Branham v. Terminal Shipping Co.

• Decision Date: 29 May 1943
• Docket Number: No. 5076.,5076.
• Citation: 136 F.2d 655
• Parties: BRANHAM, Deputy Commissioner of U. S. Employees' Compensation Commission for the Fourth District, v. TERMINAL SHIPPING CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

136 F.2d 655 (1943)

BRANHAM, Deputy Commissioner of U. S. Employees' Compensation Commission for the Fourth District, v. TERMINAL SHIPPING CO. et al.

No. 5076.

Circuit Court of Appeals, Fourth Circuit.

May 29, 1943.

Ward E. Boote, Chief Counsel, U. S. Employees' Compensation Commission, of Washington, D. C. (Bernard J. Flynn, U. S. Atty. and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md., and Herbert P. Miller, Associate Counsel, U.S. Employees' Compensation Commission, of Washington, D. C., on the brief), for appellant.

W. Hamilton Whiteford and Palmer R. Nickerson, both of Baltimore, Md. (Due, Nickerson & Whiteford, of Baltimore, Md., on the brief), for appellees.

Before PARKER, SOPER and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a proceeding brought in the District Court of the United States for the District of Maryland, by the appellees, Terminal Shipping Company, employer, and Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Company, insurance carrier, asking for a judicial review of a compensation order filed on July 20, 1942, by the deputy commissioner, appellant herein, in which he directed the employer and insurance carrier to pay to the Treasurer of the United States the sum of $1,000 pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S. C.A. § 901 et seq.

After a hearing the court below filed an opinion finding against the appellant and on November 27, 1942, entered a decree setting aside the compensation order. From this action this appeal was brought.

There is no dispute as to the facts, which were stipulated. As stated by the judge below in his opinion 47 F.Supp. 561, 563 they are as follows: "On June 11, 1940, James A. Thompson, while engaged in the performance of his duties as a stevedore for the Terminal Shipping Company (a stevedoring corporation) sustained fatal injuries on board the Brazilian Steamship `Camamu' while lying in navigable waters at Baltimore. While working between decks, he was walking across the hatch when the boards fell from under him precipitating him into the lower hold of the vessel. From his injury he died the same day. He was survived by his mother who claimed to be dependent on him. No other next of kin made any claim. When notified of the mother's claim, the deputy commissioner apparently treated the mother as prima facie entitled to some compensation and this was not controverted by the employer, or its insurance carrier. On July 10, 1940 the mother, Sadie Thompson, filed notice with the deputy commissioner of her election under 33 U.S.C.A. § 933 `to pursue my remedy against a third party, to wit, the owner and operator of the Steamship "Camamu" but make claim for compensation for any deficiency between the amount so recovered and the amount provided by the said Act.' On July 13, 1940 the deputy commissioner advised counsel for the employer's insurance carrier (Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company) that the claimant had made this election, and in view of that `no further action will be taken by this office until the outcome of the third party action has been concluded.' Subsequently the mother as administratrix and individually, in due time sued the shipowner for damages in the United States District Court for the Southern District of New York, and on or about April 14, 1942 the suit was compromised and settled, without the written approval of the employer or its insurance carrier, by the payment of $8,500 to Sadie Thompson for the death of her son. As this recovery was in excess of the maximum compensation under the Act, the mother made no further claim to compensation. Thereafter, the employer, its insurance carrier and the deputy commissioner entered into a stipulation containing the above recited facts on which the deputy commissioner made a determination that there was no person entitled to compensation under the Longshoremen's & Harbor Workers Act for the death of the employee, and thereupon made an award and order for the payment by the employer or its carrier of $1,000 under section 944(c), 33 U.S.C.A. In due course the employer and its insurance carrier have filed this petition for review under section 921 (b), 33 U.S.C.A. which provides that the deputy commissioner's order may be set aside `if not in accordance with law'."

The statutes under which the appellant made his order are:

Section 33(a) of the Compensation Law which provides: "If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice, to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person."

Section 44(a), (c) (1) of the compensation law provides as follows:

"Sec. 44. (a) There is hereby established in the Treasury of the United States a special fund for the purpose of making payments in accordance with the provisions of subsections (f) and (g) of section 8 of this Act. Such fund shall be administered by the commission. The Treasurer of the United States shall be the custodian of such fund, and all moneys and securities in such fund shall be held in trust by such Treasurer and shall not be money or property of the United States."

* * * * *

"(c) Payments into such fund shall be made as follows:

"(1) Each employer shall pay $1,000 as compensation for the death of an employee of such employer resulting from injury where the deputy commissioner determines that there is no person entitled under this Act to compensation for such death. Fifty per centum of each such payment shall be available for the payments under subdivision (f) of section 8 and 50 per centum shall be available for payments under subdivision (g) of section 8."

The court below held, that to properly construe these statutes, section 933(c) must be considered. Section 933(c) is as follows: "(c) The payment of such compensation into the fund established in section 944 of this chapter shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as `representative') to recover damages against such third person, whether or not the representative has notified the deputy commissioner of his election."

It is contended on behalf of the appellant that the Longshoremen's Act was adopted from the New York Workmen's Compensation Law, Consol. Laws, c. 67, and that the New York decisions "are uniform in holding that the right to compensation is not a vested right accruing to dependents by reason of the death of the employee, but a right which may be established only by the means provided for by law. Wozneak v. Buffalo Gas Company, 175 App.Div. 268, 161 N.Y.S. 675; Casmey v. Parks' Sons, 229 N.Y. 623, 129 N.E. 933; Terry v. General Electric Company, 232 N.Y. 120, 133 N.E. 373."

It is further contended on behalf of the appellant that in construing the Longshoremen's Act the courts should follow the New York decisions citing: Employers' Liability Assurance Corporation v. Monahan, Deputy Commissioner, 1 Cir., 91 F.2d 130; Bethlehem Shipbuilding Corporation v. Monahan, Deputy Commissioner, 1 Cir., 54 F.2d 349; Luckenbach Steamship Co. v. Marshall, Deputy Commissioner, D.C., 49 F.2d 625; Mahony Co. v. Marshall, Deputy Commissioner, D.C., 46 F.2d 539; Hartford Accident & Indemnity Co. v. Hoage, Deputy Commissioner, 66 App. D. C., 154, 85 F.2d 411.

It is contended on behalf of the appellee that the Longshoremen's Act is materially different from the New York Compensation Law in the wording of Sec. 933(c) of the federal act and that this difference requires another construction of the Act from that given the New York law by the New York courts.

It is further contended on behalf of the appellees that, at the inception of the case, both the appellant and the appellees treated the mother as a dependent, entitled to compensation, and that the fact that she elected to pursue her remedy against a third party in no way changed her status as a claimant and the fact that she was allowed to make an election proved her status as a claimant entitled to compensation.

In a forceful and detailed discussion of the law involved the court below reached the conclusion that the contentions of the appellees were right and approved the reasoning of the Circuit Court of Appeals for the Second Circuit in the case of Federal Mutual Liability Insurance Company v. Locke, 60 F.2d 895, 896, where the court said: "* * * Yet it seems clear that the words of section 44(c) (1) requiring the payment of $1,000 into the special fund where the deputy commissioner determines `that there is no person entitled * * * to compensation' for the death of the employee relate only to cases where there is no such person when death occurs and when `questions of dependency' are determined under section 9(f) of the act (33 U.S.C.A. § 909(f)."

We are of the opinion that the reasoning and conclusion of the judge below are correct.

The disputed phrase "where the deputy commissioner determines that there is no person entitled under this chapter to compensation for such death" standing alone is ambiguous with respect to the time as of which the determination is to be made, that is, as of the time of the death of the employee or at the time when the deputy commissioner makes his determination.

In discussing this point the court below said:

"In considering what is the proper construction there must be kept in mind some of the history of compensation acts and the legal and social philosophy which underlies them and also the general scope and procedural provisions of the Longshoremen's Act. It is well known that the Longshoremen's Act of 1927 was patterned largely upon the New York Workmen's Compensation Law, Laws 1913, c....