Holland v. Harrison Bros. Dry Dock and Repair Yard, Inc.
Decision Date | 28 June 1962 |
Docket Number | No. 19232.,19232. |
Citation | 306 F.2d 369 |
Parties | Leroy HOLLAND and P. J. Donovan, Deputy Commissioner, Seventh Compensation District, Bureau of Employees Compensation, United States Department of Labor, Appellants, v. HARRISON BROTHERS DRY DOCK AND REPAIR YARD, INC., and Aetna Insurance Company, Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Morton Hollander, David L. Rose, Attys., Dept. of Justice, Washington, D. C., W. S. Murphy, Lucedale, Miss., Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., William H. Orrick, Jr., Asst. Atty. Gen., Washington, D. C., for appellants.
Alexander Foreman, Jr., Alton R. Brown, Jr., Foreman & Brown, Mobile, Ala., for appellee.
Before HUTCHESON, WISDOM, and BELL, Circuit Judges.
Leroy Holland was employed by Harrison Brothers Dry Dock and Ship Repair Yard, Inc. to work in its shipyard at Mobile, Alabama. June 20, 1957, while lifting a heavy hose, he received a severe injury to his lower back. Although he attempted to return to work and to find other, lighter work after the injury, Holland's back continued to be painful, and he has not worked since February, 1958. In May, 1959, he filed this claim for compensation under the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. After a full hearing, the Deputy Commissioner awarded Holland $5450 in accrued compensation and temporary total disability benefits of $40 a week, plus medical care. The appellee successfully challenged the award in the District Court on the ground that since the accident had occurred on land there was no jurisdiction for an award under the Longshoremen's Act. We reverse the action of the District Court and reinstate the award.
The facts are not disputed. Holland was employed by the appellee as a laborer. The day of the accident he was working on a large barge drawn up on a marine railway for repairs. Holland was cleaning sand off the sides of the barge when the foreman instructed him and two others to clear the area under the barge so that they could sand-blast the hull. A heavy twenty-foot length of six-inch rubber hose lay on the ground perpendicular to the barge. One end was under the barge and in the water. One of the men was under the barge. Holland was about five feet behind him and directly beneath the edge of the barge. The third worker stood five or six feet behind Holland. The hose proved too heavy for the three men to lift, and Holland was injured in the attempt. There is no allegation on either side that the injury resulted from negligence by any of the people involved.
The day after the accident Holland informed his supervisor of his injury, and for four weeks he received medical care from a physician of his own choice. July 20, 1957, he returned to the job and performed light duties assigned to him until July 29 when he left Harrison Brothers permanently to receive additional medical care. August 12 his doctor discharged him with the advice that he would be physically able to return to regular duty September 3, 1957. During the following months Holland worked sporadically as a service station attendant, but he worked a total of only seven weeks at that job, and continuing pain in his back forced him to abandon it altogether in February, 1958. Harrison Brothers made voluntary payments under the Alabama State Compensation Law of $245 to cover the periods from June 20 to July 19 and July 30 to August 31 and also paid certain medical expenses incurred by Holland. The Deputy Commissioner's award credited the appellee for these payments.
The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 903, requires an employer to make compensation payments irrespective of fault "in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." 33 U.S.C.A. § 905 provides that if a remedy is available to an injured worker under the Act that remedy shall be exclusive. 33 U.S.C.A. § 908 establishes a schedule of compensation payments which in the case of a total disability sets the benefits at two-thirds of the employee's previous regular wage. The Alabama Compensation Law, Section 279 of Title 26, sets total disability payments at fifty-five per cent of the worker's previous regular wages and limits these payments to 300 weeks. Holland, seeking to obtain the more liberal compensation provided by the federal act, argues that the express provision for coverage of injuries occurring on dry docks naturally includes also injuries occurring on land immediately adjacent to the dry docks. Harrison Brothers counters that when a worker is injured with both feet planted on dry earth there is no federal coverage, regardless of whether he may be standing at the water's edge or near a dry dock. We conclude that this case falls within the "twilight zone" and that the Deputy Commissioner could properly find that Holland was entitled to relief under the Longshoremen's Act.
The tortured history of the division between state and admiralty jurisdiction with regard to workmen's compensation claims has been described fully.1 We advert to it only briefly. The most recent decision is Calbeck v. Travelers Ins. Co., 82 S.Ct. 1196, reversing Travelers Ins. Co. v. Calbeck, 5 Cir., 1961, 293 F.2d 52. The source of many of the difficulties is of course Southern Pacific Company v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086. In Jensen a longshoreman sustained an injury on a gangplank between a ship and a wharf. The Court held that state compensation laws could not apply to maritime injuries since that would violate the requirement of uniformity implicit in the constitutional grant of authority over maritime law to Congress and to the federal courts. In response to Jensen, Congress in 1927 passed the Longshoremen's Act designed to provide relief to workers injured in cases beyond the reach of state protection.
Although the Act chartered a course for thousands of workers, many weary and frustrated litigants were unable to navigate the legal complexities of state and maritime jurisdiction, misjudged their course, and pursued the wrong remedy until after prescription had barred appropriate relief. In 1942 the Supreme Court, in part at least to reduce such instances of hardship,2 recognized a "twilight zone" embracing cases involving mixed elements of land and maritime jurisdiction where an appellate court would leave to the fact-finder the decision whether jurisdiction existed for the remedy sought. Davis v. Department of Labor and Industries of Washington, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. In Davis a structural steel worker engaged in dismantling a bridge across a navigable river was stowing dismantled steel in a barge when he fell from the barge and was drowned. Discussing the case in Calbeck, the Court said:
82 S.Ct. 1196.
After Davis, two per curiam decisions indicated that the Supreme Court intended the "twilight zone" "to include within a wide circle of doubt all waterfront cases involving aspects pertaining both to the land and to the sea where a reasonable argument can be made either way." Moore's Case, 1948, 323 Mass. 162, 80 N.E.2d 478, 481, aff'd, Bethlehem Steel Co. v. Moore, 1948, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 and Baskin v. Industrial Acc. Comm., 1950, 340 U.S. 886, 71 S.Ct. 204, 95 L.Ed. 643. A more recent Supreme Court decision confirms the twilight zone doctrine and the fact that as to cases within the twilight zone the injured worker is to have an outright election which remedy he wishes to seek. Hahn v. Ross Island Sand & Gravel Co., 1959, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292. This doctrine does not give every injured water front worker freedom to choose the more generous compensation statute. Where admiralty jurisdiction is clearly present the federal remedy is mandatory. Flowers v. Travelers Ins. Co., 5 Cir., 1958, 258 F.2d 220, cert. denied, 359 U.S. 920, 79 S.Ct. 591, 3 L.Ed.2d 582; Noah v. Liberty Mut. Ins. Co., 5 Cir., 1959, 267 F.2d 218. And when there is a total absence of admiralty jurisdiction the worker must of course seek relief under the state law. But when the case is on the borderline the worker is entitled to seek relief under either his state law or the federal law, and we must affirm a finding by the Deputy Commissioner that jurisdiction exists for an award under the Longshoremen's Act.3
This case is on the borderline. On several occasions this Court has held that a marine railway is a dry dock within the meaning of 33 U.S.C.A. § 903. Avondale Marine Ways v. Henderson, 5 Cir., 1953, 201 F.2d 437, aff'd per curiam, 1953, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77; Continental Casualty Co. v. Lawson, 5 Cir., 1933, 64 F.2d 802. The Supreme Court commented on the Avondale case in its Calbeck decision:
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