WM. SPENCER & SON CORPORATION v. Lowe
| Decision Date | 26 December 1945 |
| Docket Number | No. 106.,106. |
| Citation | 152 F.2d 847 |
| Parties | WM. SPENCER & SON CORPORATION v. LOWE et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles Landesman, of New York City, for appellant.
Abraham M. Fisch, of New York City, for claimant-appellee.
John F. X. McGohey, U. S. Atty., of New York City (Thomas G. Donlan, Asst. U. S. Atty., Ward E. Boote, Chief Counsel, and Herbert P. Miller, Asst. Chief Counsel, U. S. Employees' Compensation Commission, all of New York City, of counsel), for Deputy-Commissioner-appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
This appeal presents the question whether the district court was right in affirming the deputy commissioner's decision that the claimant, a lighter captain, was not excluded from the coverage of the Act by section 3(a) (1), 33 U.S.C.A. § 903(a) (1), as "a master or member of a crew of any vessel." So far as the commissioner's decision turns on questions of fact, his finding with respect to coverage, if supported by the evidence, is conclusive on the courts. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 258, 60 S.Ct. 544, 548, 84 L.Ed. 448; see National Labor Relations Board v. Hearst Publications, 322 U. S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170.
The claimant is a lighter captain by occupation and, on June 6, 1944, the date of his injuries, he was in the employ of the plaintiff as captain of its lighter "Boonton" which was afloat in the East River. The plaintiff's business is the lighterage of freight in and about New York Harbor by means of barges, lighters and gasoline hoisters, which are without power of self-propulsion and must be towed from place to place. The lighter "Boonton", described also as a gasoline hoister, is a vessel of the barge type, 120 feet in length and 36½ feet in width, with a freight capacity of about 475 tons. It has a cabin 12 feet by 6, a mast and boom, and a gasoline engine used to load and unload drafts of freight and to pump water from the hold. The claimant was employed at a daily wage for an eight hour day and at an hourly wage for overtime; he had no experience as a seaman and no master's or seaman's papers; was not furnished meals or quarters by his employer, and lived on shore, except on occasions when required to work overtime. His duties consisted of "operating the engine to raise and lower drafts of freight, * * * procuring bills of lading * * * checking each piece of freight as loaded and discharged, directing the stowing of the freight in order that it would be so placed as to facilitate its removal and to insure the vessel riding on even keel, pumping out water from the hold, making minor repairs, throwing lines to the dock when tying up and affixing them to the lighter when casting off from the dock; tightening and loosening the lines from the lighter to the dock as occasion demanded, and watching the cargo when required overnight, for which extra duty" he was paid overtime wages. At the time of his accident he was painting the cabin of the vessel and fell to the floor from the coal-box on which he was standing. The deputy commissioner found the facts as stated above and they are amply supported by the testimony of the claimant, who was the only witness. The appellant's objection is not to the foregoing findings but to the commissioner's conclusion therefrom, namely "that the principal duties of the claimant were similar to those performed by longshoremen, checkers and talleymen in connection with the loading and discharging of cargo * * * and were not principally in connection with the navigation of the vessel * * * and that he was not a master or member of the crew of the lighter `Boonton'" within the meaning of section 3(a) (1) of the Act. The contention is that Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931, requires the opposite conclusion. We think not. There the bargee was employed by the month and provided with quarters on board; "he had no duties in connection with the handling of cargo and no shore duties" (321 U.S. at page 568, 64 S.Ct. at page 749, 88 L.Ed. 931); his duties in connection with navigation were more than pumping out...
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Weiss v. Central Railroad Company of New Jersey
...supra, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Merritt-Chapman & Scott Corp. v. Willard, 2 Cir., 189 F.2d 791; Wm. Spencer & Son Corp. v. Lowe, 2 Cir., 152 F.2d 847, certiorari denied 328 U.S. 837, 66 S.Ct. 1012, 90 L.Ed. 1613; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245. But wh......
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...clearly have different purposes and each statute's protection is to be construed as broadly as possible. See Wm. Spencer & Son Corp. v. Lowe, 152 F.2d 847, 848 (2d Cir.1945), cert. denied, 328 U.S. 837, 66 S.Ct. 1012, 90 L.Ed.2d 1613 (1946) (no decisional conflict where a barge worker was f......