Merchants & Miners Transp. Co. v. Norton

• Decision Date: 10 May 1929
• Docket Number: No. 4803.,4803.
• Citation: Merchants & Miners Transp. Co. v. Norton, 32 F.2d 513 (W.D. Pa. 1929)
• Parties: MERCHANTS' & MINERS' TRANSP. CO. v. NORTON et al.
• Court: U.S. District Court — Western District of Pennsylvania

32 F.2d 513 (1929)

MERCHANTS' & MINERS' TRANSP. CO. v.NORTON et al.

No. 4803.

District Court, E. D. Pennsylvania.

April 16, 1929.

On Motion for Reargument, May 10, 1929.

L. C. Krusen, of Philadelphia, Pa., for plaintiff.

Swartz & Campbell, of Philadelphia, Pa., for defendant Zachariasen.

G. W. Coles, U. S. Atty., of Philadelphia, Pa., for defendant Norton.

DICKINSON, District Judge.

There are several of these cases.The features which are in common may be discussed in one opinion.

The Zachariasen Case.

Fact Findings.

Vigo A. Zachariasen was in the employ of the complainant on an hour compensation basis.He was by trade a machinist, but his work was amphibious, and performed when and where on land or sea as directed.He lost his life August 13, 1928, by drowning when in the performance of the duties of his employment.He had been directed to go aboard the steamship Tuscan to repair a dynamo.The ship was in dock, moored to a pier.He had occasion in the course of his employment to go from the ship to the pier.The distance from ship to pier was about three feet.Access from pier to ship was provided by a ladder.The ship end of the ladder was at the time the higher.The descent was in consequence made by a backward, downward movement on the ladder.As he was getting off the last rung, the ladder tilted or was in some way displaced, so that he was precipitated into the water and was drowned.

On October 18, 1928, a petition was filed by the widow, claimant, for compensation for decedent's death under the Longshoremen's and Harbor Workers' Act(33 USCA §§ 901-950), to which the present plaintiff made answer, raising, inter alia, the question of the jurisdiction of the United States Employees' Compensation Commission.The defendant, deputy commissioner, heard the parties, and following this filed a compensation order.The plaintiff, under the procedure outlined in the act of Congress, has filed this bill, praying that the enforcement of the above order be restrained.

The pertinent act of Congress was approved March 4, 1927.This calls for an analysis of it.Approaching the subject from the point of view of the old law, the mischief, and the remedy, we have the thoughts (1) that compensation for injury or death could before the act be recovered on the basis of the doctrine of negligence; (2) that in maritime employments an injured seaman had the right to maintenance and cure; (3) that in admiralty redress could be afforded only in matters maritime; and (4) that the general law maritime is beyond the control of the state law.

The evils thought to exist were that under some state laws there came to be afforded compensation to workmen employees not based upon the doctrine of negligence, but that of a loss sustained.This, however, did not extend to those in purely maritime employments, thereby creating an inequality.It was thought that the benefits of such compensation should be extended to maritime employments.In other states no such indemnity legislation existed, and there were employments so amphibious in character that a question arose of whether at a particular time the work being done, although maritime, was so far local as that the state law would apply.The remedy was dictated by the thought that, if the state law indemnified the workman for injuries, no added legislation was needed; but, if compensation was not given by the state law, it should be given by act of Congress.Ignoring impertinent features, the act of Congress provided for indemnity compensation to workmen who suffered injury upon the navigable waters of the United States, including dry docks, but the operation of the act is halted in any given case "if recovery for the disability or death through workmen's compensation proceedings" is "validly provided by state law."

The right of recovery in the instant case is thus dependent upon three findings (ignoring features not in controversy): (1) The affirmative one that the death resulted from an occurrence "upon navigable waters"; (2) the negative one that the laws of Pennsylvania do not "validly provide" for workmen's compensation of which the claimant might avail herself; and (3) that the claimant before the commissioner is the rightful claimant.The commissioner has made all of these findings in favor of the claimant by making an order in her favor.

Discussion.

The findings of the commissioner necessarily mean that the decedent had not left the ship, in the sense of having reached the land, when he met his death, and that his employment was on shipboard, and that the claimant is his widow and the proper beneficiary of the order of compensation.This act of Congress gives what may be called a new right of action, in the sense that it makes a cause of action of what before the act would not have so been.Broadly stated, it extends to those in maritime employments the benefit of the so-called employees' compensation doctrine under which the receipt of compensation is based upon the fact of employment and the fact of injury.All laws which apply this doctrine call for the creation of machinery which grinds out in the first instance the facts upon which the right to compensation depends.

The appellate revision by the courts is restricted to the question of whether the order has been made "in accordance with law."The facts must thus be assumed to be as found.This reduces the controversy presented to one of whether the benefits of a like law have been, "validly provided by a state law."Broadly stated, they have.This further reduces the question to one of the conflict of the state law with that of the law maritime.The test of this is in the application of two propositions: (1) That the law maritime must be preserved in its integrity, unaffected by state legislation; but that (2) a state law, relating to the subject of the relations and liabilities of employers and employees, which is of local application only, and which does not affect the general law maritime, may operate with it.

The final question thus becomes whether the Pennsylvania statute has this local characteristic in employments such as that of the decedent.When it is recalled that one of the statutes to be construed is a statute of the United States, and the other a statute of Pennsylvania, and that the test of a cause maritime, with which the law of the United States concerns itself, is that the injured workman was on, and had not left, the ship, and that his location at any time is a matter with which ordinarily the law of the state does not concern itself, it is not surprising that the judgments of the courts of the two jurisdictions may differ in cases presenting the same state of facts.The meaning of the state law must be taken to be what the state courts have declared it to be.The courts of...