South Chicago Coal & Dock Co. v. Bassett

• Decision Date: 06 June 1939
• Docket Number: No. 6808.,6808.
• Citation: 104 F.2d 522
• Parties: SOUTH CHICAGO COAL & DOCK CO. et al. v. BASSETT, Deputy Com'r of U. S. Employees Compensation Commission.
• Court: U.S. Court of Appeals — Seventh Circuit

104 F.2d 522 (1939)

SOUTH CHICAGO COAL & DOCK CO. et al. v. BASSETT, Deputy Com'r of U. S. Employees Compensation Commission.

No. 6808.

Circuit Court of Appeals, Seventh Circuit.

May 11, 1939.

Rehearing Denied June 6, 1939.

William J. Campbell, U. S. Atty., and David H. Neuman, Asst. U. S. Atty., both of Chicago, Ill. (Z. Lewis Dalby, Chief Counsel, U. S. Employees' Compensation Commission, and Chas. T. Branham, Associate Counsel, U. S. Employees' Compensation Commission, both of Washington, D. C., of counsel), for appellant.

Robert J. Folonie, of Chicago, Ill., for appellees.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

EVANS, Circuit Judge.

This appeal is from an injunction issued by the District Court against the enforcement of a deputy commissioner's award under the Federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., to the widow and infant daughter of deceased, who was drowned, October 31, 1937, in the Calumet River, while working on a fueling boat, the Koal Kraft.

Section 3 of the Longshoremen's Act, 33 U.S.C.A. § 903, excepts from its operation a "member of a crew." The deputy commissioner, after a full hearing, found deceased was not a "member of a crew." On the trial de novo in the District Court, the court found deceased was a member of a crew. The evidence taken at both hearings was similar.

Was the deceased's status as seaman or longshoreman a "jurisdictional, fundamental fact"? If so, then the District Court must pass on the issue, upon evidence adduced before it. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. If it is not fundamental and jurisdictional, the deputy commissioner makes the finding which is conclusive if supported by evidence. Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245.

Section 3, 33 U.S.C.A. § 903, provides:

"(a) Compensation shall be payable under this chapter in respect of * * * death of an employee, but only if the * * death results from an injury occurring upon the navigable waters of the United States * * *. No compensation shall be payable in respect of * * * death of —

"(1) A master or member of a crew * * *.

"(2) * * *

"(b) No compensation shall be payable if the injury was occasioned solely * * by the willful intention of the employee to * * * kill himself * * *."

Section 919 provides for the filing of the claim with the Commissioner who "shall have full power and authority to hear and determine all questions in respect of such claim." Section 920 provides that in "any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter * * *."

The Facts. The vessel, the Koal Kraft, on which deceased was employed, was used solely for fueling other vessels. It operated about eight months a year in the territory of the Calumet River (concededly a navigable water). It supplied coal to other vessels on their order, each operation consuming only a couple of hours. It had no sleeping or eating quarters. Its certificate of inspection required that "Included in the entire crew hereinafter specified and designated there must be 1 licensed master and pilot, 1 licensed chief engineer, 3 seamen, 1 fireman." If deceased were counted as a member of the crew, the full complement of the ship was present. Otherwise not.

Deceased had been in the employ of appellee from October 5th to the 31st, only, a total of 269 hours, at an hourly wage of sixty cents. He was paid semi-monthly — in all $161.40. His chief task was in facilitating the flow of coal from his boat to the vessel being fueled — removing obstructions to the flow with a stick. He performed such additional tasks as throwing the ship's rope in releasing or making the boat fast. He performed no navigation duties. He occasionally did some cleaning of the boat. He did no work while the boat was en route from dock to the vessel to be fueled.

Pertinent excerpts from the record relative to deceased's duties are set forth in the margin.¹

Presented for determination is the line of demarcation between the duties of the deputy commissioner and those of the District Court. The generalization is accepted that the determination of "jurisdictional facts" is reserved to the courts while issues involving "circumstances, nature, extent and consequences of injuries" are for the commissioner. The court's review of the commissioner's action, through an injunction suit, is limited. As to these latter questions, the court is limited to an ascertainment of any supporting evidence, while questions involving "jurisdictional" controversies are determinable by the court in a trial de novo. This differentiation of jurisdiction is derived from our constitutional theory, — the Federal Congress may not impose a liability on an employer except by virtue of the existence and involvement of the two factors — (1) navigable waters, and (2) master and servant relationship. And the determination of the existence of these two jurisdictional prerequisites may not be left to the decision of an administrative tribunal, but must be lodged in a court. Crowell v. Benson, supra. Other issues may, however, be left to administrative determination, and such findings are conclusive if supported by evidence.²

We conclude that the inquiry into the crew-membership status is not jurisdictional in character, and, therefore, is one for the commissioner to determine, and his determination if supported by the evidence may not be disturbed by the District Court.

The following reasons underlie our conclusion:

(1) The Supreme Court has held that two factors are jurisdictional (navigable waters, and employer-employee relation) because without their presence the Federal Government would have no power to act. The naming of the two jurisdictional prerequisites impliedly excludes the existence of others.

(2) Although being a "member of a crew" excepts one from the purview of the coverage section (Section 3, above-quoted) the Supreme Court has held that another exception from coverage, namely, suicide, is not a jurisdictional issue. These two statutory exceptions, namely, a "member of a crew" and a death by suicide, are of identical structure in the statutory setup of this section, and a legal construction given to the latter (suicide) might with plausibility be given to the former. If one is not a jurisdictional question, should we not give a like effect or construction to the other?

(3) The statute should be construed liberally to protect laborers.³

(4) The number of jurisdictional issues should not be increased beyond legal reason because the purpose of the Act was to expedite the hearing of claims and granting of awards and to simplify as greatly as possible the procedure in such matters, so that the needy, the helpless, and the ignorant would receive financial aid promptly.⁴ The Act gives to the commissioner broad powers to accomplish this purpose.

There remains only the review of the deputy commissioner's finding that Schumann was not a member of a crew. The District Court found otherwise on a trial de novo on evidence similar to that heard by the commissioner.

The evidence in our opinion, supports the commissioner's finding.⁵ The following facts are significant:

a) Schumann had no duties pertaining to the navigation of the vessel, except the incidental task of throwing the ship's line. His primary duty was to free the coal if it stuck in the hopper while being discharged into the fueled vessel, while both boats were at rest. He had no duties while the boat was in motion.

b) He was paid an hourly wage. He had no "Articles" (a naval term meaning employment contract) and none were necessary in this kind of work. He slept at home and boarded off ship. He was called very early in the morning each day as he was wanted. While he had worked only three weeks, and it might have been possible that he would have been retained for years to come, his employment was still more akin to temporary employment. The Captain testified that he was under no obligation to give him work each day — no contract of regular employment.

c) While we have given some weight to the fact that the Certificate of Inspection required the craft to have a crew of five in addition to the master, and that in this instance five would be present only if Schumann were included, we are convinced that the word "crew" as used in the certificate has a different significance and connotation than the word "crew" as used in the statutory exception. The Longshoremen's Act contemplated the exclusion of that body of men who in the common parlance make up the ship's complement, — those who regularly or ordinarily are engaged in seafaring and navigation, not those whose tasks are of such a nature that they are independent of navigation in their scope, such as tasks which might as well have their background on shore, or at the dock (such as watchmen, etc.⁶). The task of prodding coal down a runway might just as well have as its background a coal truck, a round house, or a mine, as a steamship. It was an ordinary laborer's job, and it was merely happenstance that the location of this position was on shipboard.

Even though the construction of this statute necessitated a different answer to the jurisdictional question, the result would be the same.

A District Court in reviewing the finding of the deputy commissioner, made in a proper case, is precluded from weighing the evidence. He may only inquire into the existence of any evidence to support a finding that the deceased was not a seaman. In such a case the District Court was required to examine the record and ascertain whether there was any evidence to support the commissioner's finding.

Likewise, on this review, assuming a trial de novo was proper and the seaman status presented a jurisdictional question, we must examine...