De Wald v. Baltimore & OR Co.

• Decision Date: 11 June 1934
• Docket Number: No. 3635.,3635.
• Citation: 71 F.2d 810
• Parties: DE WALD v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

71 F.2d 810 (1934)

DE WALD v. BALTIMORE & O. R. CO.

No. 3635.

Circuit Court of Appeals, Fourth Circuit.

June 11, 1934.

Joseph Loeffler, of Baltimore, Md. (Benjamin Unger and Harry E. Goertz, both of Baltimore, Md., on the brief), for appellant.

George W. P. Whip, of Baltimore, Md. (Allen S. Bowie, of Baltimore, Md., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a suit brought by the appellee, hereinafter referred to as the defendant, to set aside an award of the Deputy Commissioner of the United States Employees' Compensation Commission for the Fourth Compensation District, under the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 901 et seq.), and to enjoin the enforcement of said award.

On the 5th day of November, 1932, one George M. De Wald, who for fourteen years had been in the employment of the defendant (a self-insurer), was accidentally drowned. De Wald at the time of his death was working on three barges or scows, owned by the defendant, which were at the time afloat in the Patapsco river tied up at pier. The duties of the deceased, as found by the Deputy Commissioner from the evidence, were as follows:

"That in his employment as a bargeman, decedent's duties consisted of the checking and supervising the loading and unloading of cargo from barges to steamships and vice versa; seeing that the cargo was safely loaded and unloaded; making a record of all damaged freight; signing receipts for cargo loaded and unloaded; opening and closing hatches on barges and putting in gang-way boards; pumping water out of the barges, and making lines fast and unfast at docks or alongside vessels when the barges were moved about the harbor;

"That the deceased employee lived ashore; that he reported for work each morning at 8 o'clock to see whether he would be needed, but that he was not always given work, averaging about three days per week;

"That the barges on which the deceased was employed had no motive power, equipment or steering apparatus, being towed or pushed by tugboats; that their radius of operation was confined to Baltimore harbor; that when the barges were moved about the harbor and De Wald accompanied them on each such trip, which averaged one per day when working, he had duties to perform with respect to loading or unloading; that on such trips about the harbor De Wald was not responsible for the navigation of the barges and performed no duties in connection with such navigation except the incidental one of making lines fast and unfast, when tying up to dock or alongside vessel."

After a hearing the Deputy Commissioner made an award to Margaret De Wald, as widow of the deceased, in the amount allowed under the statute. On the hearing before the judge of the District Court of the United States for the District of Maryland, a final decree was entered setting aside the award of the Deputy Commissioner and permanently enjoining the enforcement of the same. From this action of the court below this appeal was brought.

The Longshoremen's and Harbor Workers' Compensation Act, 33 USCA § 903, provides, in part, as follows: "(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. No compensation shall be payable in respect of the disability or death of — (1) a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."

The judge below based his decision upon the conclusion reached by him that the widow of the deceased was not entitled to the award because he was a member of a crew of a vessel. The sole point involved here is whether De Wald was such a member.

The act in question is undoubtedly remedial legislation and should, therefore, be liberally construed. Jarka Corporation v. Monahan (C. C. A.) 62 F.(2d) 588; Rothschild & Co., Inc., v. Marshall (C. C. A.) 44 F.(2d) 546.

For certain purposes De Wald comes under the category of a seaman. Ellis v. United States, 206 U. S. 246, 27 S. Ct. 600, 51 L. Ed. 1047, 11 Ann. Cas. 589. But it does not follow that he was a seaman in the true sense of the word, one who engaged in voyages upon a ship or vessel and assisted in the navigation of the vessel and is exposed to the perils of the sea or in other words a seaman in the common acceptance of the meaning of the word.

Since stevedores have been declared, by the Supreme Court, to be seamen under certain conditions, their rights have been transferred to the Longshoremen's Act. As was said in Uravic, Administratrix, v. F. Jarka Co., 282 U. S. 234, 51 S. Ct. 111, 112, 75 L. Ed. 312: "* * * While the section 33 46 USCA § 688 is construed to give the rights of seamen to stevedores, it does not say or mean that stevedores are to be regarded as seamen on the particular vessel upon which for the moment they happen to be at work."

The Longshoremen's and Harbor Workers' Compensation Act "was designed to accomplish the same general purpose as the Workmen's Compensation Laws of the state" and as such is constitutional (Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 288, 76 L. Ed. 598), and, while Congress has not, in the act, definitely classified those persons who are entitled to receive the benefits under it, it is hard to conceive of one who would come more definitely within the meaning of the words "harbor worker" than De Wald. His main duties, as found by the Deputy Commissioner, were the checking and supervising the loading and unloading of cargo from barges and keeping all records with regard to the cargo. Such work as he did in making fast lines at docks or alongside vessels and pumping water out of the barges was incidental to his main employment. He did not live upon the barge but went home every night. The barges were not navigated under their own power but were towed and never left the harbor.

It has been decided that a stevedore, while held a seaman under the Jones Act (41 Stat. 988), was not entitled to maintenance and cure as is one who is a seaman in the common acceptance of the term. Yaconi v. Brady & Gioe, 246 N. Y. 300, 158 N. E. 876; C. Flanagan & Sons, Inc., v. Carken (Tex. Civ. App.) 11 S.W.(2d) 392. In the case of The John B. Lyon (D. C.) 33 F. 184, it was held that an injured barge employee was not entitled to maintenance and cure. The right of maintenance and cure is inherent in the contract of employment of a seaman. Harden v. Gordon, 2 Mason, 541, Fed. Cas. No. 6,047.

After the Supreme Court in the case of International Stevedoring Company v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157, held that the Jones Act (46 USCA § 688) amended and modified the general maritime law and as so amended should apply to stevedores injured upon navigable water, Congress passed the Longshoremen's and Harbor Workers' Compensation Act and must have done so in the light of that decision, and it is our opinion that the act was intended, by Congress, to cover just such an employee...