Dixon v. Oosting

• Decision Date: 02 February 1965
• Docket Number: Civ. A. No. 4521.
• Parties: Charlie DIXON, Petitioner, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent, and Liberty Mutual Insurance Company, Intervenor.
• Court: U.S. District Court — Eastern District of Virginia

238 F. Supp. 25

Charlie DIXON, Petitioner, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent, and Liberty Mutual Insurance Company, Intervenor.

Civ. A. No. 4521.

United States District Court E. D. Virginia, Norfolk Division.

February 2, 1965.

Kelsey & Rabinowitz, Norfolk, Va., for petitioner.

C. V. Spratley, Jr., U. S. Atty., W. T. Mason, Jr., Norfolk, Va., for respondent.

L. S. Parsons, Jr., Norfolk, Va., for intervenor.

WALTER E. HOFFMAN, Chief Judge.

Following the entry of an order denying compensation to petitioner under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., for lack of jurisdiction in that petitioner's injury of December 19, 1961, did not occur upon the navigable waters of the United States, petitioner seasonably filed his complaint requesting (1) a trial de novo on the jurisdictional issue, and (2) the suspension and vacation of the alleged erroneous order as entered by the respondent Deputy Commissioner.

There is no factual dispute as to the details of the accident. The Commissioner found:

"* * * that on said day the claimant herein was engaged in the construction of the trestled bridge between Chesapeake Beach and South Island and such bridge was about one-half finished; that on said day he was performing services as a pile driver operator on a cap setting rig which rested on piles or uncompleted trestle at a location in Chesapeake Bay, approximately one and one-half miles from Chesapeake Beach, Virginia, and while so engaged and taking up line on gypsy head, sustained accidental injury resulting in his disability when his left arm became entangled in the line causing amputation of left forearm with dislocation of the ulna at elbow, fracture of right femur, multiple lacerations, contusions and abrasions."

The employment by Tidewater-Raymond-Kiewit, a joint venture, is admitted. The intervenor, Liberty Mutual Insurance Company, was the compensation carrier for the employer. The joint venture was engaged in the construction of a project known as the Chesapeake Bay Bridge-Tunnel which, as now completed, forms a continuous roadway across the Chesapeake Bay connecting the land areas of Chesapeake Beach on the south and the Eastern Shore of Virginia on the North, through the medium of low level bridges and two tunnels between specially constructed islands.

The Industrial Commission of Virginia made an award to petitioner under the Virginia Workmen's Compensation Act. On April 25, 1963, petitioner filed his claim with the Deputy Commissioner under the Longshoremen's and Harbor Workers' Compensation Act. The parties concede that if the injuries are compensable under the federal act, the payments made under the state act should be credited thereon. No question has been raised as to election of remedies. While there was some apparent effort on the part of petitioner's counsel to protect such rights, if any, as petitioner may have had under the Jones Act, it is obvious that the cap setting rig could not be considered a vessel or the petitioner a seaman.¹

The cap setting rig upon which petitioner was serving as a crane operator is a unique, specially constructed piece of equipment used for the purpose of capping piles and pouring concrete therein. It is moved along the tops of previously driven piles well ahead of the completed or partially completed trestle. The equipment is commonly called the "monster" or "two-headed monster." In order to reach the "monster" for the purpose of working thereon it is necessary to take a boat or launch. There is no physical connection with the land or partially completed trestle which would enable one to walk or ride upon a roadway to the site of the "monster". Petitioner's employer furnished water transportation to the work area on the day in question.

The Deputy Commissioner, based upon these facts, merely held that the injury sustained "did not occur upon the navigable waters of the United States." He did not discuss the reasons for his decision or any law applicable thereto.²

Faced with a presumption of correctness as to the findings and conclusions of the Deputy Commissioner, petitioner seeks a trial de novo on the jurisdictional facts. He concedes that all facts are stated in record without dispute. With candor, petitioner's counsel states that the sole purpose of seeking a trial de novo on the jurisdictional facts is to avoid the legal effect of the Deputy Commissioner's findings. No new evidence would be presented in any trial before the district court.

Petitioner relies upon Crowell v. Benson, (1922) 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, and urges that the trial de novo is mandatory. Disagreeing with petitioner, we hold that a trial de novo on "jurisdictional" issues is a matter of discretion.

While Crowell v. Benson has not been expressly overruled, it has been the subject of considerable comment and criticism. In 1948 the Seventh Circuit held, in relying upon Crowell, that the trial de novo was mandatory. Pittsburgh S.S. Co. v. Brown, 7 Cir., 171 F.2d 175. The same problem arose earlier in the Seventh Circuit in South Chicago Coal & Dock Co. v. Bassett, 7 Cir., 104 F.2d 522, aff'd. 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732, but in the affirmance no mention was made of Crowell v. Benson and the issue discussed by the Supreme Court was confined to the matter of exclusion from coverage under the Longshoremen's Act for "a member of the crew."

In Gilmore & Black, The Law of Admiralty, pp. 341, 342, the clear indication is that while Crowell v. Benson has never been overruled, the Supreme Court has declined to apply the jurisdictional fact theory to new situations which on any analysis would appear to be within its scope. And, as demonstrated by the authors of that text, wherever the "discretionary trial de novo idea" has been advanced, such a trial has been refused.

The Ninth Circuit has had occasion to consider the effect of Crowell in Western Boat Bldg. Co. v. O'Leary, 9 Cir., 198 F. 2d 409, where it is said:

"We do not understand Crowell v. Benson to afford a trial de novo as a matter of right under circumstances where there is no issue of fact presented. See Luckenbach S.S. Co., Inc., v. Lowe, D.C.1951, 96 F.Supp. 918, 919. If however, the true rule is contrary to our impression, we simply refuse to invoke it where (as here) no worthwhile purpose would be served thereby. To do so would be to adhere to the superfluous and breed procrastination. Cf. Mr. Justice Frankfurter's concurring opinion in Estep v. United States, 327 U.S. 114, 142, 66 S.Ct. 423, 90 L.Ed. 567."

The Ninth Circuit has consistently followed the rule in the Western Boat case. Morrison-Knudsen Company v. O'Leary, 9 Cir., 288 F.2d 542, cert. den. 368 U.S. 817, 82 S.Ct. 33, 7 L.Ed.2d 24. Actually, the extent of Crowell v. Benson is probably limited to the statement of Chief Justice Hughes that the district court "did not err in permitting a trial de novo on...