Atlantic Ship Rigging Co. v. McLellan

• Decision Date: 16 June 1960
• Docket Number: Civ. A. No. 54-60.
• Citation: 184 F. Supp. 569
• Parties: ATLANTIC SHIP RIGGING CO., Inc., Employer Plaintiff Appellant and The State Insurance Fund, Insurance Carrier Plaintiff Appellant v. John D. McLELLAN, Jr., Deputy Commissioner for the 2nd Compensation District of the United States Department of Labor, Bureau of Employees' Compensation, and Zurich Insurance Company, Defendants Appellees and John E. Murphy, Employee Defendant Appellee.
• Court: U.S. District Court — District of New Jersey

184 F. Supp. 569

ATLANTIC SHIP RIGGING CO., Inc., Employer Plaintiff Appellant and The State Insurance Fund, Insurance Carrier Plaintiff Appellant v. John D. McLELLAN, Jr., Deputy Commissioner for the 2nd Compensation District of the United States Department of Labor, Bureau of Employees' Compensation, and Zurich Insurance Company, Defendants Appellees and John E. Murphy, Employee Defendant Appellee.

Civ. A. No. 54-60.

United States District Court D. New Jersey.

June 16, 1960.

Francis D. Murphy, West New York, N. J., for plaintiff State Ins. Fund.

Chester A. Weidenburner, Charles H. Hoens, Jr., Newark, N. J., for defendant McLellan, Jr.

MEANEY, District Judge.

This is an action to review a decision of defendant, Deputy Commissioner for the 2nd Compensation District of the United States Department of Labor, Bureau of Employees' Compensation, under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

It is not disputed that defendant Murphy is entitled to compensation. Plaintiff State Insurance Fund, against which the Deputy Commissioner's order for payment of compensation was directed, disputes the propriety of the assessment of compensation against it rather than against defendant Zurich Insurance Company, and with its insured filed the bill of complaint requesting the issuance of a mandatory injunction directing that the award in favor of the employee be charged to and paid by the defendant Zurich Insurance Company, and directing that Zurich Insurance Company reimburse the State Insurance Fund for the amount paid to the employee.

The action was commenced in the United States District Court for the Eastern District of New York and transferred to this court. Actions to review decisions under the Act by way of injunctions, mandatory or otherwise, must be commenced in the District where the injury occurred. 33 U.S.C.A. § 921(b). This is a jurisdictional requirement and does not relate merely to venue. Continental Fire & Casualty Insurance Co. v. O'Leary, 9 Cir., 1956, 236 F.2d 282; Bassett v. Massman Const. Co., 8 Cir., 1941, 120 F.2d 230, certiorari denied 314 U.S. 648, 62 S.Ct. 92, 86 L.Ed. 520; Hughes v. Quigley, D.C.D.N.J., 184 F.Supp. 568.

Defendant Deputy Commissioner is now moving to dismiss the complaint for lack of jurisdiction in this court, claiming that Murphy's injury occurred in New Jersey. If this is so, the action must be dismissed because the United States District Court for the Eastern District of New York, under the above cited cases, did not have jurisdiction of the subject matter and could not effectively transfer the action to this court.

The...