Ford v. Parker

• Decision Date: 28 September 1943
• Docket Number: No. 2629.,2629.
• Parties: FORD et al. v. PARKER.
• Court: U.S. District Court — District of Maryland

52 F. Supp. 98

FORD et al. v. PARKER.

No. 2629.

District Court, D. Maryland.

September 28, 1943.

Roszel C. Thomsen and Clark, Thomsen & Smith, all of Baltimore, Md., for plaintiffs.

Bernard J. Flynn, U. S. Atty., and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

This is a proceeding to set aside an order of the Deputy Commissioner, United States Employees' Compensation Commission, requiring the complainant Ford as employer, to pay $1,000 into the special fund created by section 44(c) (1) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

The facts are briefly and succinctly stated by the Deputy Commissioner as a result of hearing at which the employer, Ford, was represented by experienced counsel, and no additional evidence has been submitted here.

On July 4, 1942 the tanker "S. S. Esso Augusta" was docked in navigable waters at the Recreation Pier in Baltimore City for repairs by the Bethlehem Steel Company which had leased the pier. Ford, the employer, had contracted with the ship to furnish watchman service while the ship was lying at the pier. Bernard Schnur was one of the watchmen so employed by Ford. The deck of the ship as she lay at the pier was 20 feet or more from the surface of the pier. The access to the ship from the pier was furnished by a long wooden ladder which was based on the pier and lashed to the deck gunwale of the ship. It was Schnur's duty to relieve the watchman on the ship's deck at 11 p. m. on July 4, 1942. About that time he began to ascend the ladder but when he was almost at the top he slipped and fell therefrom to the concrete dock below. From the injuries thus sustained he died on July 27, 1942. He left no dependents entitled to compensation under the Act but the employer's insurance carrier voluntarily paid total disability benefits for more than two weeks during the employe's incapacity, and subsequently paid $200 on account of funeral and burial expenses. The ladder giving access from the ship to the pier was the property of the Bethlehem Steel Company and was furnished by it for that purpose as was its customary practice. It also appeared from the testimony taken before the Deputy Commissioner that the ship's side was close to the dockside, the distance between the dock and the ship's side varying from two to three feet.

The Longshoremen's Act is, of course, a compensation act which is applicable "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." 33 U.S.C.A. § 903. It also does not apply in the case of a master or member of a crew of any vessel, but it is not contended here that Schnur, the employe, was a master or member of the crew of the ship. As the authority of the Deputy Commissioner to make an award in this case was dependent upon the jurisdictional conditions that the injury to the employe must have occurred on navigable waters of the United States, and of such a nature that it could not validly be provided for by state compensation law, the complainants in this case contend that the finding of the existence of the condition that the injury occurred on navigable waters is a jurisdictional fact which must be determined de novo by this court and, therefore, the rules which generally prevail in this class of cases that the award made by the Deputy Commissioner will not be set aside if it is based on substantial evidence, should not control. This proposition was established by Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, and counsel for the Deputy Commissioner has not challenged that case as the present law upon the subject. It is, however, to be noted in this connection that no additional evidence has been submitted in this court and the matter must therefore be decided on the basis of the testimony submitted to the Deputy Commissioner which is included in the record.

The question to be decided is whether the federal or the state compensation law applies. Maryland has a workmen's compensation law, Code Md.1939, art. 101, § 1 et seq., which, for this case, differs in effect from the federal law only in that it makes no requirement for a payment by the employer into a special fund, where the deceased employe leaves no dependent, such as is required by the federal act, 33 U.S.C.A. § 944(c) (1). In the instant case the insurance carrier covered the employer's liability under both the federal and state compensation laws. For the purpose of determining jurisdiction, compensation acts are treated as delictual rather than contractual. Thus the ordinary test between their respective applicabilities is the test of admiralty jurisdiction in tort cases. The familiar general rule for admiralty jurisdiction is that the place where the tort occurs controls. Thus if the tort occurred on navigable waters the admiralty has jurisdiction, with the possible exceptions that the activities must have been of a maritime nature, and also in that very limited class of cases where although the injury occurred on navigable waters, the Supreme Court has held that the state law should be operative because the particular activities were of a purely local nature having no necessary maritime feature. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. ___; Frankel v. Bethlehem Fairfield Shipyard, D.C., 46 F.Supp. 242, 250, Id., 4 Cir., 132 F.2d 634; Robinson on Admiralty, § 10, p. 70 et seq.

This is one of the so-called "ladder or gangway cases" which in the past have frequently been considered by the courts with respect to the boundary line between federal and state jurisdiction, in both tort and compensation cases with some divergence in results. See Robinson on Admiralty, pp. 84-86. What was said by Chief Justice Hughes in The Admiral Peoples, 295 U.S. 649, 651, 55 S.Ct. 885, 886, 79 L.Ed. 1633, is equally applicable here: "This is one of the border cases involving the close distinctions which from time to time are necessary in applying the principles governing the admiralty jurisdiction. That jurisdiction in cases of tort depends upon the locality of the injury. It does not extend to injuries caused by a vessel to persons or property on the land. Where the cause of action arises upon the land, the state law is applicable."

In that case certiorari was granted by the Supreme Court to settle asserted conflict of decisions on the point. Prior to the decision in that case the rule which had been very generally but not universally applied was illustrated by the case of The Atna, D.C., 297 F. 673, and The Brand, D.C., 29 F.2d 792. In the former, 297 F. at page 675, it was said by District Judge Cushman: "When a person is injured in passing over a ladder connecting a vessel with the shore, the admiralty has jurisdiction if he is injured, that is, wronged, before he is entirely free from the ship and has safely reached the shore. If he is passing from the shore to the ship, the admiralty has not jurisdiction until he has reached the ship, and is entirely separated from the shore."

But since the decision in The Admiral Peoples, supra, all the federal cases which I have noted have taken the view that the rule furnishing the test as to jurisdiction has now been changed to the effect that the ladder or gangway, furnishing ingress to or egress from the ship, has been regarded as a part of the ship's equipment and therefore passengers or employes using it for either ingress or egress are considered to be at the time within the admiralty jurisdiction.

In The Admiral Peoples case the court was dealing with a libel in rem against the ship by a passenger who sustained personal injuries in traversing a gangplank from the vessel to the dock. Plaintiff alleged that the gangplank was defectively constructed or arranged in that there was an insufficient guardrail near the shore end of the gangway and an unobservable step down from the end of the gangway to the dock, in consequence of which the passenger fell from the gangway onto the dock sustaining injuries. In holding that the case was within the admiralty jurisdiction, Chief Justice Hughes said: "The basic fact in the instant case is that the gangplank was a part of the vessel. It was a part of the vessel's equipment which was placed in position to enable its passengers to reach the shore. It was no less a part of the vessel because in its extension to the dock it projected over the land. * * * Neither the short distance that she the plaintiff fell, nor the fact that she fell on the dock and not in the water, alters the nature of the cause of action which arose from the breach of duty owing to her while she was still on the ship and using its facility for disembarking." See Minnie v. Port Huron Terminal Co., 295 U.S. 647, 649, 55 S.Ct. 884, 79 L.Ed. 1631.

In The Shang Ho, D.C., 13 F.Supp. 632, affirmed, 9 Cir., 88 F.2d 42, certiorari denied under the title of Fan Shan Hang v. Prestlien, 301 U.S. 705, 57 S.Ct. 938, 81 L.Ed. 1359, the court dealt with a case where a longshoreman who was walking from the dock to the vessel fell from the gangplank. The case was a libel in rem against the ship for negligence. The Circuit Court of Appeals said: "The first contention is that the admiralty court had no jurisdiction because of the fact that the injuries received by the appellee were received by him in the fall to the dock and that he was going to and had not yet reached the ship's side at the time the gangplank fell. It is settled by a recent decision of the Supreme Court (The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633) that the...