Lowe v. Central R. Co. of New Jersey, 7306.
| Decision Date | 29 June 1940 |
| Docket Number | No. 7306.,7306. |
| Citation | 113 F.2d 413 |
| Parties | LOWE et al. v. CENTRAL R. CO. OF NEW JERSEY. |
| Court | U.S. Court of Appeals — Third Circuit |
Francis M. Shea, Asst. Atty. Gen., Melvin H. Siegel, Sp. Asst. to Atty. Gen., Oscar H. Davis, Atty., Department of Justice, of Washington, D. C., and William F. Smith, Acting U. S. Atty., and Thorn Lord, Asst. U. S. Atty., both of Trenton, N. J., for appellant Lowe.
Thomas J. Armstrong, of Jersey City, N. J., for appellant O'Keefe.
Coult, Satz & Tomlinson, of Newark, N. J. (DeVoe Tomlinson, of Newark, N. J., of counsel), for appellee.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
John O'Keefe was employed at Jersey City by the Central Railroad Company of New Jersey as a float watchman. On September 20, 1937 he reported for work at 3 o'clock P. M. and was assigned to the Baltimore & Ohio car float No. 173, which was loaded and moored to pier 9 of the Erie Railroad in Jersey City. Whether he went to the float is unknown but at 7:25 o'clock P. M. when the float was towed away he was not on or near it. Between 9 and 9:30 o'clock P. M. he was in the Erie Railroad Company office, which is located 500 feet south of pier 9, and which float watchmen commonly use to receive and send telephone messages in connection with their work. Here he was sent on an errand by the Erie yardmaster on some matter unrelated to his own duties as float watchman for the Central Railroad. He returned to the Erie office and then left it at some time between 9:30 and 10 o'clock P. M. At that hour he was seen by a watchman on pier 9, going towards the river end of the pier, where several floats were lashed together, side by side, extending out from the pier toward the center of the river. O'Keefe had not been assigned to any of these floats. He told the watchman he was coming back soon. About 10:05 o'clock P. M. the captain of a tug which was off pier 8, about 100 to 200 feet from pier 9, heard a feeble call for help. The searchlight of another tug played upon the water about the third or fourth float from the end of the pier and the captain then "saw a hand trying to grab onto something," but before assistance could be rendered the hand disappeared into the water. There were no Baltimore & Ohio or Central Railroad floats at or near this point. The body of O'Keefe was recovered from the water near pier 5 in Hoboken on September 26, 1937. Death was due to drowning.
According to the railroad's custom float watchmen worked eight hour shifts and were paid on that basis whether or not there was work to occupy the full eight hours. It was the duty of a float watchman to stay by the float assigned to him until it had been towed away and then to report for orders to the crew dispatcher. The deceased had been informed of this rule but did not comply with it on the day involved.
From these evidentiary facts the deputy commissioner of the United States Employees' Compensation Commission found that O'Keefe's death resulted from injuries which occurred upon navigable waters of the United States and arose out of and in the course of his employment. The deputy commissioner concluded that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., was applicable and entered a compensation order in favor of the mother of the deceased and her two dependent children. The Central Railroad Company of New Jersey, following the procedure outlined in Section 21 of the Act, 33 U.S.C.A. § 921, filed a bill of complaint in the District Court for the District of New Jersey to set aside this order. The court determined that the evidence did not sustain either finding of the deputy commissioner and entered a decree setting aside the order and enjoining its enforcement. It is from that decree that the deputy commissioner and the mother of the deceased have appealed.
Although the Act has been construed to empower the district court on petition of either party to try the fundamental and jurisdictional issues as to the locality of the injury and the relation of master and servant de novo (Crowell v. Benson, 285 U. S. 22, 54, 52 S.Ct. 285, 76 L.Ed. 598), the claimant in the present case made no such application. Consequently the duty of the district court was limited to...
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