Hardaway Contracting Company v. O'KEEFFE

Citation414 F.2d 657
Decision Date14 November 1968
Docket Number25492.,No. 25276,25276
PartiesHARDAWAY CONTRACTING COMPANY and the Fidelity and Casualty Company of New York, Appellants, v. William M. O'KEEFFE, as Deputy Commissioner, Etc., United States Department of Labor, Appellee (two cases.)
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Ernest W. Welch, Panama City, Fla., for appellants.

Clinton Ashmore, U. S. Atty., Tallahassee, Fla., Burke Floyd, Apalachicola, Fla., Leavenworth Colby, Sp. Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE, COLEMAN and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

These appeals are taken by the insurance carrier and employer from an order of the district court which denied an injunction to set aside the compensation ordered paid by the appellee Deputy Commissioner, and which affirmed the award of benefits under the Longshoremen's Act, 33 U.S.C.A. § 901 et seq. to appellees Idel Tolbert, et al, and from a corrected final judgment awarding the appellees recovery of the amounts accrued under the original award, together with 20 percent additional compensation under 33 U.S.C.A. § 914(f), for delay in payment.

The first contention on the merits of the original award requires us to consider once again the troublesome question whether the decedent employee was excluded from the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., by reason of his being "a master or member of a crew of a vessel." Included within this question is the further question whether on the record before us the determination whether the decedent Rogers was or was not a member of a crew of a vessel is to be decided as a question of fact, or whether because of the substantially undisputed nature of the basic facts the determination of this issue is to be made by the court, notwithstanding the determination by the deputy commissioner and the trial court.

This appeal results from the denial by the trial court of an injunction against the enforcement of a determination by the Deputy Commissioner which included the following:

"* * * the decedent Richard Gerald Rogers, while performing service for the employer as a laborer and while engaged in building a bridge from Cat Point, Florida, to Bulkhead Point, Florida, sustained personal injury resulting in his death, when, as he was standing on board the employer\'s vessel, `Dutchman,\' and loading diesel fuel tanks from the `Dutchman\' to the employer\'s other vessel, `Panama,\' both vessels being afloat in Apalachicola Bay near Bulkhead Point, Saint George Island, Florida, the claimant slipped and fell from the vessel, `Dutchman,\' into Apalachicola Bay and drowned; that the decedent was a laborer and not a seaman since he was not permanently attached to the vessel and his primary duties did not include aiding in the navigation of the vessel and such duties were rare, sporadic and incidental; that the decedent was on the navigable waters of the United States and engaged in loading the vessel, `Panama\'; that the claim comes under the provisions of the Longshoremen\'s and Harbor Workers\' Compensation Act; * * *."

We conclude that the record amply supports the following findings of fact made by the trial court:

"1. The deceased was employed by Hardaway Contracting Company as a laborer and engaged in building a bridge from Cat Point, Florida, to Buckhead Point, Florida.
"2. The deceased duties were to assemble wooden forms called `vents\' on top of the pilings in connection with the construction of a bridge from Cat Point to St. Georges Island.
"3. That after the wooden forms called `vents\' were fitted on top of the pilings, concrete was poured in the `vents.\'
"4. To then disassemble the forms and move the forms to the next set of piling in connection with the construction and flooring of a bridge being built.
"5. That the deceased was employed by Hardaway Contracting Company on land at a trailer parked on the shore at East Point, which was used as its office.
"6. The deceased was a laborer and paid on an hourly basis of $1.25 per hour, and $1.87 an hour for overtime.
"7. Each morning the deceased was transported from the mainland to his work on a boat designated as `The Dutchman.\'
"8. The deceased slept at home and took his meals at home, except for lunch, which he brought each morning from his home.
"9. The deceased workman had no seaman or maritime papers, but was working under a foreman of a crew as a laborer in connection with the construction of said bridge. * * *"

In addition to these findings, the trial court concluded: "The total circumstances show that the deceased was not a member of any crew of a vessel."

Part of the difficulty arising following claims of this character, which by their very nature are intended to be somewhat summary to the extent that the dependents of a deceased person who is truly covered by the act, are normally thought to be in need of immediate compensation, is that the Longshoremen's and Harbor Workers' Compensation Act and the Jones Act, 46 U.S.C.A. § 688, have been thought to be mutually exclusive (but see Jackson v. Lykes Bros. SS Co. (1967) 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488, later discussed). The Jones Act is for the protection of "seamen", which, by long court concern for the liberal policy exhibited by Congress, had been expanded to cover nearly every kind of worker engaged in or about any kind of vessel and the term "vessel" became comprehensive enough to include nearly any kind of floatable or permanently affixed structure actually off the shoreline. See Offshore Co. v. Robison (5 Cir. 1959) 266 F.2d 769, 75 A.L.R.2d 1296, where this court said:

"The Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters." (citing dissenting opinion of Mr. Justice Harlan in Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737.)

Nevertheless, there were situations in which persons working on, at, or near structures capable of floating on navigable waters were still not covered, and Congress enacted the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. covering all maritime workers except masters or "members of a crew of a vessel."

For a time there seemed to be the possibility that the Supreme Court recognized that the term "members of a crew of a vessel," as used in the Longshoremen's Act might be a more restricted term than the word "seaman" as used in the Jones Act. This is indicated in the landmark case of South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732, in which Mr. Justice Hughes held that "the word `crew' does not have an absolutely unvarying legal significance." The opinion further observed that, as used in the statute, "crew" seemed to mean "employees on the vessel that were naturally and primarily on board to aid in her navigation." (Emphasis added.) Based upon the Supreme Court's subsequent decision in Senko v. La Crosse Dredging Corp. (1957), 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404, our court has since concluded that the same test is to be applied to ascertaining whether a person is a "seaman" for purposes of Jones Act jurisdiction, or is "a member of a crew of a vessel" for the purpose of Longshoremen's Act jurisdiction, although the opinions of this court have not been completely uniform in this regard.

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19 cases
  • Holland v. Allied Structural Steel Co., Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 27, 1976
    ...lacking in cases where the plaintiff's contact with a vessel was markedly greater than that shown here. In Hardaway Contracting Co. v. O'Keeffe, 5 Cir. 1968, 414 F.2d 657, we affirmed a deputy commissioner's finding that the plaintiff was not a seaman, notwithstanding that at the time of hi......
  • Harwood v. Partredereit AF 15.5.81
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 5, 1991
    ...is not a "master or member of a crew" and is therefore covered by the LHWCA. As the Fifth Circuit noted in Hardaway Contracting Company v. O'Keeffe, 414 F.2d 657 (5th Cir.1968), "[f]or a time there seemed to be the possibility that the Supreme Court recognized that the term 'members of a cr......
  • Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 14, 1982
    ...South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257, 60 S.Ct. 544, 547, 84 L.Ed. 732 (1940); Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 660-61 (5th Cir. 1968). The Supreme Court in Bassett stated that the question turns upon the employee's actual duties and held that the cl......
  • Fusco v. Perini North River Associates
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 21, 1979
    ...320 (1977).10 Peter v. Arrien, 325 F.Supp. 1361, 1365 (E.D.Pa.1971) aff'd, 463 F.2d 252 (3rd Cir. 1972); Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657 (5th Cir. 1968); DeBardeleben Coal Corp. v. Henderson, 142 F.2d 481, 482, note 3 (5th Cir. 1944); Travelers Ins. Co. v. Branham, 136 F.......
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