Maryland Casualty Co. v. Lawson
| Citation | 94 F.2d 190 |
| Decision Date | 20 January 1938 |
| Docket Number | No. 8616,8622.,8616 |
| Parties | MARYLAND CASUALTY CO. et al. v. LAWSON, Deputy Commissioner, et al. COLUMBIA CASUALTY CO. v. SAME. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E. B. Kurtz, Wm. L. Reed, and R. E. Sappenfield, all of Miami, Fla., for appellants.
Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Lloyd C. Hooks, Asst. U. S. Atty., of Miami, Fla., for Richard P. Lawson, Deputy Commissioner.
Dewey Knight and Roger Edward Davis, both of Miami, Fla., for the other appellees.
In case No. 8622:
Dewey Knight, of Miami, Fla., for appellant.
Herbert S. Phillips, U.S. Atty., of Tampa, Fla., and Lloyd C. Hooks, Asst. U. S. Atty., of Miami, Fla., for appellee Richard P. Lawson, Deputy Commissioner.
E. B. Kurtz, W. L. Reed, R. E. Sappenfield, and Roger Edward Davis, all of Miami, Fla., for other appellees.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
The appellants, as insurance carriers for the Arundel Corporation, were held to pay compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., for the death of one Timothy Burrows. Their several suits to set aside the award failed, and these appeals followed. A single question, common to both appeals, needs decision; to wit, Was Burrows an employee within the act, so that the Deputy Commissioner had jurisdiction? This is a question on which his fact findings are not conclusive. Crowell v. Benson, 285 U.S. 22, 24, 52 S.Ct. 285, 286, 76 L.Ed. 598.
The act, so far as material, provides, section 903 (a), 33 U.S.C.A.: Burrows was drowned while unloading a scow about three miles off the harbor of Miami in the Gulf Stream. The occurrence was within the admiralty jurisdiction of the United States. There is no state compensation law in Florida. We put aside the contention that the occurrence was actually more than three miles from land, and for that reason not "upon navigable waters of the United States," and we pass to the question whether Burrows was an employee under the act or excepted from it as "a member of the crew of any vessel."
The word "vessel" generally includes "any description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C.A. § 3. We attempt no definition of the crew of a vessel. Who are included was discussed recently, from different standpoints, in De Wald v. B. & O. R. Co., 4 Cir., 71 F.2d 810, and Wandtke v. Anderson, 9 Cir., 74 F.2d 381. There is implied a definite and permanent connection with the vessel, an obligation to forward her enterprise and to protect her in emergency, and a right to look to her and her earnings for wages. If she has a master, there is subjection to his commands. The nature of the work done is not determinative. Engineers and cooks as well as sailors are included. Longshoremen who load and unload a vessel under temporary local employment do not become members of the crew, nor do mechanics who similarly come aboard her to repair or clean or paint her; nor do those permanently employed upon her cease to be members of the crew because they are put at the same sort of work.
The evidence is in no conflict. Burrows was employed for the Arundel Corporation, which owned a large seagoing...
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