Colonna's Shipyard v. Lowe

• Decision Date: 16 November 1927
• Citation: 22 F.2d 843
• Parties: COLONNA'S SHIPYARD, Inc., v. LOWE, Deputy Com'r.
• Court: U.S. District Court — Eastern District of Virginia

22 F.2d 843 (1927)

COLONNA'S SHIPYARD, Inc., v. LOWE, Deputy Com'r.

District Court, E. D. Virginia.

November 16, 1927.

Hughes, Little & Seawell, of Norfolk, Va., for plaintiff.

Kelsey & Jett, of Norfolk, Va., for claimant Brent.

GRONER, District Judge.

This is a bill for an injunction against the federal compensation commissioner of district No. 5. The bill alleges that a certain award made by the commissioner in favor of one Thomas E. Brent, an employee of the plaintiff, under the Longshoremen's and Harbor Workers' Compensation Act, "is not in accordance with the law," and therefore asks, under section 21 of the act (Act March 4, 1927 33 USCA § 921), that an injunction be awarded restraining the carrying out and enforcement of the order.

The injury for which compensation was allowed was sustained while injured, a painter, was at work on a staging erected on the deck of the cradle of a marine railway around the stem of a vessel of 4,000 tons' burden then resting on the railway. The point at which the injury occurred was on dry land, well above the high-water mark of the Elizabeth river. The railway is constructed on a foundation on land and runs down into and under the water on a foundation of piling driven into the soil under the water. It extends out from the land into and under the water about 600 feet. When ready to be hauled, the vessel is floated into a device known as a cradle, attached to and operated on and over the railway, and by which the vessel is held on an even keel. When all of this is accomplished, the cradle and the vessel are drawn up by machinery located on land, out of the water, and onto that portion of the railway wholly on land, so that, when the operation is completed, the cradle and vessel are both on dry land.

Section 3 (a) of the act (33 USCA § 903 a) provides:

"Compensation shall be payable under this act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by state law."

It is obvious that the federal act is applicable only if there may be no recovery for disability or death through a state compensation law, for it says so in precise terms, and the circumstances under which a state compensation law is valid in relation to maritime injuries have been so frequently and recently announced by the Supreme Court that reference to some of the cases is all that is necessary. In the Jensen Case (So. Pac. Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900), recovery under a state compensation law was denied in the case of a stevedore injured on a vessel lying in navigable waters. It was there held that the contract of employment was maritime and the tort maritime, and therefore admiralty alone had jurisdiction; but in Millers' Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, the...