East v. Oosting, Civ. A. No. 4798
Court | United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia) |
Writing for the Court | John W. Winston, Norfolk, Va., for U. S. Lines Co. and Travelers Ins. Co |
Citation | 245 F. Supp. 51 |
Parties | John W. EAST, Petitioner, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent, United States Lines Company and The Travelers Insurance Company, Intervenors. Albert AVERY, Petitioner, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent, Liberty Mutual Insurance Company, Intervenor. |
Decision Date | 10 September 1965 |
Docket Number | 4976.,Civ. A. No. 4798 |
245 F. Supp. 51
John W. EAST, Petitioner,
v.
Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent,
United States Lines Company and The Travelers Insurance Company, Intervenors.
Albert AVERY, Petitioner,
v.
Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Respondent,
Liberty Mutual Insurance Company, Intervenor.
Civ. A. Nos. 4798, 4976.
United States District Court E. D. Virginia, Norfolk Division.
September 10, 1965.
Kelsey & Rabinowitz, Norfolk, Va., for both petitioners.
C. V. Spratley, Jr., U. S. Atty., W. T. Mason, Jr., Asst. U. S. Atty., and U. S. Dept. of Justice, Leavenworth Colby, Sp. Asst. U. S. Atty., for respondent Deputy Commissioner.
John W. Winston, Norfolk, Va., for U. S. Lines Co. and Travelers Ins. Co.
William B. Eley, Norfolk, Va., for Liberty Mut. Ins. Co.
WALTER E. HOFFMAN, Chief Judge.
In substantially identical actions each of petitioners seeks a trial de novo on the jurisdictional issue, and further requests the entry of an order setting aside the findings of the respondent Deputy Commissioner, which were to the effect that the injury in each case did not occur upon the navigable waters of the United States within the meaning of the Longshoremen's and Harbor Workers' Compensation Act.
The two cases have not been consolidated for trial or hearing, but the governing principles in each case are essentially the same and are the subject of this joint memorandum for the convenience of the Court. However, separate orders should be entered and, if appeals are noted, separate notices of appeal should be filed.
In East, the petitioner was an employee of the United States Lines Company on June 17, 1963. The employer was engaged in maritime employment on the navigable waters of the United States and, at the time in question, had a verbal agreement with Whitehall Terminal Corporation, a stevedoring concern, to discharge cargo from the S.S. AMERICAN PRESS which was moored on the north side of Pier No. 2, Army Base; the pier being owned by the Department of Commerce, Maritime Commission, but the north side being leased to Whitehall Terminal Corporation. The pier is 334 feet wide and projects out over the Elizabeth River at an approximate right angle from the land a distance of 1328 feet. The pier is supported by piles sunk into the river bed. There is a shed on the pier covering a distance of 1280 feet, the first 500 feet being two stories high. The width of the apron of the pier at the extreme offshore end is 40 feet, and on the north side is 36 feet. The depth of the water at mean low water off the end of the pier is from 30 to 35 feet and along the north side of the pier's apron is 30 feet. While not in the findings of the Deputy Commissioner, the parties have stipulated that there was water under the pier of sufficient depth to permit a small barge or a small launch or rowboat to go between the pilings. It is further
In Avery, the petitioner was an employee of Old Dominion Stevedoring Corporation in the capacity of longshoreman at the time of his injury on December 28, 1961. He was assigned, together with other members of the work gang, to an open type railroad car and was engaged in hooking up logs which, in turn, were being hoisted from the railroad car by means of the ship's gear and loaded onto the vessel which was afloat in the Elizabeth River. While a log was being lifted from the...
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Nacirema Operating Co v. Johnson Traynor v. Johnson, Nos. 9
...United States' as required by the Act.2 The District Courts upheld the Deputy Commissioners' decisions, 243 F.Supp. 184 (D.C.Md.1965); 245 F.Supp. 51 (D.C.E.D.Va.1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed.3 398 F.2d 900 (1968). We granted certiorari, 393 U......
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NALCO CHEMICAL CORPORATION v. Shea, Civ. A. No. 68-972.
...(1966). The Ninth Circuit's decisions on this matter were followed in Dixon v. Oosting, 238 F.Supp. 25 (E.D.Va.,1965); East v. Oosting, 245 F.Supp. 51 (E.D. Va.,1965); and Puget Sound Bridge & Dry Dock Co. v. O'Leary, 260 F.Supp. 260 (W.D.Wash.,1966). A de novo trial in jurisdictional f......
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United States v. California, No. 5
...Insurance Co. v. Shea, 382 F.2d 344 (CA5 1967); Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (CA2 1965); East v. Oosting, 245 F.Supp. 51 (E.D.Va.1965); Johnson v. Traynor, 243 F.Supp. 184 (Md.1965). It suggests this is at least an implicit congressional declaration that piers are l......
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Green v. Pope & Talbott, Inc., No. 4809
...Md.1965) (consolidated), and the judgment of the United States District Court for the Eastern District of Virginia in Avery v. Oosting, 245 F.Supp. 51 (E.D.Va.1965). Two of the three cases ultimately decided by the Supreme Court originated in the judicial process before the undersigned judg......
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Nacirema Operating Co v. Johnson Traynor v. Johnson, Nos. 9
...United States' as required by the Act.2 The District Courts upheld the Deputy Commissioners' decisions, 243 F.Supp. 184 (D.C.Md.1965); 245 F.Supp. 51 (D.C.E.D.Va.1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed.3 398 F.2d 900 (1968). We granted certiorari, 393 U......
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NALCO CHEMICAL CORPORATION v. Shea, Civ. A. No. 68-972.
...(1966). The Ninth Circuit's decisions on this matter were followed in Dixon v. Oosting, 238 F.Supp. 25 (E.D.Va.,1965); East v. Oosting, 245 F.Supp. 51 (E.D. Va.,1965); and Puget Sound Bridge & Dry Dock Co. v. O'Leary, 260 F.Supp. 260 (W.D.Wash.,1966). A de novo trial in jurisdictional f......
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United States v. California, No. 5
...Insurance Co. v. Shea, 382 F.2d 344 (CA5 1967); Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (CA2 1965); East v. Oosting, 245 F.Supp. 51 (E.D.Va.1965); Johnson v. Traynor, 243 F.Supp. 184 (Md.1965). It suggests this is at least an implicit congressional declaration that piers are l......
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Green v. Pope & Talbott, Inc., No. 4809
...Md.1965) (consolidated), and the judgment of the United States District Court for the Eastern District of Virginia in Avery v. Oosting, 245 F.Supp. 51 (E.D.Va.1965). Two of the three cases ultimately decided by the Supreme Court originated in the judicial process before the undersigned judg......