BULL INSULAR LINE v. Schwartz

• Decision Date: 16 May 1938
• Docket Number: No. 8477.,8477.
• Citation: BULL INSULAR LINE v. Schwartz, 23 F.Supp. 359 (E.D. N.Y. 1938)
• Parties: BULL INSULAR LINE, Inc., et al. v. SCHWARTZ, Deputy Com'r, et al.
• Court: U.S. District Court — Eastern District of New York

23 F. Supp. 359

BULL INSULAR LINE, Inc., et al. v.SCHWARTZ, DeputyCom'r, et al.

No. 8477.

District Court, E. D. New York.

May 16, 1938.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City(Robert P. Nash, of New York City, of counsel), for plaintiffs.

Hardin, Hess & Eder, of New York City(Monroe Collenburg and Benjamin D. Fidanque, Jr., both of New York City, of counsel), for defendant Vascone.

Michael F. Walsh, U. S. Atty., of Brooklyn, N. Y. (Clarence Wilson, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for defendant Schwartz.

GALSTON, District Judge.

This suit, brought pursuant to Longshoremen's and Harbor Workers' Compensation Act,§ 21(b),33 U.S.Code, § 921(b),33 U.S.C.A. § 921(b) seeks to enjoin the defendants from enforcing an award made by the Deputy Commissioner of the United States Employees' Compensation Commission and to set aside the award on the ground that the injury to Francesco Vascone, resulting in his death, was not sustained in nor did it arise out of the course of his employment.

The complaint alleges that on December 31, 1936 Vascone sustained injuries while employed by the plaintiff and while working on board the steamship "Manuela", lying at or near Pier 22, Brooklyn, and that he died as a result of the injuries so received; that thereafter the defendant, Concetta Guido Vascone, mother of Francesco Vascone, filed a claim for death benefits under provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U. S.C.A. § 901 et seq.; and that the plaintiffs controverted the payment of compensation on the ground that no injury or death as defined in such act was sustained by Vascone.

The Commissioner found that the deceased, on December 31, 1936, was in the employ of the Bull Insular Line, Inc.; that the liability of the employer for compensation under the act was insured by the codefendant, the American Steamship Owners Mutual P. and I.Association; that he was working as a longshoreman engaged in the loading of cargo on the steamship "Manuela" as a member of a gang of employees; that his duties consisted of slinging and hooking on drafts of cargo that were being hoisted from the dock to the ship and in assisting truckmen in pushing loaded hand trucks from the dock to and on the gang-plank of the ship; that at times he also assisted in pushing loaded hand trucks from the gang-plank into the ship; that at about two o'clock the entire gang of employees, including the deceased, was working at No. 5 hatch and that at that time some of the men comprising the gang went to work on the deck of the vessel while the deceased remained on the dock, waiting for his work to be resumed; that it was raining and that on rainy days it was customary for dock men, standing at or near the edge of the dock, to stand on bags of sawdust or on dunnage boards, to prevent their feet from getting wet; the dunnage boards were sometimes available on the dock and sometimes on the ship; that on other similar occasions dock men working for the said employer went aboard the ship in rainy weather to obtain dunnage boards; that the deceased went into No. 5 hatch 'tween deck of said vessel to obtain dunnage board on which to stand in the course of his employment on the dock; that the hatch covers of No. 5 'tween deck had been removed, in consequence of which the deceased fell into the hold of the vessel and from his injuries death resulted.From the foregoing facts and others recited more fully in the compensation order, the Deputy Commissioner made award to the defendant, Concetta Vascone, of $405 and bi-weekly instalments at $6.75 per week, from March 1, 1938; and to a brother, Carmello Vascone, $200 as reimbursement of funeral expenses.

It is contended by the plaintiffs that Vascone's death was not caused by an injury which he sustained in the course of his employment because, as the plaintiffs claim, Vascone's orders forbade him from going on the ship.The asserted reason for the rule is that the hazards of the ship are greater than those on the dock.So it is urged that in going on board Vascone left the sphere and took himself out of the plaintiff's employ.Reliance is had upon some New York cases arising under the New York Compensation Law, and particularly a case of Hyatt v. United States Rubber Reclaiming Co., Inc., 230 App.Div. 743, 243 N.Y.S. 474, andErdberg v. United Textile Print Works, 216 App.Div. 574, 216 N. Y.S. 275.In the former case it appeared that the claimant, though acting in the interest...