent and asked permission to get Holland to help pump it out, and that such permission was given; that there was no authority in the night watchman to call on Holland for assistance on the barges and that he had only done so on the one occasion when permission had been given; that Holland would have implied authority to do what he could in ease of an emergency; that on the night in question there had been a little shower and some wind; that the barges were in good shape when the night watchman made his ten o’clock rounds; that the night watchman found the barges tied up all right and it was not necessary to do anything about them. These facts were not included in the Deputy Commissioner’s findings.
The appellee thereafter filed this action in the District Court to review the order of the Deputy Commissioner, as not in accordance with law, and prayed for a mandatory injunction directing the Deputy Commissioner to set aside the findings of fact and to make an order against the appellant awarding to the appellee the benefits to which she and her minor children were entitled under the Act. Section 921(b), Title 33 U.S.C.A.
The District Judge, on his review of the record, ruled that the findings of fact made by the Deputy Commissioner failed to cover the question of whether Holland was acting in the course of his employment, and “this court now decides that Holland was acting within the scope of his employment.” He rejected other defenses relied upon by appellant, and held that the claim was within the coverage of the Act. He ruled that the order of the Deputy Commissioner was not in accordance with law and the facts and should be set aside, and directed the Deputy Commissioner to enter an order awarding compensation. The present appeal is from that judgment.
At the outset there is presented the issue whether Holland’s death arose out of and in the course of his employment, which is a basic one in the case and which could be decisive. Since the appellant had other employees engaged in maritime employment, and since Holland’s death admittedly occurred upon navigable waters of the United States, his widow was entitled to compensation under the Act if his death arose out of and in the course of his employment, whether or not he was engaged in “maritime employment.” Sections 902(2), 903 (a), Title 33 U.S.C.A. Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367.
If the Deputy Commissioner made a finding that Holland’s death did not arise out of and in the course of his employment the scope of judicial review is sharply limited by the statutory provisions of the Longshoremen’s Act, and the Administrative Procedure Act, Sections 919(a), 921(b), Title 33 U.S.C.A.; Sect. 1009(e), Title 5 U.S.C.A. If supported by the evidence and not inconsistent with the law, the Deputy Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive. An opposite inference can not be substituted by a reviewing court because of a belief that the one chosen by the Deputy Commissioner is factually questionable. It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 477-478, 67 S.Ct. 801, 91 L.Ed. 1028; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508-509, 71 S.Ct. 470, 95 L.Ed. 483; Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 246, 62 S.Ct. 221, 86 L.Ed. 184; Hurley v. Lowe, 83 U.S.App.D.C. 123, 168 F.2d 553, 555, certiorari denied 334 U.S. 828, 68 S.Ct. 1338, 92 L.Ed. 1756; Wetzel v. Britton, 83 U.S.App.D.C. 327, 170 F.2d 285, 287; Kwasizur v. Cardillo, 3 Cir., 175 F.2d 235, 236, certiorari denied 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540.
[308]*308The District Judge ruled that the Deputy Commissioner made no such finding. If that is correct, we have an entirely different question to consider, in that we are asked to review an agency ruling based on findings which omit a finding which is essential to the decision of this case. We can not substitute for this omission the finding of the District Judge that the accident arose out of and in the course of the employment. The Deputy Commissioner, not the Court, is to make such a finding. The District Court’s function in such cases is to review the findings in the light of the principles hereinabove stated, not to make findings de novo. Ocean S.S. Co. of Savannah v. Lawson, 5 Cir., 68 F. 2d 55, 57. The District Court has no power to make its own findings de novo. Marshall v. Pletz, 317 U.S. 383, 388, 63 S.Ct. 284, 87 L.Ed. 348; Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. 469, 478, 67 S.Ct. 801, 91 L.Ed. 1028.
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SHACKELFORD MILLER, Jr., Circuit Judge.
The appellee, as the widow of the decedent George F. Holland, filed in the Office of the Deputy Commissioner, Bureau of Employees’ Compensation, United States Department of Labor, administering the Longshoremen’s and Harbor Workers’ Compensation Act, her claim for compensation by reason of the death of her husband while in the employ of the appellant. Section 901 et seq., Title 33 U.S.C.A.
Holland was employed by the appellant as a clean-up man in the appellant’s sand and gravel yards located on the banks of the Tennessee River, at Chattanooga, Tenn. His working hours were from 3:00 p. m. and continuing for eight or more hours a day. Appellant also had in its employ a night watchman whose duties were to make hourly rounds of the yard and of any barges that might be moored at the yard dock. On the night of November 23, 1954, Holland voluntarily told the night watchman that he would go with him when he made his eleven o’clock rounds and help check the barges before he left. While returning from the check, Holland slipped and fell between two barges into the river and drowned.
Appellant’s answer interposed several defenses, including a denial that at the time of his death Holland was performing services growing out of and incidental to his employment, and stating affirm^ atively that the employee at the time of his death was not in maritime employment and was not performing any duty required by his employment.
Following a hearing, the Deputy Commissioner found the facts as above stated and made the additional findings that Holland’s duties were entirely on land within the yard premises, that he had no duties on the barges, that he was not directed, authorized, or requested to accompany the watchman, and that the claim did not come within the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act. Basing his [307]*307ruling on the foregoing findings, he ordered that the claim be rejected.
There was also uncontradicted testimony that on one previous occasion when a barge was in distress and needed pumping out, the night watchman called appellant’s superintendent and asked permission to get Holland to help pump it out, and that such permission was given; that there was no authority in the night watchman to call on Holland for assistance on the barges and that he had only done so on the one occasion when permission had been given; that Holland would have implied authority to do what he could in ease of an emergency; that on the night in question there had been a little shower and some wind; that the barges were in good shape when the night watchman made his ten o’clock rounds; that the night watchman found the barges tied up all right and it was not necessary to do anything about them. These facts were not included in the Deputy Commissioner’s findings.
The appellee thereafter filed this action in the District Court to review the order of the Deputy Commissioner, as not in accordance with law, and prayed for a mandatory injunction directing the Deputy Commissioner to set aside the findings of fact and to make an order against the appellant awarding to the appellee the benefits to which she and her minor children were entitled under the Act. Section 921(b), Title 33 U.S.C.A.
The District Judge, on his review of the record, ruled that the findings of fact made by the Deputy Commissioner failed to cover the question of whether Holland was acting in the course of his employment, and “this court now decides that Holland was acting within the scope of his employment.” He rejected other defenses relied upon by appellant, and held that the claim was within the coverage of the Act. He ruled that the order of the Deputy Commissioner was not in accordance with law and the facts and should be set aside, and directed the Deputy Commissioner to enter an order awarding compensation. The present appeal is from that judgment.
At the outset there is presented the issue whether Holland’s death arose out of and in the course of his employment, which is a basic one in the case and which could be decisive. Since the appellant had other employees engaged in maritime employment, and since Holland’s death admittedly occurred upon navigable waters of the United States, his widow was entitled to compensation under the Act if his death arose out of and in the course of his employment, whether or not he was engaged in “maritime employment.” Sections 902(2), 903 (a), Title 33 U.S.C.A. Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367.
If the Deputy Commissioner made a finding that Holland’s death did not arise out of and in the course of his employment the scope of judicial review is sharply limited by the statutory provisions of the Longshoremen’s Act, and the Administrative Procedure Act, Sections 919(a), 921(b), Title 33 U.S.C.A.; Sect. 1009(e), Title 5 U.S.C.A. If supported by the evidence and not inconsistent with the law, the Deputy Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive. An opposite inference can not be substituted by a reviewing court because of a belief that the one chosen by the Deputy Commissioner is factually questionable. It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 477-478, 67 S.Ct. 801, 91 L.Ed. 1028; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508-509, 71 S.Ct. 470, 95 L.Ed. 483; Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 246, 62 S.Ct. 221, 86 L.Ed. 184; Hurley v. Lowe, 83 U.S.App.D.C. 123, 168 F.2d 553, 555, certiorari denied 334 U.S. 828, 68 S.Ct. 1338, 92 L.Ed. 1756; Wetzel v. Britton, 83 U.S.App.D.C. 327, 170 F.2d 285, 287; Kwasizur v. Cardillo, 3 Cir., 175 F.2d 235, 236, certiorari denied 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540.
[308]*308The District Judge ruled that the Deputy Commissioner made no such finding. If that is correct, we have an entirely different question to consider, in that we are asked to review an agency ruling based on findings which omit a finding which is essential to the decision of this case. We can not substitute for this omission the finding of the District Judge that the accident arose out of and in the course of the employment. The Deputy Commissioner, not the Court, is to make such a finding. The District Court’s function in such cases is to review the findings in the light of the principles hereinabove stated, not to make findings de novo. Ocean S.S. Co. of Savannah v. Lawson, 5 Cir., 68 F. 2d 55, 57. The District Court has no power to make its own findings de novo. Marshall v. Pletz, 317 U.S. 383, 388, 63 S.Ct. 284, 87 L.Ed. 348; Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. 469, 478, 67 S.Ct. 801, 91 L.Ed. 1028.
It is contended, however, that since the basic facts are undisputed, the conclusions drawn therefrom by the Deputy Commissioner are actually mixed questions of law and fact which are not binding upon the reviewing court, which is authorized to draw its own conclusions from such undisputed basic facts. Ward v. Cardillo, 77 U.S.App.D.C. 343, 135 F. 2d 260, 261; Kraft Foods Co. v. C. I. R., 2 Cir., 232 F.2d 118, 122. Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 490, 57 S.Ct. 569, 81 L.Ed. 755. This Court has also so held. E. H. Sheldon & Co. v. Commissioner, 6 Cir., 214 F.2d 655, 658-659, and cases cited in support of the ruling. In discussing this question and in making a similar ruling the Court of Appeals for the First Circuit took occasion to remark, “There is a singular lack of unanimity on this point, not only between, but within, individual circuits,” citing numerous cases as examples of the conflict. Texas Co. v. R. O’Brien & Co., 1 Cir., 242 F.2d 526, 529, Note 1.
Apparently, such a conflict exists in our own circuit. United States v. Cold Metal Process Co., 6 Cir., 164 F.2d 754, 755, certiorari denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742, rehearing denied, 334 U.S. 835, 68 S.Ct. 1343, 92 L.Ed. 1761; Rich v. Pappas, 6 Cir., 229 F.2d 308, 313. In our most recent ruling on this question in the Rich case we held that reasonable inferences drawn by the District Judge from uneontradicted facts were controlling on review unless clearly erroneous, citing in support of the ruling United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 541, 92 L.Ed. 746. The Supreme Court there said, “In so far as this finding and others to which we shall refer are inferences drawn from documents or undisputed facts, heretofore described or set out, Rule 52(a) of the Rules of Civil Procedure [28 U.S.C.A.) is applicable.” See also: Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 5 Cir., 137 F.2d 176, 180, affirmed 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949; Note of Advisory Committee on Rules for Civil Procedure contained in Proposed Amendments to Rules of Civil Procedure, Rule 52(a), October 1955. We think the ruling of the Supreme Court in the United States Gypsum Co. case, which has recently been followed by us in the Rich case, is controlling on the issue.
With respect to the present particular type of administrative action, we think the ruling of the Supreme Court in Cardillo v. Liberty Mutual Ins. Co., supra, 330 U.S. 469, 478, 67 S.Ct. 801, 807, 91 L.Ed. 1028, expressly forecloses the right of the District Court or this Court to make our own inferences or conclusions from basic undisputed facts. The Court there said, “It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. * * * It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Emphasis added.)
Accordingly, our problem in this case is to determine if the Deputy Commis[309]*309sioner made a finding that Holiand’s death did not arise out of and in the course of his employment, and if we determine such a finding was made, to review it under the well established formula stated and used in the Cardillo case, supra. If we determine that no finding was made by the Deputy Commissioner on this vital issue, the action should be remanded to the District Court with instructions that it remand the action to the Deputy Commissioner for a finding by him based on all the evidence whether Holland’s death arose out of and in the course of his employment within the meaning of the Act. Ocean S.S. Co. of Savannah v. Lawson, supra; Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 221 F.2d 103, 106; Howard v. Monahan, D.C.S.D.Tex., 33 F.2d 220; Morand Bros. Beverage Co. v. N. L. R. B., 7 Cir., 190 F.2d 576, 584; American Broadcasting Co. v. Federal Communications Commission, 85 U.S.App.D.C. 343, 179 F.2d 437, 445; Monrote v. Britton, 99 U.S.App.D.C. 128, 237 F.2d 756, 759.
The “ultimate finding” of the Deputy Commissioner is “that the claim filed by the dependents does not come within the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.” He also included among his general findings a specific finding that Holland’s duties were entirely on land within the yard premises, which the District Judge considered erroneous and refused to accept. Neither of these two findings is an express finding that Holland’s death did not arise out of and in the course of his employment. It is contended that it should not even be construed as an implied finding to that effect.
It is possible and in fact probable that the Deputy Commissioner’s “ultimate finding” is a conclusion based upon the specific finding that Holland’s duties were entirely on land within the yard premises. Appellant has, throughout this litigation, including its argument on this appeal, taken the position that if Holland’s duties were entirely on land the Compensation Act did not apply to him. The Deputy Commissioner in making his ultimate finding may have adopted that view of the law.
Such a conclusion, however, is an incorrect one. If we accept the ruling of the District Judge that the specific finding is an erroneous one which must be rejected, there is no basis left for the Deputy Commissioner’s conclusion. Even if the specific finding is allowed to stand, a conclusion based on it is erroneous as a matter of law. The contention that the injured employee must be a maritime employee in order to come within the provisions of the Act was rejected by the Supreme Court in Pennsylvania R. Co. v. O’Rourke, supra, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367. Sections 902(4), 904(a), Title 33 U.S.C.A., impose liability upon an employer, any of whose employees are employed in maritime employment, if the accidental injury or death is otherwise covered by the Act. The necessary requirements under Sections 902(2) and 903(a), Title 33 U.S.C.A., are that the injury or death arise out of and in the course of employment and that it occur upon the navigable waters of the United States, including any dry dock. Since-it is undisputed in the present case that the appellant had employees engaged in maritime employment and that the accident resulting in Holland’s death occurred upon the navigable waters of the United States, the only issue before us with respect to coverage under the Act is whether the accident arose out of and in the course of Holland’s employment.
We are unable to say with any degree of certainty that the Deputy Commissioner’s finding that “the claim filed by the dependents does not come within the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act” is in fact an independent finding that Holland’s death did not arise out of and in the course of his employment. We are unable to adequately review the ruling in this case without an express finding by the Deputy Commissioner on that issue. The orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be [310]*310clearly disclosed and adequately sustained. Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 94-95, 63 S.Ct. 454, 87 L.Ed. 626. For that reason, the case will be sent back to the Deputy Commissioner for an express finding by him on that issue, with recognition by him in doing so that the Compensation Act is applicable to an employer, any of whose employees are employed in maritime employment, if the accidental injury or death is otherwise covered by the Act.
Appellee seeks to have the judgment affirmed on the ground of estoppel by judgment. Before filing the present action, she filed a suit for damages in the state court. The defendant there, who is the appellant in this action, filed two pleas in abatement, (1) that it was at the time of the accident operating under the Workmen’s Compensation Law of Tennessee, T.C.A. § 50-901 et seq., which constituted a bar to a common law action for damages, and (2) that at the time of the accident, Holland was an employee, that both the employer and the employee were operating under the Workmen’s Compensation Law of Tennessee, that Holland’s death arose out of and in the course of his employment entitling the claimant to the benefits provided by that law, that the claimant filed a claim for such benefits and had received compensation, and had thereby waived any right to maintain any common law action for damage. The Judge sustained “defendant’s plea in abatement” and dismissed the action. The record does not indicate which of the two pleas he referred to. The District Judge held that since the plea in abatement was sustained, the appellant could not come into the District Court and maintain that the death of Holland did not arise out of and in the course of his employment, and that even if the judgment in the state court was not res judicata, appellant could not in this case assume a contrary position to the position taken in the state court.
Clearly, the state court judgment does not constitute res judicata. Although the parties were the same, the causes of action were different. There-was no decision upon the merits. Swift v. McPherson, 232 U.S. 51, 34 S.Ct. 239, 58 L.Ed. 499. But there may be estoppel by judgment, as distinguished froñares judicata even though the causes of' action are different. If the precise question here involved was raised and determined adversely to the appellant in that suit, it would operate as an estoppel by judgment in the present suit. But if the judgment in the former suit could be based on an issue not involved in the-later suit and it is not made to appear on which of the several issues the judgment was based, estoppel by judgment, does not arise. Kelliher v. Stone & Webster, 5 Cir., 75 F.2d 331; Russell v. Place, 4 Otto 606, 94 U.S. 606, 24 L.Ed. 214; De Sollar v. Hanscome, 158 U.S. 216, 221, 15 S.Ct. 816, 39 L.Ed. 956. In the present case the judgment of dismissal could properly rest upon the first plea that the appellant was operating under the Workmen’s Compensation Law of' Tennessee, which in itself was a bar to-the common law action. It was not necessary that there be any adjudication on the issue of whether Holland’s death arose out of and in the course of his-employment as claimed in the second plea. Estoppel by judgment is not shown by the record before us.
With respect to the effect of' the second plea in abatement in the prior-state court suit, the allegation therein that Holland’s death arose out of and in the course of his employment is not binding on the appellant in this case, even though contradictory to its present contention. Under Rule 8(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A., inconsistent defenses are permitted even in the same action. Kentucky Home Mutual Life Ins. Co. v. Duling, 6 Cir., 190 F.2d 797, 801. Allegations in pleadings in other actions are admissible in evidence as admissions, but are not conclusive, and should be considered in connection with any other evidence which may be offered in explanation. Anderson v. Tway, 6 Cir., 143 F.2d 95, 100, certiorari denied 324 U.S. 861, 65 S.Ct. [311]*311865, 89 L.Ed. 1418; Fuller v. King, 6 Cir., 204 F.2d 586, 590; Frank R. Jelleff, Inc., v. Braden, 98 U.S.App.D.C. 180, 233 F.2d 671, 676; Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 2 Cir., 32 F.2d 195, 198, certiorari denied 280 U.S. 579, 50 S.Ct. 32, 74 L.Ed. 629; Tiana Corp. v. Hartley, D.C.S.D.N.Y., 99 F.Supp. 670, 672.
The judgment of the District Court is vacated, and the action remanded to the District Court with instructions that it remand the action to the Deputy Commissioner for a finding by him based on all the evidence whether the decedent’s death arose out of and in the course of his employment within the meaning of the Act, and for further proceedings thereafter by the District Court in accordance with the views expressed herein.