Atlantic & Gulf Stevedores, Inc. v. Donovan

• Decision Date: 18 January 1960
• Docket Number: No. 18039.,18039.
• Citation: 274 F.2d 794
• Parties: ATLANTIC & GULF STEVEDORES, INC., Appellant, v. P. J. DONOVAN, Deputy Commissioner for the 7th Compensation Dist. of the Bureau of Employee's Compensation, U. S. Dept. of Labor; and Charles Cook, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F.2d 794 (1960)

ATLANTIC & GULF STEVEDORES, INC., Appellant, v. P. J. DONOVAN, Deputy Commissioner for the 7th Compensation Dist. of the Bureau of Employee's Compensation, U. S. Dept. of Labor; and Charles Cook, Appellee.

No. 18039.

United States Court of Appeals Fifth Circuit.

January 18, 1960.

Marion Mayer, Guy W. Smith, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellant.

Lloyd Cyril Melancon, Asst. U. S. Atty., New Orleans, La., for appellees.

M. Hepburn Many, U. S. Atty., New Orleans, La., Harold C. Nystrom, Acting Sol. of Labor, Herbert P. Miller, Asst. Sol. of Labor, Alfred H. Myers, Atty., U. S. Dept. of Labor, Washington, D. C., of counsel, for appellee Donovan.

Before JONES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question here is whether there is a legal means of requiring the Deputy Commissioner to proceed to decision in a matter properly before him under the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C.A. § 901 et seq.

It is of vast importance as parties related to maritime injuries to a non-seafaring amphibious worker attempt to answer the riddle which Jensen¹ conjured up.

Self-help is unavailing for with the traditional prohibition in Workmen's Compensation Acts, both state and this federal one, against contractual waivers or releases there is no end to a potential claim until the last gong has rung in the last and highest tribunal which will listen. Guidance by experienced maritime counsel is uncertain. For his tools must be the jurisprudence which, to say the least, is more, not less, complex than it was in the pre-Davis² day, and all the more so since Hahn³ as the changes of this Court in Noah⁴ shortly on the heels of Flowers,⁵ revealed. And while this Court has now firmly ruled that maritime injuries to one engaged in the classic occupation of a longshoreman loading or unloading a vessel,⁶ and one engaged in repair of an existing vessel⁷ are within the exclusive jurisdiction of the federal Act, not that of a state, the access of litigants to state tribunals makes ours an academic deliverance⁸ until either the state courts concerned accept it as authoritative or their contrary decisions are upset by the possibility⁹ of certiorari from the United States Supreme Court.

So it is here. After voluntary payment of substantial compensation under the Longshoremen's Act, the Employer now finds himself faced with a claim under the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., in the state court while the case file yet remains open — at least not closed — before the Deputy Commissioner. The Employer did not seek coercive injunctive relief against either the Claimant or the state court. Rather it sought (a) a declaration under 28 §§ 2201, 2202, that the Longshoremen's Act was the Claimant's exclusive remedy and, alternatively, (b) a mandatory order directing the Deputy Commissioner to "proceed with a hearing to determine * * * the * * * issues raised" by the Employer's application before the Deputy Commissioner.

The District Court sustained the Deputy Commissioner's motion to dismiss for "failure to state a claim on which relief can be granted and the lack of jurisdiction for this court to hear and determine the issues presented prior to administrative action taken by the Deputy Commissioner upon a claim first filed for that purpose." Consequently, we accept as true the facts set forth in the complaint.¹⁰ Their summary we take, with but slight change of paraphrase, from the Employer's brief.

Charles Cook, the Claimant, injured his right leg on February 18, 1957 while employed by Employer as a longshoreman. He was landing a pallet board on No. 3 deck aboard the S/S Haria Rosa docked in the Mississippi River at the Congress Street Wharf, New Orleans.

The accident was reported to the Deputy Commissioner's office on February 22, 1957 and Employer continued to make reports to that office. Compensation payments of $18 a week were started immediately, but on May 16, 1957 Cook's attorney notified the Deputy Commissioner that Cook's claim was for $26.61 a week under the Longshoremen's Act and he submitted statements to support the claim. Acting on this information, the Deputy Commissioner found that the weekly compensation payments should be $26.60 and so informed Employer. Employer complied with the ruling and adjusted payments so that Cook received eleven weeks' compensation from May 8, 1957 through July 27, 1957, or $292.71. Payments terminated July 27, 1957 when Cook was given medical clearance and returned to work.

Almost a year later Cook, through his attorney, wrote the Deputy Commissioner to make claim for further compensation for his February 18, 1957 injury. But before any action was taken on this request, he filed a suit for Louisiana Workmen's Compensation benefits, plus 12% penalties and attorneys' fees, in the Civil District Court for the Parish of Orleans.

The Employer thereafter formally requested the Deputy Commissioner to fix a hearing to determine: (i) if the Deputy Commissioner had jurisdiction of the claim; (ii) if Cook's claim under the Longshoremen's Act had prescribed; and (iii) if the Deputy Commissioner had jurisdiction, and the claim had not prescribed, whether Cook was entitled to further compensation benefits under the Longshoremen's Act, and the amount, if any, due under that Act. The Employer's request for a hearing was refused.

In seeking to justify this dismissal, the Deputy Commissioner devotes nearly all of his energy to combating that part of the relief requested in the complaint summarized above as (a) a declaration by the Court under 28 U.S.C.A. §§ 2201, 2202, that the Longshoremen's Act was claimant's exclusive remedy. But this is no longer in the case. The Employer does not undertake now to have us review either the power of the District Court to grant declaratory relief or the propriety of its exercise.¹¹

All that is now involved is the power of the District Court to issue a mandatory decree compelling the Deputy Commissioner to proceed with the hearing — a hearing in which the Deputy Commissioner would arrive at his own decision, and which, under the Longshoremen's Act, 33 U.S.C.A. § 921, would then, and only then, be subject to judicial review. This is a command to hear and adjudicate. Not a command to tell him how it is to be decided.

The Deputy Commissioner's position is difficult to understand. By statute, see note 22, infra, he is charged with the responsibility of deciding all matters relating to compensation payable to persons sustaining specified maritime injuries. The Act by its terms prescribes that it shall be the exclusive remedy, 33 U.S.C.A. § 905, with respect to "an injury occurring upon the navigable waters of the United States * * * if recovery for the disability * * * through workmen's compensation proceedings may not validly be provided by State law." 33 U.S.C.A. § 903(a).

Whatever may be the position of claimants who are so far free to try to get a state court to allow recovery under state compensation acts, the Deputy Commissioner is patently subject to the authoritative declarations of the Federal Courts, and certainly this one, as to a Deputy Commissioner who functions within the geographical confines of this Circuit. So bound, it must have been clear that on the facts asserted, this was an alleged injury sustained by a person while engaged in performance of his duties as a longshoreman in the handling of cargo on a vessel in the Mississippi River. As such, it was, if the evidence bore out the allegations, one exclusively under the Longshoremen's Act, as we had by that time so plainly held in Noah.¹²

The Deputy Commissioner does not really challenge this. Nor does he contend that the claim was not under the Longshoremen's Act. Rather, his position is that he is required, i. e., compelled, by the statute to hold a hearing only when a claim, as such, has been filed. Since compensation was here paid without the filing of a formal claim and none has ever yet been filed, he is not required to hold a hearing. As the Act does not require a hearing under this situation, the Court cannot compel him to do so. At most, the argument goes, a Court may compel only that which the statute orders. And that is lacking here.

It is at this point that the dispute narrows. For the Employer finds explicit direction to the Deputy Commissioner to hold hearings when requested by an interested party on all material questions arising in connection with liability for compensation payments or other benefits under the Act. This it finds in §§ 914(h)¹³ and 919(c).¹⁴ But to them, the Deputy Commissioner insists that by their use of the word "claim" each section has in mind the written, signed formal claim on the usual prescribed official form which was not filed in this case.

A consideration of the whole Act and the automatic "almost self-executing"¹⁵ nature of it is convincing that this is to read the Act and the Deputy Commissioner's responsibilities in much too technical a way. In contrast to many compensation acts which require a formal claim at the outset, what sets the whole thing in motion under the Longshoremen's Act is the accidental maritime injury. The employer must keep a record and make a report within ten days after it has knowledge of a maritime injury. Failure to do so subjects it to liability for $500 civil penalty and tolls the administrative one-year limitation period under § 913(a) until the notice is filed.¹⁶

The momentum, though, is more than mere paper reports. Knowledge of the maritime injury by the employer and the coincidence of resulting disability to the employee sets in train important substantive obligations unless the employer takes affirmative action to controvert liability. Thus, he must, without a preliminary coercive order, "furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine * * * for such...