Avondale Marine Ways v. Henderson

Decision Date29 January 1953
Docket NumberNo. 14055 and 14056.,14055 and 14056.
Citation201 F.2d 437
PartiesAVONDALE MARINE WAYS, Inc. v. HENDERSON et al. (two cases).
CourtU.S. Court of Appeals — Fifth Circuit

John W. Sims and Ashton Phelps, New Orleans, La., Frank A. Bull, New York City, Mendes & Mount, New York City, Phelps, Dunbar, Marks & Claverie, New Orleans, La., for appellant.

Herbert P. Miller, Dept. of Labor, Washington, D. C., G. Harrison Scott, Asst. U. S. Atty., New Orleans, La., John N. McKay, U. S. Atty., New Orleans, La., (William S. Tyson, Solicitor of Labor, Ward E. Boote, Assistant Solicitor and James E. Hughes, U. S. Dept. of Labor, Washington, D. C., of counsel), for appellee.

Before HUTCHESON, Chief Judge, and STRUM and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Filed under the provisions of the Longshoremen's Act of March 4, 1927,1 these suits were brought to enjoin and set aside as not in accordance with law, compensation orders issued by the deputy commissioner in favor of the dependents of two of appellant's employees who had been killed in an explosion2 on a barge upon which they were working.

The claim of appellant was that the place where, and the circumstances under which, the injuries occurred are such that the Louisiana State Compensation Act, LSA-R.S. 23:1021 et seq., furnished the exclusive remedy; that the Longshoremen's and Harbor Workers' Compensation Act was therefore inapplicable; and that the deputy commissioner was without jurisdiction or authority to make an award. In short, its position was that the language, "navigable waters of the United States, including any dry dock", as those words are used in Section 3(a) of the Act, 33 U.S.C.A. § 903(a) does not extend to and include the marine railway.

The commissioner, as vigorously contending that a marine railway is a dry dock within the meaning of the Act, filed a motion for summary judgment.

The district judge, on the authority of two cases decided by this court, Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, and Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, granted the motion and entered judgments dismissing the suits with costs.

Here seeking their reversal, appellant concedes that the decisions of this court, on which the district judge, relies, do support the judgments. It insists, however, that these cases were wrongly decided; that they have been in effect overruled by later decisions of the Supreme Court; and that this court should now disavow them.

We cannot agree with these views. Quite to the contrary, we are of the clear opinion that the cases were when decided well decided; that no case since decided furnishes any sound basis for a different view; and that many cases which have been decided since3 have given the questioned decisions full support and approval.

The judgments appealed from were rightly entered. They are affirmed.

RIVES, Circuit Judge, dissenting.

This accident occurred over dry land some four hundred feet from the water's edge. That part of the marine railway on which the ship rested differed from a dry dock in the respect upon which the Longshoremen's Act turns in that it was not in or over navigable waters. The Jones Act is amphibious. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42, 63 S.Ct. 488, 87 L.Ed. 596. The Longshoremen's Act, on the other hand, is restricted to compensation for injuries occurring on navigable waters. Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. We have here the reverse of the situation presented in Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754, and Pennsylvania R. Co. v. O'Rourke, U.S., 73 S.Ct. 302, 305, in which it was held that the extension of a railroad on to a boat in navigable waters did not carry with it the Federal Employer's Liability Act. Here it seems to me that the extension of the marine...

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16 cases
  • Flowers v. Travelers Insurance Company, 16654.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 15, 1958
    ......Avondale Marine Ways, Inc., v. Henderson, 5 Cir., 201 F.2d ......
  • Travelers Insurance Company v. Calbeck, 18802.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 13, 1961
    ...1939 A.M.C. 129; Massachusetts Bonding & Ins. Co. v. Lawson, 5 Cir., 1945, 149 F.2d 853, 1945 A.M.C. 878; Avondale Marine Ways v. Henderson, 5 Cir., 1953, 201 F.2d 437, 1953 A.M.C. 432, affirmed 346 U.S. 366, 74 S. Ct. 100, 98 L.Ed. 77, 1953 A.M.C. 1990. Also from other Circuits, United Sta......
  • Delome v. Union Barge Line Company, 31037.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 19, 1971
    ...as drydocks. Holland v. Harrison Brothers Dry Dock & Repair Yard, Inc., 5 Cir. 1962, 306 F.2d 369, 372-373; Avondale Marine Ways, Inc. v. Henderson, 5 Cir. 1953, 201 F.2d 437, 438, aff'd, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77; Continental Casualty Co. v. Lawson, 5 Cir. 1933, 64 F.2d 802, ......
  • Southport Transit Company v. Avondale Marine Ways, 15843.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 7, 1956
    ...5 Cir., 64 F.2d 802, 1933 AMC 794; Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, 1939 AMC 129; Avondale Marine Ways v. Henderson, 5 Cir., 201 F.2d 437, 1953 AMC 432, affirmed per curiam 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, 1953 AMC 1990, is of no significance in the face of a t......
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