Berwind-White Coal Mining Co. v. Rothensies

• Decision Date: 17 June 1943
• Docket Number: No. 8074.,8074.
• Citation: 137 F.2d 60
• Parties: BERWIND-WHITE COAL MINING CO. v. ROTHENSIES, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Third Circuit

137 F.2d 60 (1943)

BERWIND-WHITE COAL MINING CO. v. ROTHENSIES, Collector of Internal Revenue.

No. 8074.

Circuit Court of Appeals, Third Circuit.

Argued November 20, 1942.

Decided June 17, 1943.

Philip Price, of Philadelphia, Pa. (Charles Myers, Kenneth W. Gemmill, and Barnes, Dechert, Price and Smith, all of Philadelphia, Pa., on the brief), for appellant.

Edward First, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., and Gerald A. Gleeson, U.S. Atty., and Thomas J. Curtin, Asst. U.S. Atty., both of Philadelphia, Pa., on the brief), for appellee.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The plaintiff company sued to recover taxes which it paid for the years 1937, 1938 and 1939 under the Social Security Act¹ with respect to bargemen in its employ. By Sec. 811(b) (5) of the Act "Service performed as an officer or member of the crew of a vessel documented under the laws of the United States * * *" is expressly excepted from the term "employment" as used in the Act to define the relationship for which an excise tax is imposed upon employers by Sec. 804. The plaintiff's right to recover in the instant case depends upon whether its bargemen, on whose account it paid an employer's tax for the years in question, were officers or members of the crews of vessels within the meaning of the exception above mentioned. The court below held that they were not. The trial court found, however, and the evidence supports the finding, that the barges upon which the particular employees served were vessels documented under the laws of the United States. The one question, therefore, presented by this appeal is whether the plaintiff's bargemen were officers or members of crews within the contemplation of the exceptive provision in the Social Security Act.

In Warner Company v. Norton et al., 3 Cir., 137 F.2d 57, decided this day, we held that a bargeman was a seaman and not a harbor worker and therefore not within the scope of the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C.A. § 901 et seq. The duties of the bargemen in this case did not differ in any material respect from those of the bargeman in the Warner Company case, which are fully set forth in the opinion in that case and need not be repeated here. The primary duty of each of such employees was to see to the welfare and operation of his barge.

However, as already stated, the Warner Company case involved the Compensation Act while here we have for construction a similar exceptive clause in the Social Security Act. The language of each statute, regardless of the similarity of both in the particulars noted, is to be read "in the light of the mischief to be corrected and the end to be attained". South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 259, 60 S.Ct. 544, 549, 84 L.Ed. 732, citing Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 79 L.Ed. 254. Our duty, therefore, is to ascertain independently the intended scope of the exceptive clause in the Social Security Act. No decision has been cited, nor have we found any, construing that provision. In the end, the answer to the present problem will necessarily disclose by comparison whether the characteristics of service and duties which distinguish a seaman from a harbor worker, as pointed out in Warner Company v. Norton et al., supra, also appropriately identify the persons whose service Congress intended to except from the employment made taxable by the Social Security Act.

Nothing of relevant significance is to be drawn from the slight difference in the phraseology of the pertinent provisions of the two statutes. The phrase "officer or member of the crew of a vessel" as employed among the exceptions specified in the Social Security Act is no less inclusive than the phrase "master or member of a crew of any vessel" as contained in the Compensation Act. 33 U.S.C.A. § 902(3). If anything, the exception in the Social Security Act would seem to be the more comprehensive for, while a master is ordinarily an officer, manifestly not all officers are masters.

Art. 10 of Regulations 91, promulgated specifically for the enforcement of the Social Security Act, defines "officers and members of the crew" as including "the master or officer in charge of the vessel, however designated, and every individual, subject to his authority, serving on board and contributing in any way to the operation and welfare of the vessel." This administrative interpretation, which we do not think transgresses the legislative intent, in effect imports to the provision in question the inclusion of all persons...