Daffin v. Pape

• Decision Date: 12 November 1948
• Docket Number: No. 12325.,12325.
• Citation: 170 F.2d 622
• Parties: DAFFIN et al. v. PAPE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

170 F.2d 622 (1948)

DAFFIN et al. v. PAPE et al.

No. 12325.

United States Court of Appeals Fifth Circuit.

November 12, 1948.

William G. Caffey, of Mobile, Ala., for appellants.

T. E. Twitty, Richard H. Inge and John H. Tappan, all of Mobile, Ala., for appellees.

Before McCORD and LEE, Circuit Judges, and MIZE, District Judge.

LEE, Circuit Judge.

The widow and children of Rufus Daffin filed a claim for compensation under provisions of the Longshoremen's and Harbor Wrokers' Compensation Act, 33 U.S.C.A. § 901 et seq., after Daffin died of burns received from an explosion aboard W. O. Pape's yacht Vigilant, where he was working. The deputy commissioner awarded compensation. Pape and his insurance carriers filed a libel in the district court, praying that the order be set aside and its enforcement enjoined. After a hearing, the court below entered a decree enjoining the enforcement of the award. This appeal followed.

Daffin, at the time of his injury and death, was, and for some time prior thereto had been, in the employ of W. O. Pape; he was carried on the payroll of a radio station owned and operated by Pape. The Vigilant was used primarily in connection with the station for entertaining advertisers and prospective advertisers and generally building good will for the broadcasting business. Daffin served as handyman and porter around Pape's office and at his home. Though he was not listed as crew, yet he devoted a large portion of his time — according to Pape at least 50%, according to the yacht captain at least 90% — to the yacht, painting, cleaning, storing supplies, and preparing the yacht for sea service when it was in port. When it sailed, which was two or three times weekly, he was carried along; he served drinks to guests, aided in cooking and general work, and relieved the captain at the helm.

The deputy commissioner determined that Daffin was a porter and handyman, and that his duties aboard the yacht were incidental to his employment; hence that he was eligible for benefits under the Longshoremen's and Harbor Workers' Compensation Act. The district court, disagreeing with this determination, held Daffin a seaman, a member of the yacht's crew, and, as such, excluded from the coverage of the act. The basic question presented on this appeal is whether the district court committed error in upsetting the compensation award.

The appellants contend that the deputy commissioner's finding that Daffin was an employee within the scope of the act was a determination of a question of fact and that, since under the act authority for such a determination is vested solely in the deputy commissioner, his action was binding upon the district court. Appellees, on the contrary, urge that the award stemmed from a determination of a question of law and that it was, therefore, properly subject to the district court's power of review. Appellants rely mainly on South Chicago Coal & Dock Co. et al. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; appellees, on Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 749, 88 L.Ed. 931. In the latter case, after pointing out that § 19(a) of the act gives the deputy commissioner "full power and authority to hear and determine all questions in respect of" claims for compensation and that § 21(b) gives the federal district courts power to suspend or set aside in whole or in part the compensation awards "not in accordance with law", the court, referring to the Bassett case, said: "In considering those provisions of the Act in the Bassett case we held that the District Court was not warranted in setting aside such an order because the court would weigh or appraise the evidence differently. The duty of the District Court, we said, was to give the award effect, `if there was evidence to support it.' 309 U.S. at page 258, 60 S.Ct. at page 548, 84 L.Ed. 732. And we stated that the findings of the Deputy Commissioner were conclusive even though the evidence permitted conflicting inferences. Id., 309 U.S. at page 260, 60 S.Ct. at page 549. * * * Thus it is that the judicial review conferred by § 21(b) does not give authority to the courts to set aside awards because they are deemed to be against the weight of the evidence. More is required. The error must be one of law, such as the misconstruction of a term of the Act."

The court then concluded that, where the facts as to the duties performed and services rendered are not in dispute and lead unerringly to the view that the injured employee was a member of the crew of the vessel and not a longshoreman as construed by the deputy commissioner, the error was one of law, a misconstruction of a term of the act. In reaching this conclusion, the court referred to the importance of the exclusion, under the act, of the master and members of a crew of a vessel, pointing out that the liability of the employer, as fixed in the act, is singular and specific, and those who are not covered by the act, master and crew, but who are protected by maritime law, enjoy many broader and more liberal benefits. These, the court said, "are basic rights," and "where Congress has provided that those basic rights shall not be withheld from a class or classes of maritime employees it is our duty on judicial review to respect the command and not permit the exemption to be narrowed whether by administrative construction or otherwise."

We think it clear from the Warner Co. case that, since the facts having to do with the services Daffin was performing on the yacht at the time of injury are undisputed, the question whether he was a member of the crew, excluded by the act, or an employee, within the act, is a question of law, reviewable by the court. The following facts and factual findings appear in the deputy commissioner's report as amplified by the evidence: Daffin sailed with the yacht on every trip; he performed duties essential to the purpose and success of the voyage; and, between trips, while the yacht was in port, he labored to prepare her for the next voyage. For several days prior to the accident, he had worked to put the yacht in readiness for a trip which was to have started the day after the accident. A few minutes before the accident, he had been checking the engines and filling the gas tanks. The electric power plant was running, and he went into the motor room to cut it off. He pulled the switch, and there was an explosion. From the burns he received, he died. The yacht, at the time, was in port, yet it nevertheless must be considered to have been in navigation, for it remained in readiness for another voyage. Carumbo v. Cape Cod S. S. Co., 1 Cir., 123 F.2d 991.

The statement of Judge Swan, speaking for the second Circuit Court of Appeals, in Long Island R. Co. v. Lowe, 145 F.2d 516, at page 518, is pertinent to appellants' contention here. He said: "The appellants, however, urge that the character of his employment cannot be properly determined unless his work during the entire period of his employment be taken into consideration, and that it was on this basis the Deputy Commissioner reached his conclusion that the decedent was a longshoreman rather than a member of the crew. In this we think error in a matter of law was committed. The employee's duties on the day of the accident are the critical facts which should determine his status as a member of the tug's crew. It is true that if he had been called aboard for a single act of service, he might not become a member of the crew. But on the days when his employer assigned him to serve as `mate' of the vessel, we hold that he was a crew member, although he might cease to be one on days when he was assigned for other duties." See to the same effect Maryland Casualty Co. v. Lawson, 5 Cir., 94 F.2d 190; Osland v. Star Fish & Oyster Co., 5 Cir., 107 F.2d 113.

Daffin was on board the yacht to aid in her navigation; his labors contributed to the accomplishment of the main objectives toward which the vessel was engaged. That he had not signed articles and did not eat and sleep aboard the vessel when it was in port, was of no consequence.¹

The duties Daffin was performing when he was injured² were duties ordinarily performed by a member of the crew, and we think, as did the judge below, that he must be considered, in law, to have been a member of the Vigilant's crew.

The judgment appealed from is affirmed.

McCORD, Circuit Judge (dissenting).

I believe my learned brothers have erred in holding, as a matter of law, that the deceased Daffin was a member of...