Grasso v. Lorentzen

• Decision Date: 09 April 1945
• Docket Number: No. 266.,266.
• Parties: GRASSO v. LORENTZEN, Director of Shipping, etc.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 127 (1945)

GRASSO v. LORENTZEN, Director of Shipping, etc.

No. 266.

Circuit Court of Appeals, Second Circuit.

April 9, 1945.

Jacob Rassner, of New York City, for libelant-appellant.

Haight, Griffin, Deming & Gardner, of New York City (Edgar R. Kraetzer and J. Ward O'Neill, both of New York City, of counsel), for respondent-appellee.

Before SWAN, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This is an appeal from a decree of the District Court for the Southern District of New York dismissing on the merits a libel for personal injuries brought against the respondent as Director of Shipping and Curator for the Royal Norwegian Government.

From the facts as stipulated and as found by the court it appears that the libellant is a longshoreman who on May 15, 1942, was 42 years old and employed by Northern Dock Company, Inc., being engaged on that day in helping stow, on behalf of his employer who was under contract to perform that service, a cargo of crates containing army tanks on board the steamship Torvanger, which was berthed at State Pier in Brooklyn. The respondent, operating as a Norwegian Shipping and Trade Mission, owned and controlled the vessel.

The libellant's employer was insured with Travelers Insurance Company in compliance with the insurance provision of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. When the libellant was hurt he was standing upon one of the crates being stowed in the hold under hatch No. 2 on the 'tween deck of the Torvanger. The longshoremen were then using a strap made of one-inch wire rope six feet long, which was looped around a gusset or bracing plate that ran at an angle from the side of the ship to the under frame of the deck. A cable from a winch on the upper deck passed through snatch blocks, including one that was held by this strap, and with it the longshoremen were drawing the crates into position in the hold. The strap was bent over the gusset plate, which was 5/8 of an inch wide at the top. The strap had been found there by the longshoremen and was used by them without inspection and without the knowledge and consent of the ship.

The judge found on adequate, though disputed, evidence that it was the established custom among longshoremen in New York Harbor to bring aboard their own equipment and that the "Northern Dock Company in accordance with the custom undertook to furnish its own straps for use of its employees on the S. S. Torvanger."

The libellant was severely injured while stowing the crates when the strap broke and the snatch block which it had held struck him on the back.

On May 29 a report of the accident, signed by his employer, was forwarded by the insurance company to the Deputy Commissioner of the United States Employees' Compensation Commission in New York, advising that it had begun on that day to make payments of compensation without awaiting an award under the Act, and no such award was ever made. Thereafter payments were continued at the rate of $20 per week until a total of $354.29 had been paid by the insurance company. The latter than advised the Deputy Commissioner that it had stopped payments because the libellant was required to establish the continuance of his disability. On November 25 he was examined and a report of this examination was subsequently forwarded to the commission. All this time the negotiations in its behalf were carried on by a claims examiner in the office of the Deputy Commissioner.

On December 4 a claims examiner wrote the libellant and the insurer to request a conference on December 17, but on the fifteenth the libellant's proctor wrote to the commission advising it that the libellant had decided to sue a third party and so would not attend the conference. On December 17 the libellant notified the commission of his election to sue a third party, and this suit followed.

The respondent pleaded the acceptance of compensation by the libellant as a defense to the action under the Longshoremen's and Harbor Workers' Compensation Act, supra, 33 U.S.C.A. § 933 (b), on the ground that such acceptance was an assignment to his employer of any cause of action he had against the respondent. This defense was overruled, and rightly so. Before the statute was amended in June 1938, acceptance of compensation was enough under § 933(b) to operate as an assignment to the employer of the employee's cause of action against a third party, and thereafter there could be no election under § 933(a) to sue rather than to receive compensation. Sciortino v. Dimon Steamship Corporation, D.C., 39 F.2d 210, affirmed 2 Cir., 44 F.2d 1019. But after the amendment the phrase "acceptance of compensation" in § 933(b) was modified by the words "under an award in a compensation order filed by the deputy commissioner." As a result of the amendment there must now be some official action by the Deputy Commissioner establishing an award of compensation in order to make such acceptance an assignment of the employee's cause of action against a third party. Although the award may be informal, see Toomey v. Waterman Steamship Corporation, 2 Cir., 123 F.2d 718, it must amount to...