FLYING TIGER LINES, INCORPORATED v. Landy

• Decision Date: 14 November 1966
• Docket Number: No. 20358.,20358.
• Citation: FLYING TIGER LINES, INCORPORATED v. Landy, 370 F.2d 46 (9th Cir. 1966)
• Parties: FLYING TIGER LINES, INCORPORATED, and Employers Mutual Liability Insurance Company of Wisconsin, Appellants, v. David R. LANDY, Deputy Commissioner for the 13th Compensation District and Peter Gregory Thomas, Maureen Altair Thomas, and Terry Ava Thomas, Minor Children of Gregory Peter Thomas, Deceased, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 46 (1966)

FLYING TIGER LINES, INCORPORATED, and Employers Mutual Liability Insurance Company of Wisconsin, Appellants, v.David R. LANDY, DeputyCommissioner for the 13th Compensation District and Peter Gregory Thomas, Maureen Altair Thomas, and Terry Ava Thomas, MinorChildren of Gregory Peter Thomas, Deceased, Appellees.

No. 20358.

United States Court of Appeals Ninth Circuit.

November 14, 1966.

Warren Hanna, of Hanna & Brophy, San Francisco, Cal., for appellants.

John W. Douglas, Asst. Atty. Gen., Cecil F. Poole, U. S. Atty., Morton Hollander, Leavenworth Colby, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before: JERTBERG, BROWNING, and ELY, Circuit Judges.

ELY, Circuit Judge:

Appellants, plaintiffs below, sought to set aside and enjoin enforcement of a compensation award made by the Deputy Commissioner.42 U.S.C. § 1653(b).Their appeal challenges the District Court's action in granting the Deputy Commissioner's motion for summary judgment and dismissing the suit.Our jurisdiction rests on 28 U.S.C. § 1291.

The controversy originated with the disappearance, on March 16, 1962, of an airplane operated by Flying Tiger Lines, Inc., the plaintiff-employer, and piloted by Gregory Peter Thomas, whose survivors are the codefendants in the action.Pursuant to a contract between Flying Tiger and the United States Air Force, the plane was transporting military personnel from Travis Air Force Base in California to Viet Nam, via Manila.

After entry of an order of the Superior Court of Los Angeles County, California, establishing that the pilot's death had occurred on the date of the disappearance, his minor children, through their mother as guardian ad litem, filed a claim for death benefits under the California Workmen's Compensation Act, Cal.Labor Code §§ 3201-6149.On March 18, 1963, following a hearing, a referee of California's Industrial Accident Commission awarded them $17,500 to be paid at the rate of $70 weekly.After $4,270 had been paid in installments, and at the request of the beneficiaries, the Industrial Accident Commission ordered payment of the balance of the award in a lump sum.The then present value of the remaining obligation, $13,230 to be paid at $70 weekly, was $12,549.91.This amount was paid, resulting in there having been paid a total of $16,819.91 in satisfaction of the original award of $17,500.

The same applicants thereafter filed a claim for death benefits under the Defense Base Act, 42 U.S.C. §§ 1651-1654.Appellants contested the claim, and on August 7, 1964, the challenged award was made.Under its terms, appellants were held to be liable to appellees for $68.25 per week from the date of the plane's disappearance and continuing so long as appellees should maintain eligibility requirements.Credit was allowed appellants for the $16,819.91 which they had actually paid pursuant to the prior state award.

The contention that the federal award should be set aside is based on two theories, (1) that decedent's death was not compensable under the terms of the federal act and the Deputy Commissioner was thus without jurisdiction to enter the award, and (2) that either the state determination was res judicata or the earlier application for and receipt of state benefits constituted a binding election of remedies.

Additionally, it is argued that if appellees were entitled to a federal award, appellants should have been credited with payment of $17,500, the face amount of the state award, and not merely for the sum of $16,819.91 which was actually paid.

The district judge upheld the Deputy Commissioner's award under 42 U.S.C. § 1651(a)(4), which extends the provisions of the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C. §§ 901-950, to employees engaged in employment under certain contracts entered into with any agency of the United States for the purpose of performing public work.Section 1651(b)(1) defines "public work" as

"* * * any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project;"

Appellants urge that a "public work" contract was not here involved.They rely on Walker v. American Overseas Airlines, 275 App.Div. 974, 90 N.Y.S.2d 537(1949), in which the New York intermediate appellate court held, on the authority of Losch v. Curtiss-Wright Corp., 275 App.Div. 1, 87 N.Y.S.2d 714(1949), that an airplane pilot hired to perform duties similar to those performed by the decedent herein was not within the coverage of the Defense Base Act.In Losch,the court had observed,

"It seems obvious to us that the Congress in the enactment of this legislation and in the definition of `public work\' intended to limit its scope to projects of a fixed and permanent nature, and to afford coverage only to those employees who were engaged in construction and similar work.It requires a strained and unnatural interpretation to stretch its phraseology to cover an aircraft technician."87 N.Y. S.2d at 716.

In Republic Aviation Corporation v. Lowe, 69 F.Supp. 472(S.D.N.Y.1946), aff'd, 164 F.2d 18(2d Cir.1947), cert. denied, 333 U.S. 845, 92 L.Ed. 1128, 68 Sup.Ct. 663(1948), a federal claim arose from the death of a test pilot who had been sent to a far eastern air base to demonstrate a new plane, pursuant to a contract between his employer and the United States.The District Court upheld a Defense Base Act award on the theory that the case fell within the public work provision.The Court of Appeals affirmed, but the basis of the affirmance was section 1651(a)(1), which extends coverage to employment at certain military bases.

In 1958, subsequent to the rendition of these decisions, Congress enacted the definition of "public work" in its present form.When the aforementioned cases were decided, the statutory definition was

"* * * any fixed improvement or any project involving construction, alteration, removal, or repair for public use of the United States or its Allies, including but not limited to projects in connection with the war effort, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project."

Act of Dec. 2, 1942, ch. 668, § 301,56 Stat. 1036.

The Senate Report on the amendatory bill reveals that the purpose for the redefinition was

"* * * to clarify its meaning and make it construe consistently with Federal court decisions.* * * By redefining the term `public work\' to include the words `whether or not fixed,\' the original intention to have it apply to projects of all kinds otherwise within the definition, including service contract projects, is reaffirmed."

1958 U.S.Code Cong. & Ad. News 3321, 3324.

In Alaska Airlines, Inc. v. O'Leary, 216 F.Supp. 540(W.D.Wash.1963), vacated, 336 F.2d 668(9th Cir.1964), the District Court ruled that a contract between an employer and a United States government agency, pursuant to which a pilot transported cargo from Travis Air Force Base to an air base in Japan, was one "to be performed for the purpose of engaging in public work."216 F.Supp. at 543.On other grounds, however, the District Court held that the Defense Base Act was inapplicable.

The language of section 1651(b)(1) is now sufficiently broad to encompass the type of employment in which the applicant's decedent was engaged.The legislative history reenforces this conclusion.

Next, appellants contend that, regardless of the applicability of section 1651(a)(4), the award was erroneously contrary to 42 U.S.C. § 1654, which provides that

"This chapter shall not apply in respect to the injury or death of * * * (3) a master or member of a crew of any vessel."

In Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254(1934), the Supreme

Court explained that the purpose for the identical provision in the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C. § 903, was to accommodate the desires of seamen who preferred the remedy for damages afforded them under the Jones Act to benefits under the system of workmen's compensation.293 U.S. at 160, 55 S.Ct. 46.Here, the appellees had no alternative remedy under the provisions of the Jones Act.The cases cited by appellants in support of their argument that "vessel" should be construed so as to include an airplane are not persuasive.¹In our opinion, the deceased pilot was not "a master or member of a crew of any vessel" within the meaning of section 1654.

Turning to another issue, the familiar principle of res judicata is based on belief that public policy demands that there be an end to litigation, "that those who have contested an issue shall be bound by the result of that contest; and that matters once tried shall be considered forever settled as between the parties."Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244(1931).The principle applies to determination of questions of jurisdiction as well as to determination of other issues.American Surety Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231(1932).

In Chicago, R. I. & P. Ry. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757(1926), the widow of a workman killed in the course of his employment with the railroad initiated a Minnesota state court action.The claim was based upon the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60.Shortly thereafter, the employer instituted a proceeding in Iowa, requesting an arbitration under that state's workmen's compensation law.The death was compensable under the Iowa statute only if the decedent had been...