Johnson v. Traynor

• Decision Date: 22 June 1965
• Docket Number: No. 4704,4705.,4704
• Citation: 243 F. Supp. 184
• Parties: William H. JOHNSON v. John P. TRAYNOR, Deputy Commissioner, United States Department of Labor and Nacirema Operation Company, Inc., a body corporate. Julia T. KLOSEK, widow of Joseph J. Klosek, deceased employee v. John P. TRAYNOR, Deputy Commissioner, United States Department of Labor and Nacirema Operating Company, Inc., a body corporate.
• Court: U.S. District Court — District of Maryland

243 F. Supp. 184

William H. JOHNSON v. John P. TRAYNOR, Deputy Commissioner, United States Department of Labor and Nacirema Operation Company, Inc., a body corporate.

Julia T. KLOSEK, widow of Joseph J. Klosek, deceased employee v. John P. TRAYNOR, Deputy Commissioner, United States Department of Labor and Nacirema Operating Company, Inc., a body corporate.

Nos. 4704, 4705.

United States District Court D. Maryland.

June 22, 1965.

John J. O'Connor, Jr., O'Connor & Preston, Baltimore, Md., for complainants.

Randall C. Coleman and Thomas W. Jamison, III, Baltimore, Md., for respondent Nacirema Operating Co., Inc.

Thomas J. Kenney, U. S. Atty., and Joseph H. H. Kaplan, Asst. U. S. Atty., Baltimore, Md., for Deputy Commissioner; Charles Donahue, Sol. of Labor, Alfred H. Myers and George Lilly, United States Dept. of Labor, Washington, D. C., of counsel.

WATKINS, District Judge.

These companion proceedings were brought by William H. Johnson, injured longshoreman, and Julia T. Klosek, widow of Joseph J. Klosek, deceased longshoreman, pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. (the Longshoremen's Act) to review and set aside, as not in accordance with law, compensation orders filed by John P. Traynor, Deputy Commissioner, United States Department of Labor, denying compensation benefits under the act to the claimants. The factual background giving rise to each claim is identical, the same legal question is presented as to each claim and counsel for the respective parties are the same in each case. Accordingly, the Deputy Commissioner held a combined hearing on both claims and in this court likewise the proceedings for review in both cases have been combined.

The facts as found by the Deputy Commissioner are not in dispute. On November 14, 1963 Johnson and Klosek, longshoremen and employees of the Nacirema Operating Company, Inc., were engaged in loading the S.S. Bethtex, a vessel afloat in the navigable waters of the Patapsco River at Sparrows Point, Maryland. Both men were assigned to and stationed in a gondola type railroad car which was sixty feet in length, ten feet in width and nine feet in height and was positioned on railroad tracks on the High Pier at the Bethlehem Steel Plant at Sparrows Point. The longshoremen were engaged in hooking up approximately ten ton drafts of steel beams which were then hoisted from the railroad car by use of a crane located on the S.S. Bethtex. One such draft while being lifted into a hold of the vessel swung back, struck Klosek and propelled him head first out of the gondola onto the pier, fatally injuring him. Johnson was pinned by the same draft against the side of the gondola car and suffered serious injuries. The pier on which the accident took place is permanently affixed to the land at its northernmost end. Its surface extends over the waters of the Patapsco River in a southerly direction. The pier is approximately six hundred feet long and its surface consists of three sets of railroad tracks on each side, which tracks are extensions of tracks originating in the railroad shifting yard of the adjacent Bethlehem Steel properties. There is a fifty foot center strip on the pier which is covered by steel plating. At the time of the injury the S.S. Bethtex was docked stern in on the east side of the pier. The gondola car in which the decedent and injured claimant were working was situated parallel to and alongside the vessel on the third railroad track.

Claims were filed on behalf of both claimants under the Maryland Workmen's Compensation Act. (Article 101, section 1 et seq., Annotated Code of Public General Laws of Maryland, 1957 Edition). Johnson has been paid in accordance with the Maryland State Workmen's Compensation Act schedule and although Mrs. Klosek has apparently not as yet received any benefits, her claim has not been contested by Nacirema Operating Company or its insurance carrier and the court is advised that it is anticipated that compensation will be forthcoming under the Maryland Act.

In addition Johnson and Mrs. Klosek submitted timely claims against Nacirema Operating Company under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.; he for temporary and permanent disability and she for death benefits. Answers were filed on behalf of the employer and insurance carrier raising, among other defenses, lack of jurisdiction over the subject matter of the compensation claims. The hearing before the Deputy Commissioner was limited to the question of jurisdiction and it is the sole issue before this court. The Deputy Commissioner rejected both claims for compensation on the ground that the disability of Johnson and the death of Klosek did not result "from an injury occurring upon the navigable waters of the United States (including any dry dock)", emphasis supplied, as that jurisdictional prerequisite for the applicability of, and for coverage under, the provisions of the Longshoremen's and Harbor Workers' Compensation Act has been interpreted by the courts.

Section 903(a) of Title 33, U.S.C.A., entitled "Coverage" provides, in pertinent part:

"(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law."

Claimants urge two grounds for finding them within the coverage of the Act:

(1) That in simple fact both wharves and ships are upon the water and that accordingly there should be no difference in the result as to coverage between injuries occurring on a wharf or pier over and upon navigable waters and injuries occurring on a deck of a vessel over and upon navigable waters and (2) that in any event the Extension of Admiralty Jurisdiction Act of 1948 (46 U.S.C.A. § 740) by embracing within the admiralty and maritime jurisdiction of the United States Courts certain shoreside injuries has likewise extended the coverage of the Longshoremen's and Harbor Workers' Compensation Act to injuries occurring on land. The court will consider these two contentions in turn.

(1) It has been uniformly held that structures such as wharves, piers, etc., affixed permanently to shore and bed, are extensions of land, remedies for injuries upon which are restricted to those afforded by local rather than admiralty law. (Swanson v. Marra Brothers, 1946, 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045; State Industrial Commission of State of New York v. Nordenholt Corp., 1922, 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933; American Export Lines, Inc. v. Revel, 4 Cir. 1959, 266 F.2d 82, 84; see also: Hastings v. Mann, 4 Cir. 1965, 340 F.2d 910, 911-912; Benedict on Admiralty, section 29, page 64, 6th Edition; Gilmore & Black, The Law of Admiralty, section 6-46, page 339, 1957 Edition; and Robinson on Admiralty, section 11, page 81, 1939 Edition). In the Nordenholt case, decided prior to the enactment of the Longshoremen's Act, the Supreme Court of the United States clearly held that an injury incurred by a longshoreman who, while engaged in unloading a vessel lying in navigable waters, slipped and fell on the "dock"¹ was a land injury and, therefore, that recovery for such an injury was governed by the local state workmen's compensation act and not by general maritime law. After the enactment of the Longshoremen's Act the Supreme Court of the United States reaffirmed the principle set out in the Nordenholt case and adhered to it without deviation in the Swanson case. Swanson, a longshoreman, while on a pier and while engaged in loading cargo on a vessel lying alongside, was injured when a life raft fell from the vessel and struck him. The specific question before the court was whether or not the longshoreman had a right of action against his employer, a stevedoring company, under the Jones Act while working on shore. The court clearly treated the stevedore's injury as a land injury and in interpreting the inter-relationship of the Longshoremen's Act and the Jones Act stated:

"We must take it that the effect of these provisions of the Longshoremen's Act is to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case² only such rights to compensation as are given by the Longshoremen's Act. But since this Act is restricted to compensation for injuries occurring on navigable waters, it excludes from its own terms and from the Jones Act any remedies against the employer for injuries inflicted on shore. The Act leaves the injured employees in such cases to pursue the remedies afforded by the local law, which this Court has often held permits recovery against the employer for injuries inflicted by land torts on his employees who are not members of the crew of a vessel." (Swanson v. Marra Bros., 1946, 328 U.S. 1, 7, 66 S.Ct. 869, 872, 90 L.Ed. 1045 emphasis supplied).

Eleven years after the enactment of the Extension of Admiralty Jurisdiction Act of 1948, the United States Court of Appeals for the Fourth Circuit clearly and unmistakably stated in the Revel case that the Nordenholt-Swanson principle was still the law. Revel, a stevedore, was working on the pier alongside a hold preparing cargo to be hoisted onto the vessel and stowed in the hold. A pallet load of drums, part of the cargo being hoisted, fell onto the pier injuring him. He thereafter received and accepted compensation in accordance with the local state workmen's compensation act. Subsequently, he brought suit, to recover damages for his personal injuries, against the owner of the vessel which he had been helping to load at the time of the accident. On appeal, in analyzing the injured longshoreman's right of...