International Mercantile Marine Co. v. Lowe, No. 102.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MANTON, AUGUSTUS N. HAND, and CHASE, Circuit
• Citation: 93 F.2d 663
• Parties: INTERNATIONAL MERCANTILE MARINE CO. v. LOWE, Deputy Commissioner, United States Employees' Compensation, Commission (MALONEY, Intervener).
• Docket Number: No. 102.
• Decision Date: 03 January 1938

93 F.2d 663 (1938)

INTERNATIONAL MERCANTILE MARINE CO.
v.
LOWE, Deputy Commissioner, United States Employees' Compensation, Commission (MALONEY, Intervener).

No. 102.

Circuit Court of Appeals, Second Circuit.

January 3, 1938.

93 F.2d 664

Burlingham, Veeder, Clark & Hupper, of New York City (Ray Rood Allen and Edward L. Smith, both of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (David W. Wainhouse, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Michael Maloney, a longshoreman, was injured April 5, 1927, and was paid disability compensation pursuant to the Longshoremen's and Harbor Workers' Compensation Act, § 8(a), 33 U.S.C.A. § 908(a), for a period of over seven years, totaling $6,375. He died as a result of the injuries May 17, 1934, and his widow, the appellee, filed a claim with the Commissioner and was awarded $10.50 per week from the date of his death "until a total of $7,500 in death benefits shall have been paid." Appellant sued for an injunction against this payment, requesting a modification so that the total compensation payable as a result of the accident to Michael Maloney would be $7,500.

The Longshoremen's and Harbor Workers' Compensation Act provides compensation for total disability adjudged to be permanent at 66 2/3 per cent. of the average weekly wages to be paid to an employee during the continuance of such total disability. 33 U.S.C.A. § 908(a). Under this provision Maloney was paid his compensation. But section 9 of the act, 33 U.S.C.A § 909, grants compensation as a death benefit to specified persons in the event that death is caused by the injury. Such compensations are awarded irrespective of the question of negligence on the part of the employer.

Section 13(a), 33 U.S.C.A. § 913 (a), provides that the right to compensation for disability under the chapter shall be barred unless a claim therefor is filed within a year after the injury and the right to compensation for death shall be barred unless the claim is filed within one year after the death, except where payment of compensation has been made without an award on account of such injury or death, in which event a claim may be filed within one year after the date of the last payment. Section 14(m), 33 U.S.C.A. § 914(m), provides that "the total compensation payable under this chapter for injury or death shall in no event exceed the sum of $7,500." It is appellant's contention that the two rights, one for compensation for injury and one for death ensuing, must be combined, and that the maximum allowance for both shall not exceed $7,500. But the disability benefits fixed by section 8 of the act and the right of the widow to death benefits under section 9 are different. They have different claimants thereto; one arising in the event of injury not resulting in death and the other arising only in the event of death. They were separately provided for by separate sections of the act and accrue on different bases. The amount to which the widow or next of kin is entitled is for their exclusive

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benefit and is entirely separate and distinct from the compensation for disability allowed the employee. The amount is in no way affected by the fact that the employee received compensation for disability up to the time of his death. As used in section 14(m), the word "or" is a disjunctive particle signifying an alternative. The phrase "for injury or death," as used, means that the $7,500 thereunder limits separately the amount of compensation which may be paid for disability and the amount which may be paid for death. To read it otherwise would be to say that, where the employee prior to death suffered prolonged disability, the rights of his widow and minor children and dependent relatives to death benefits as set forth in section 9 would be impaired or entirely defeated. The one right cannot defeat the other. The separation of the awards in the statute indicates that Congress intended this purpose. Section 9 is entitled "Compensation for death," and says: "If the injury causes death, the compensation shall be known as a death...