Kibadeaux v. Standard Dredging Co.

• Citation: 81 F.2d 670
• Decision Date: 29 February 1936
• Docket Number: No. 7929.,7929.
• Parties: KIBADEAUX v. STANDARD DREDGING CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

81 F.2d 670 (1936)

KIBADEAUX v. STANDARD DREDGING CO.

No. 7929.

Circuit Court of Appeals, Fifth Circuit.

February 3, 1936.

Rehearing Denied February 29, 1936.

H. C. Hughes and J. W. Lockhart, both of Galveston, Tex., for appellant.

Byron Economidy, of Galveston, Tex., for appellee.

Before FOSTER, SIBLEY, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

Kibadeaux libeled the steam dredge Burlington in admiralty for a personal injury. On stipulated facts the libel was dismissed for want of jurisdiction. The question on this appeal is whether a deck hand on a dredge engaged in cleaning the slips in Galveston harbor navigated by ships in interstate and foreign commerce, who was injured while at work by defects in the appliances of the dredge, may libel the dredge in admiralty, or must claim under the Federal Longshoremen's and Harbor Workers' Act (33 U.S.C.A. § 901 et seq.), or under the State Employees Compensation Act (Vernon's Ann.Civ.St.Tex. art. 8306 et seq.); he having applied for compensation under the last-named act and received some of it, but the payment being voluntary and not under an award or by virtue of any contract of settlement. The District Court held that the Texas law applied.

The first defensive contention to be considered is that the libelant Kibadeaux, whatever his original right may have been, is now estopped to claim otherwise than under the state Compensation Law. The apposite facts are that he was injured September 5, 1934; his employer, Standard Dredging Company, reported the accident to the State Industrial Accident Board on September 17; the board mailed out claim blanks the next day; and Kibadeaux, being still in the hospital, filled them out and returned them on October 2d. On October 15th, the board gave notice of the claim to the insurance carrier, and stated it would set the matter for hearing unless payments were begun within twenty days. The carrier reported a first payment on October 22d. It thereafter until September 4, 1935, regularly honored weekly drafts, seemingly drawn by the employer, for the amount which would be owing under the state law, about $600 being paid for 52 weeks. Payments for 400 weeks would be due under the law for a permanent injury. Meanwhile, on Jan. 7, 1935, counsel employed by Kibadeaux wrote to a representative of the carrier, stating his employment to prosecute the matter before the board or in the courts, but that Kibadeaux was then satisfied with what he was receiving; "however, we ask that you do not make any change in the plan of liquidating any liability the carrier may have until you first give us some notice. If there is any change that we or Mr. Kibadeaux desire, we will of course communicate with you personally prior to taking any action before the Board." The same counsel, without more, brought the libel on August 1, 1935. We find nothing here to estop Kibadeaux from asserting his remedy in admiralty, if he has one. His employer, Standard Dredging Company, who has claimed the dredge as charterer and is now litigating with him, really fathered the activity before the Industrial Accident Board by reporting the accident to it. The board has never taken any action whatever on the claim filed upon the blanks it sent to Kibadeaux. There was no hearing, no award, no compulsion of payment. The employer through its arrangements with its insurer has made payment of $600 to Kibadeaux on account of his injury, but not upon any contract of settlement or as a final accord and satisfaction. The payments are, like any others made pending suit, to be credited on the claim. There was no abandonment by the employer and his insurer of the right to contest the claim of Kibadeaux, and no obligation assumed to continue the payments. The letter of Kibadeaux's counsel shows that each party was supposed to be free at any time to upset the legal armistice. Neither contract nor adjudication stood in the way. Even where there had been an agreement for compensation approved by the commissioner and payments made under it there was held to be nothing to prevent an action if the injury were truly not under the commissioner's jurisdiction. Hoffman v. New York, etc., Railroad Co. (C.C.A.) 74 F.(2d) 227, citing Larscy v. T. Hogan & Sons, 239 N.Y. 298, 146 N.E. 430.

The question therefore recurs whether Kibadeaux has a remedy in admiralty in view of the state Compensation Act and the Longshoremen's Act. The competition between these three jurisdictions often presents a puzzle. The agreed facts show that Standard Dredging Company had taken proper steps to place itself under each of the two last-named acts so far as they may be applicable, and it appears that their dredging operations included from time to time not only work in established waterways, but also the making of new ones. The latter kind of work done by a dredge, as well as that done merely to improve the shore, this court has held not to be so related to navigation as to bring employees while engaged in it under admiralty jurisdiction. United Dredging Co. v. Lindberg (C.C.A.) 18 F.(2d) 453; Fuentes v. Gulf Coast Dredging Co. (C.C.A.) 54 F. (2d) 69. Indeed, injuries occurring on waters which are to become navigable after the dredge cuts a channel, but which have never been navigated before, could hardly be said to occur on navigable waters at all. The cited cases, however, were rested on the vexing distinctions made in Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 61 L.Ed. 1086, L.R. A. 1918C, 451, Ann.Cas.1917E, 900, and since maintained by the Supreme Court, by which the admiralty jurisdiction over injuries on navigable waters may be intruded upon by state compensation laws if they do not contravene the essential purpose of an act of Congress or work material prejudice to the characteristic features of the general maritime law or interfere with the harmony and uniformity of that law in its international or interstate relations. What part the idea may play that Compensation Acts especially elective ones like that of Texas, enter into the contract of employment and amount to an agreement in advance to settle for injuries according to those acts, has not been fully determined in the federal courts. An elective Compensation Act was held to follow the employment into another state, and to afford the employer a defense in a suit in such other state for an injury suffered there, in Bradford Electric Light Co. v. Clapper, 286 U. S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L. R. 696. This court discussed this power of an elective statute to follow the employment into another jurisdiction in Ford, Bacon & Davis v. Volentine (C.C.A.) 64 F. (2d) 800. The Supreme Court of Texas in Millers' Indemnity Underwriters v. Boudreaux, 261 S.W. 137, emphasized the elective and contractual character of the Texas Compensation Act, and held it to accompany a diver when he descended into navigable waters to inspect the piling of an abandoned shipway. The case was affirmed without discussion of the contractual element of the act as Miller's Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470. The Texas act was again involved in Employers' Liability Assurance Corporation v. Cook, 281 U.S. 233, 50 S.Ct. 308, 309, 74 L.Ed. 823. Cook's general employment was on land, and under the Texas act, and he claimed compensation under it for an injury received on navigable waters while he was temporarily engaged in unloading a ship. The Longshoremen's Act had not been passed. The Supreme Court held the state act did not follow Cook in his temporary work upon the ship, saying: "Under the circumstances disclosed, the state lacked power to prescribe the rights and liabilities of the parties growing out of the accident. The fact that the Compensation Law of the state was elective in form does not aid the respondents. The employer did not surrender rights guaranteed to him by the federal law merely by electing to accept one of two kinds of liability in respect of matters within the state's control, either of which she had power to impose upon him." Three justices concurred solely on the ground that Cook, when employed in unloading the ship, was a seaman within section 33 of the Merchant Marine Act, 46 U.S.C.A. § 688, and that state legislation was excluded as to persons within the scope of that act. It appears to be settled that the cited section of the Merchant Marine Act did deal generally with the rights of injured seamen, giving them new rights and remedies and modifying the admiralty law of the United States, whether administered in a Court of Admiralty or at the seaman's election in a court of common law. Lindgren v. United States, 281 U.S. 38, 40, 50 S.Ct. 207, 74 L.Ed. 686; Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 317, 324, 47 S.Ct. 600, 71 L.Ed. 1069. Where it applies, state statutes are excluded. Lindgren v. United States, supra. If that act does not directly deal with the seaman's ancient right to libel his ship for injury caused by her unseaworthiness, it certainly has not prejudiced it. See Baltimore & Ohio R. R. Co. v. Zahrobsky (C.C.A.) 68 F.(2d) 454. The later act of Congress,...