Avondale Shipyards, Inc. v. Donovan

Decision Date13 July 1961
Docket NumberNo. 18695.,18695.
Citation293 F.2d 51
PartiesAVONDALE SHIPYARDS, INC., Appellant, v. P. J. DONOVAN, Deputy Commissioner Seventh Compensation District, Bureau of Employees' Compensation, U. S. Department of Labor, and Minus Aizen, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Charles Kohlmeyer, Jr., H. Martin Hunley, Jr., New Orleans, La., Lemle & Kelleher, New Orleans, La., of counsel, for appellant.

Francis G. Weller, Asst. U. S. Atty., Samuel C. Gainsburgh, Raymond H. Kierr, New Orleans, La., Morton Hollander and David L. Rose, Attys., Dept. of Justice, Washington, D. C., Herbert P. Miller, Asst. Sol., Dept. of Labor, Washington, D. C., William H. Orrick, Jr., Asst. Atty. Gen., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellees.

Before CAMERON, BROWN, and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents for decision the identical question this day decided in Travelers Ins. Co. v. Calbeck, Deputy Commissioner, 5 Cir., 1961, 293 F.2d 52, whether injuries received by a person working on an uncompleted vessel, launched and afloat but still under construction, are covered under the State or the Federal Longshoremen's Act.

The facts are not significantly different. The employer, Avondale Marine Ways, Inc., has two large shipyards and regularly performs new construction work and repair work. Generally in the employer's large labor force the work performed by a particular employee was primarily one rather than the other. Occasionally an employee would perform the other. The injured employee, however, worked regularly and solely in new construction. The injuries were received on August 11, 1956, while the employee was working as a welder on an uncompleted elevated deck drilling barge. The hull had been launched July 26, 1956, but the vessel was not completed and delivered until November 17, 1956. By stipulation the barge, at the time of the accident, was 57% complete based both on probable dollar cost and estimated man hours of work.

Unlike the Calbeck case only one Award was issued here. On January 27, 1960, Deputy Commissioner Donovan entered an Award of compensation benefits under the Longshoremen's Act. This was, of course, subsequent to the two Orders of Deputy Commissioner Calbeck in the other similar case then pending before the Bureau of Employees' Compensation, but it was prior to the District Court's Order of April 20, 1960, which remanded the matter for further proceedings and resulted in a...

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4 cases
  • Travelers Insurance Company v. Calbeck
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 13, 1961
    ...case from a different district. Argued and submitted on the same day, it has been decided this day. Avondale Shipyards, Inc. v. Donovan, Deputy Commissioner, 5 Cir., 1961, 293 F.2d 51. 3 Davis v. Department of Labor of Washington, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, 1942 A.M.C. ......
  • Calbeck v. Travelers Insurance Co Donovan v. Avondale Shipyards, Inc
    • United States
    • U.S. Supreme Court
    • June 4, 1962
    ...the vessel is on navigable waters, but also on whether the vessel was under repair rather than under construction. Avondale Shipyards, Inc. v. Donovan, 5 Cir., 293 F.2d 51; Travelers Insurance Co. v. Calbeck, 5 Cir., 293 F.2d 52. We granted certiorari because of the importance of the interp......
  • Simpson v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 81-1455
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 23, 1982
    ...prevailed before the Fifth Circuit Court of Appeals, Travelers Ins. Co. v. Calbeck, 293 F.2d 52 (5th Cir. 1961); Avondale Shipyards, Inc. v. Donovan, 293 F.2d 51 (5th Cir. 1961) on the basis of the following 1. Section 3(a) of the Act declared that compensation was available under federal l......
  • Mike Hooks, Inc. v. Pena
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 28, 1963
    ...Travelers Ins. Co., 1962, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368, 1962 A.M.C. 1413, reversing Avondale Shipyards, Inc. v. Donovan, 5 Cir., 1961, 293 F.2d 51, 1961 A.M.C. 2006, 2007, 2009, and Travelers Ins. Co. v. Calbeck, 5 Cir., 1961, 293 F.2d 6 The District Judge's order, unaccompani......

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