Keller v. United States

• Decision Date: 24 February 1983
• Docket Number: Civ. No. 81-549-D.
• Citation: 557 F. Supp. 1218
• Court: U.S. District Court — District of New Hampshire
• Parties: Steve V.B. KELLER v. UNITED STATES of America, owner of the Arthur M. Huddell, a United States Ship registered in Jacksonville, Florida; Simplex Wire & Cable Co.

557 F. Supp. 1218

Steve V.B. KELLER v.UNITED STATES of America, owner of the Arthur M. Huddell, a United States Ship registered in Jacksonville, Florida; Simplex Wire & Cable Co.

Civ. No. 81-549-D.

United States District Court, D. New Hampshire.

February 24, 1983.

Michael J. Donahue, Exeter, N.H., Douglas S. Carr, Philip C. Hunt, Dennett H. Buettner, Portland, Me., for plaintiff.

Stephen J. Dibble, Dover, N.H., Robert F. Hanson, Portland, Me., for Simplex.

Helen J. Forsyth, Asst. U.S. Atty., for U.S.

OPINION AND ORDER

DEVINE, Chief Judge.

Plaintiff was injured on November 5, 1979, while employed by defendantSimplex Wire & Cable Co.("Simplex") at its Newington, New Hampshire, riverside facility.He was injured while working aboard a vessel, The Arthur M. Huddell ("The Huddell"), which was loading cable at Simplex's pier.Plaintiff fell from a ladder in a cargo hold of the vessel and was seriously injured.

This action is brought in admiralty.The Court's jurisdiction is founded upon 28 U.S.C. §§ 1331,1332, and1333.The various causes of action are brought pursuant to the Suits in Admiralty Act, 46 U.S.C. § 741, et seq., and the Longshoreman and Harbor Workers' Compensation Act("LHWCA"), 33 U.S.C. § 901, et seq.

Background

Plaintiff filed his four-count complaint in this court on November 4, 1981, naming as defendants the United States of America and Simplex.¹Count I alleges that the United States is liable for the unseaworthy condition of the vessel which caused plaintiff's injury.Count II alleges that Simplex is liable for the unseaworthy condition of the vessel which caused plaintiff's injury.Count III alleges that the negligence of the United States caused plaintiff's injury.Count IV alleges that the negligence of Simplex caused plaintiff's injury.Plaintiff seeks money damages and requests trial by jury on all issues.

The United States defends on the ground, among others, that plaintiff under 33 U.S.C. § 933(b) lacks standing² and that the United States breached no duty, if any owed, to plaintiff.

The United States filed its motion for summary judgment and memorandum of law.It argues that plaintiff's action is barred by his acceptance of workers' compensation pursuant to 33 U.S.C. § 933(b).The United States further alleges that plaintiff's complaint fails to state a claim against the United States because the owner of a vessel is not liable for injury caused by a negligent stevedore and that the liability of the vessel to a longshoreman injured while loading a ship cannot be based upon unseaworthiness.

Simplex answered the complaint.It defends on the grounds that Simplex is not a "vessel" within the meaning of 33 U.S.C. § 905(b), i.e., under 33 U.S.C. § 902(21), which defines "vessel", and that Simplex is not the owner pro hac vice, agent, operator, charter, bareboat charterer, master, officer, or crew member of The Huddell.Simplex further claims that plaintiff lacks standing under 33 U.S.C. § 933(b).

Simplex filed its motion for summary judgment and memorandum of law on July 1, 1982.Simplex argues that it is not liable under 33 U.S.C. § 905(b) since Simplex was not the owner pro hac vice, operator, charterer, or agent of The Huddell.³Plaintiff objected and filed his memorandum of law.Simplex filed a reply memorandum.⁴

Summary Judgment Standards

Summary judgment is proper solely when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.Rule 56(c), Fed.R.Civ.P.;Condon v. Local 2944, United Steelworkers of America,683 F.2d 590, 594(1st Cir.1982).A dispute of fact is material when it affects the outcome of the litigation, and is genuine if made manifest by substantial evidence going beyond the allegations of the complaint.Pignons S.A. de Mecanique de Precision v. Polaroid Corporation,657 F.2d 482, 486(1st Cir.1981).In filing their motions for summary judgment, Simplex and the United States assume the burden of demonstrating that there is no genuine issue of material fact.White v. Hearst Corporation,669 F.2d 14, 17(1st Cir.1982);see alsoMack v. Cape Elizabeth School Board,553 F.2d 720, 722(1st Cir.1977).The Court must look at the evidence in the light most favorable to, and indulge all inferences in favor of, the party opposing the motion.Packish v. McMurtie,697 F.2d 23, 26(1st Cir.1983)(per curiam).

Motions by the United States

33 U.S.C. § 933(b)

The United States contends that plaintiff's action is barred by 33 U.S.C. § 933(b)⁵ because he accepted workers' compensation, did not bring this action within six months of acceptance, and consequently assigned his rights of action to his employer, Simplex.

The facts are not in dispute.The pertinent facts are found in the Affidavit of Steve V.B. Keller, and Relevant Additional Filings by the United States from the Plaintiff's Longshoremen's and Harbor Workers' Compensation Act claim file.

Plaintiff was injured on November 5, 1979.He was comatose for about one week and hospitalized for about five weeks.Subsequent to plaintiff's injury, Simplex completed U.S. Department of Labor("DOL") Form LS-202, Employer's First Report of Injury or Occupational Illness.The form was apparently received on November 9, 1979, by the DOL Office of Workers' Compensation Programs("OWCP").Simplex's workers' compensation insurance carrier, Aetna, paid disability benefits to plaintiff.Compensation was paid from the date of injury.The first payment date was November 11, 1979.Neither plaintiff nor his representatives initially either requested or refused the payments.On December 5, 1979, plaintiff by his attorneys notified DOL that pursuant to 33 U.S.C. § 912 Simplex had been given notice of plaintiff's injury and claim under the LHWCA.The letter expressed plaintiff's understanding that Aetna was presently making compensation payments to plaintiff.Plaintiff was discharged from the hospital on December 12, 1979.He subsequently filed Form LS-203, Employee's Claim of Compensation, with DOL.Aetna filed a Form LS-206, Payment of Compensation Without Award, on April 13, 1980.Aetna and Simplex by their attorneys filed Form LS-215, Answer to Claim for Compensation.The parties held an informal conference at DOL on March 31, 1982.OWCP issued a Memorandum of Informal Conference, LS-280, on April 28, 1982, and ordered that Simplex and Aetna "pay the claimant for a period of permanent total disability from 11-5-79 to date 4-28-82 & continuing".Relevant Additional Filings, Exhibit 6-2.

Under 33 U.S.C. § 933(b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman's rights against the third party unless the longshoreman sues within six months.Edmonds v. Compagnie Generale Transatlantique,443 U.S. 256, 269, 99 S.Ct. 2753, 2760, 61 L.Ed.2d 521(1979).The United States claims that because plaintiff received compensation payments from November 11, 1979, five days after the accident, this action, filed on November 4, 1981, more than six months after the payment and acceptance of benefits, is barred by 33 U.S.C. § 933(b).

Only two Circuit Courts have addressed the issue of when the six-month period begins, i.e., when an acceptance of compensation under an award takes place.The courts take markedly different approaches.CompareVerderame v. Torm Lines,670 F.2d 5(2d Cir.1982)("Verderame");D'Amico v. Cia de Nav. Mar. Netumar,677 F.2d 249(2d Cir.1982)("D'Amico")withSimmons v. Sea-Land Services, Inc.,676 F.2d 106(4th Cir.), cert. denied,___ U.S. ___, 103 S.Ct. 242, 74 L.Ed.2d 190(1982)("Simmons").⁶The United States Court of Appeals for the First Circuit and the district courts within the Circuit have referred to 33 U.S.C. § 933(b), see, e.g., Cella v. Partenreederei MS Ravenna,529 F.2d 15, 18(1st Cir.1975), cert. denied,425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 799(1976);United States Lines Company v. Jarka Corporation of New England,265 F.Supp. 811, 814(D.Mass.), modified387 F.2d 436(1st Cir.1967);Castro v. United States,230 F.Supp. 967, 968(D.P.R.1964), but have not faced the issue of when the six-month period begins.The Second Circuit holds that acceptance of compensation under an award does not occur "until the amount of compensation benefits to be received by the injured longshoreman is fixed, either by order, stipulation of the parties, or informal award".Verderame, supra,670 F.2d at 7.The Fourth Circuit holds that "`an award in a compensation order' is created by the completion of three events: (1) the employer, having not contravened its liability, initiates compensation payments to the longshoreman; (2) the deputy commissioner DOL files the employer's notice that compensation payments have been initiated; and (3) the longshoreman accepts any of the payments".Simmons, supra,676 F.2d at 109.Upon careful review of the judicial interpretations of the statute,⁷ and the statute's legislative history,⁸the Court finds that plaintiff's action is not barred.

The dominant intent of Congress in enacting the LHWCA was to help longshoremen.Reed v. The Yaka,373 U.S. 410, 415, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448(1963).Congress knew that longshoring is dangerous.⁹The legislative history of the LHWCA, e.g.,33 U.S.C. § 933(b), supra, reflects the vigilant concern by Congress that the longshoreman be protected.In order to advance the intent of Congress, the Court has found that the LHWCA "must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results".Reed v. The Yaka, supra, quotingVoris v. Eikel,346 U.S. 328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5(1953).

In view of the legislative history and purpose of the Act, see generally Director, Office of Workers' Compensation Programs, United States Department of...