Gahagan Const. Corporation v. Armao

• Decision Date: 06 January 1948
• Docket Number: No. 4280.,4280.
• Citation: 165 F.2d 301
• Parties: GAHAGAN CONST. CORPORATION v. ARMAO.
• Court: U.S. Court of Appeals — First Circuit

165 F.2d 301 (1948)

GAHAGAN CONST. CORPORATION v. ARMAO.

No. 4280.

Circuit Court of Appeals, First Circuit.

January 6, 1948.

Paul R. Frederick of Boston, Mass. (C. Petersen and Badger, Pratt, Doyle & Badger, all of Boston, Mass., on the brief), for appellant.

Stanley H. Rudman, of Boston, Mass. (Joseph Schneider and Schneider, Reilly & Bean, all of Boston, Mass., on the brief), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

This is an action at law under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688. The plaintiff alleges that on November 11, 1945, while he was employed by the defendant as a deck hand and member of the crew of a dredge operated by the defendant on navigable waters of the United States in Boston Harbor, he sustained severe injuries because of the defendant's negligence.

At the time of the accident the defendant, the Gahagan Construction Corporation, was engaged in dredging operations for the Commonwealth of Massachusetts. The defendant was to dredge material from specified areas by the hydraulic method and to place this as fill on embankments at Logan Airport in East Boston. Dredge No. 5 on which the plaintiff was employed was one of the dredges used in this work. It pumped silt and sand from the bottom of the harbor and by means of a pipe line extending from the dredge to the shore deposited it on the airport. It had no motive power of its own and had to be towed by tugs or other vessels when coming from or going to the place of operations. The only machinery aboard was steam turbine engines which operated the mechanisms for digging and hoisting and controlling the "spuds" which were used to hold the dredge in place during actual dredging operations. The spuds were also used in connection with lines attached to anchors, the spuds acting as pivots so that the dredge could move itself forward within short distances. At the time of the accident, about eight o'clock in the evening, the plaintiff had been directed to climb to a platform on the cutter arm to check the navigation lights. As he was about to descend, the cable which operated the arm began to move and his hand was drawn into a pulley block causing him to lose three fingers.

The defendant denied that it was negligent. It also denied that the plaintiff was employed as a member of the crew, or that the accident occurred on navigable waters. Further it denied that this accident was within the maritime jurisdiction of the United States. It contended that the plaintiff's sole remedy, if any, was under the Massachusetts Workmen's Compensation Act, Mass.Gen.Laws, 1932, c. 152, or under the Longshoremen's and Harbor Workers' Act of the United States, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq. The defendant was insured under both of these acts.

At the trial in the lower court, the District Judge refused the defendant's motion for a directed verdict. He also refused to make certain rulings and give certain instructions requested by the defendant. The case was submitted to the jury, which returned a verdict for the plaintiff and final judgment was entered thereon. The defendant's motion to have the verdict set aside and judgment entered in accordance with its motion for a directed verdict was denied. The defendant appealed.

It contends that the accident did not occur in navigable waters and, therefore, was outside of the admiralty jurisdiction. This contention is based largely upon testimony that at low tide the flats in the area where the dredge was operating were bare. There was also testimony that all the flats in this area were covered by water only four hours out of twelve. But there was ample testimony to sustain the jury's conclusion that the dredge was plying in navigable waters. The plaintiff testified that at the time of the accident he was removed from the dredge by a tug boat and that it took fifteen to twenty minutes to go to the shore. There was testimony by disinterested witnesses that the average height of the water was approximately eight feet above low mean water-mark. Mr. O'Donnell, who was employed by the State Department of Public Works, as a supervisor, testified that he often went out to the dredge by means of a motor boat, and that there were often tugs around the dredge. He also testified that at the mean high water-mark he could go wherever he pleased with his boat. Mr. Metcalf, who was Coordinator of the Port of Boston during the war, testified that he had seen boats in the area where the dredge operated. He stated that at times there were eleven foot tides in this area and a ship drawing nine feet could navigate there. He also gave as his opinion that the area in which the dredge was operating in November, 1945, was an area of navigable water. The jury could justifiably believe the testimony of these witnesses and its conclusion that the dredge was plying in navigable waters at the time of the accident cannot be upset.

The defendant also contends that even if the facts herein show a maritime tort to which the general maritime jurisdiction would extend, the state compensation law abrogates the right to resort to admiralty remedies since the matter is of mere local concern and regulation by the state would work no material prejudice to the characteristic features of the maritime law, and would not interfere with the proper harmony or uniformity of that law. The concept of local concern developed after Southern Pacific Co. v. Jensen, 1917, 244 U. S. 205, 137 S.Ct. 524, 61 L.Ed. 1086, L.R. A.1918C, 451, Ann.Cas.1917E, 900, and subsequent cases, which propounded the doctrine that state workmen's compensation acts could not constitutionally be applied, even by state courts, to injuries incurred by maritime workers on navigable waters. Just when a matter is of local concern only so that the state law may be applied is a question that has long perplexed the courts. The only verbal test given in the cases is that if the employment has no direct relation to navigation and commerce, if state regulation will not prejudice the uniformity of the maritime law, then state laws may be applied and the general maritime jurisdiction abrogated. Millers' Indemnity Underwriters v. Braud, 1926, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470; Grant Smith-Porter Ship Co. v. Rohde, 1922, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008. No more definite test has been laid down, with resulting confusion in the lower federal courts. The constitutional basis of the Jensen case has been severely questioned, but the idea of an exclusive maritime law not subject to state law has never been repudiated by the Supreme Court. As late as 1941, the Court in Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, stated that regardless of the constitutional basis of the Jensen and later decisions, Congress in the enactment of the Longshoremen's and Harbor Workers' Compensation Act had accepted them as defining the line between admiralty and state power.

Some indication of what the Supreme Court considers to be of only local concern may be gathered from an examination of the decisions. Thus, a state workmen's compensation act may be applied to a carpenter injured while working on a ship which has been launched but not yet completed, Grant Smith-Porter Ship Co. v. Rohde, supra; to a diver employed by a shipbuilding company to remove obstructions in the course of a river, Millers' Indemnity Underwriters v. Braud, supra; to a longshoreman injured on land, Smith & Son v. Taylor, 1928, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520; to a lumber inspector temporarily aboard a schooner checking a cargo of lumber being unloaded from another vessel, Rosengrant v. Havard, 1927, 273 U.S. 664, 47 S.Ct. 454, 71 L.Ed. 829; to a person trying to launch a small boat, Alaska Packers' Ass'n v. Industrial Accident Comm., 1928, 276 U.S. 467, 48 S.Ct. 346, 72 L.Ed. 656; to men engaged in logging operations, Sultan Ry. & Timber Co. v. Department of Labor, 1928, 277 U.S. 135, 48 S.Ct. 505, 72 L.Ed. 820; and to an engineer working on a barge dismantling a bridge, Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. On the other hand the general maritime law is controlling and state laws can not constitutionally be applied to stevedores injured on navigable waters, Minnie v. Port Huron Terminal Co., 1935, 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631; Employers' Liability Assurance Corporation v. Cook, 1930, 281 U.S. 233, 50 S.Ct. 308, 74 L.Ed. 823; Northern Coal & Dock Co. v. Strand, 1928, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232; Southern Pacific Co. v. Jensen, supra; State of Washington v. Dawson & Co., 1924, 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646; nor to repairmen working on ships, Baizley Iron Works v. Span, 1930, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819; Robins Dry Dock & Repair Co. v. Dahl, 1925, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372; Gonsalves v. Morse Dry Dock Co., 1924, 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228.

The Supreme Court has indicated that within a shadowy area where it is unclear which law should apply, if either the Longshoremen's Act or a state act is applied, the result will be upheld. See Davis v. Department of Labor, supra. But it should be noted that the overlap is between the federal compensation act and the state acts. It has not been suggested that the Jones Act and the state acts overlap. In no case in the Supreme Court in which the injured person was a seaman performing a seaman's duties on navigable water has state law been held applicable. Even those members of the Supreme Court who customarily dissented in the application of the Jensen rule, concurred in holding state acts inapplicable where the injured person was a seaman covered by the Jones Act. See Employers' Liability Assurance Corporation v. Cook, supra, 281 U.S. at page 237, 50 S.Ct. 308, 74 L.Ed. 823; Northern Coal & Dock Co. v. Strand, supra, 278 U.S. at page 147, 49 S.Ct. 88, 73 L.Ed. 232....