Flowers v. Travelers Insurance Company

• Citation: 258 F.2d 220
• Decision Date: 15 July 1958
• Docket Number: No. 16654.,16654.
• Parties: Clyde FLOWERS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

258 F.2d 220 (1958)

Clyde FLOWERS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 16654.

United States Court of Appeals Fifth Circuit.

July 15, 1958.

Joe H. Tonahill, Jasper, Tex., for appellant.

Jerry D. Barker and Barker, Barker & Simpson, Galveston, Tex., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Now entering upon its fifth decade with a tenacity which refuses to acquiesce in occasional contemporary reports of its final rejection, Jensen¹ and its limitless wake² is once again the heart of the old, old controversy: is workmen's compensation coverage under the State (Texas) or Federal (Longshoremen and Harbor Workers' Compensation) Act? The District Court held that the Texas Act could not apply. Here, as so often, the facts, strikingly simple, neither complex nor conflicting, are not the cause of bewilderment. On them, the picture is clear-cut. What distorts or obscures or befogs the vision is not fact, but law. Strong as is the temptation to undertake to chart a way to dispel it altogether, the task, essayed by others with generally unrewarding results, it too formidable. All we can hope to do, either by a minute and transitory dispersion of the cloud, or an indirect penetration of it by a reading on some juridical radarscope, is to see how this small case is to be decided.

Flowers was injured while performing duties as a welder in making repairs on the S. S. Redstone, a large ocean-going tanker. The vessel was in a floating drydock in Todd Shipyard in Galveston Harbor.

The setting was wholly maritime. The ship was the very instrument of ocean commerce. The vessel, if not actually floating in navigable waters, was there in law. For she was in a floating drydock which by all tests made the place of injury maritime. Avondale Marine Ways, Inc., v. Henderson, 5 Cir., 201 F.2d 437, 1953 AMC 432, affirmed 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, 1953 AMC 1990. The work he was doing was maritime. For the repair of an existing vessel is one of the most ancient of maritime transactions giving rise even to that most cherished and characteristic badge — the formidable lien in rem. Benedict on Admiralty, 6th Ed., Vol. 1, pp. 17-32; The General Smith, 4 Wheat. 438, 17 U.S. 438, 4 L.Ed. 609; The Lottawanna, 21 Wall. 558, 88 U.S. 558, 22 L.Ed. 654. His presence on board the ship, actively working as a welder, essential to the making of essential repairs, was nonetheless maritime even though 80% of his work was generally ashore in the plate department of the Shipyard. The non-maritime nature of the so-called regular work or duties is completely irrelevant. Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232, 1929 AMC 64; Employers' Liability Assurance Corp. v. Cook, 281 U.S. 233, 50 S.Ct. 308, 74 L.Ed. 823, 1930 AMC 760; Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, 1942 AMC 1; Pennsylvania R. Co. v. O'Rourke,³ 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367, 1953 AMC 237.

Nor was it, in the special context of this ceaseless, half-century running battle, that kind of a case in which "* * * employees * * * occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation" or as to which "* * * the line separating the scope of the two State and Federal Compensation Acts being undefined and undefinable with exact precision, marginal employment may, by reason of the particular facts, fall on either side" which led the Court in Davis v. Department of Labor of Washington, 317 U.S. 249, 253, 63 S.Ct. 225, 255, 87 L.Ed. 246, 248, 250, 1942 AMC 1653, to add to or detract from the post-Jensen gloss by its now celebrated figure of the twilight zone:⁴

"There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act." 317 U.S. at page 256, 63 S.Ct. at page 229, 87 L.Ed. at page 250.

This is so because, both before and since the time of Davis, the doing of repair work on an existing vessel has been treated⁵ as so clearly maritime in nature that attempted application of State compensation laws would collide with that essential uniformity which was the very breath of Jensen.

There is thus no undefined or undefinable boundary. There is here no marginal employment. Davis v. Department of Labor, supra. If there is, in our simple case, a twilight, it must have come, if it did, from a solar or lunar-like eclipse, partial or complete, temporary or permanent, occasioned as the unilluminating per curiams in Moore's⁶ and Baskin⁷ cast either a shadow or obscured light.

We speak of them in this figure neither to disparage them nor to avoid their authoritative force if, and to whatever extent, they are applicable. But we, with others,⁸ and perhaps the Court⁹ itself, see in these actions either uncertainty, if not now, then assuredly in the making, and an accentuated instability in the everyday administration of compensation acts to amphibious employees if these are thought to throw down the bars in complete disregard of the philosophy expressed in Parker v. Motor Boat Sales, Inc., supra, and to this date not repudiated that Congress meant to draw the line where Jensen left it. DeBardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481, 483.

We think that the Court by subsequent action has made it quite plain that it had no such revolutionary purposes in mind. Pennsylvania Railroad Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367, 1953 AMC 237, has, in our judgment, been given altogether too little attention. To us, it has substantial significance. Once again, while scholars and others were sounding the death knell of Jensen, the Court was the donor of another transfusion. "A quarter of a century of experience has not caused Congress to change the plan. The `Jensen line of demarkation between state and federal jurisdiction' has been accepted. Davis v. Department of Labor & Industries * * *." Id., 344 U.S. 334, 73 S.Ct. at page 304, 97 L.Ed. at page 372.

We are aware, of course, that that case dealt immediately with the contest between two Federal statutes, the Longshoremen's Act, 33 U.S.C.A. § 901 et seq., and the Jones Act, 46 U.S.C.A. § 688, adopting F.E.L.A., 45 U.S.C.A. § 51 et seq. But both in a negative and affirmative way, the Court inevitably dealt with the Jensen problems of a state act, vis-a-vis the Federal Act. After reviewing the Jensen history and the passage of the Longshoremen's and Jones Acts, the Court reaffirmed the constitutional implications. "This act and the Jones Act provided means for indemnification for injuries for all maritime employees who were beyond the constitutional reach of state legislation * * *." Id. Immediately thereafter it made the decisive statement that "New Jersey could not have enacted statutes granting compensation for respondent's injury on navigable water. Therefore respondent comes within the coverage of that portion of § 903(a) that includes those outside the reach of state compensation laws." Id., 73 S.Ct. at page 304.

O'Rourke was treated by the Court as was the employee in Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754, 1930 AMC 763. The Court held that each had been engaged in the actual work of loading or unloading cargo from a vessel. If for one doing such work a state could not validly provide for workmen's compensation, then surely it could not for one in Flowers' status whose work as a repairman on an existing vessel reeked equally of the sea.

It added the further and entirely new concept that where coverage of § 903(a) is applicable, the exclusive liability of § 905 does not depend on the nature or character of the work being done by the injured employee so long as (1) that injury occurs on navigable waters and (2) the employer is such a person "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any drydock.)," § 902(4). Flowers' rights under the Act for an injury admittedly received on navigable waters while engaged in the performance of his duties depended, not upon his own status (even though it was purely maritime in nature), but rather upon the fact that his employer, Todd Shipyards Corporation, had "any * * employees" engaged in maritime employment. The undisputed facts, the stipulation, and the very nature of its business established conclusively that this condition was fully met. The result here, as there, is plainly indicated for "If * * the accident occurs on navigable waters, the Act must apply if the injured longshoreman ship repairer was there in furtherance of his employer's business, irrespective of whether he himself can be labeled `maritime.' Such are the admitted facts of this case." Pennsylvania R. Co. v. O'Rourke, supra, 344 U.S. 334, 73 S.Ct. at page 306, 97 L.Ed. at page 374.

Several additional factors reinforce this general conclusion that the Court did not mean for Moore's and Baskin to capsize all that had existed before.

If, as some have thought,¹⁰ the emphasis in Davis on presumptive validity was primarily a reflection of administrative finality by whichever agency, state or federal, first handles the case, then the action here of the District Court in rejecting state, and sustaining federal, coverage has an additional basis. From an administrative point, Texas has categorically rejected jurisdiction, power of control over this case. Texas did it first by the order of the Industrial Accident Board, Tex.Rev.Civ.Stat.Ann. Art. 8307, dismissing the claim because it was subject to the Federal Act. Texas did it next by the action of the Court below since, in the...