Michigan Mutual Liability Co. v. Arrien

• Citation: 344 F.2d 640
• Decision Date: 05 April 1965
• Docket Number: No. 326,Docket 29241.,326
• Parties: MICHIGAN MUTUAL LIABILITY CO. and Pittston Stevedoring Corp., Plaintiffs-Appellants, v. Phillip ARRIEN, Deputy Commissioner, Second Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Isidoro Parisi, Defendants-Appellees. Local 1291, International Longshoremen's Association, Philadelphia, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

344 F.2d 640 (1965)

MICHIGAN MUTUAL LIABILITY CO. and Pittston Stevedoring Corp., Plaintiffs-Appellants, v. Phillip ARRIEN, Deputy Commissioner, Second Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Isidoro Parisi, Defendants-Appellees.

Local 1291, International Longshoremen's Association, Philadelphia, Amicus Curiae.

No. 326, Docket 29241.

United States Court of Appeals Second Circuit.

Argued March 2, 1965.

Decided April 5, 1965.

Rehearing and Rehearing Denied, April 29, 1965.

COPYRIGHT MATERIAL OMITTED

James B. Magnor, of Kirlin, Campbell & Keating, New York City (Charles N. Fiddler, Alexander P. Gillen, New York City, on the brief), for plaintiffs-appellants.

Angelo C. Gucciardo, of Israel, Adler, Ronca & Gucciardo, New York City, for defendant-appellee Parisi.

Morton Hollander, Dept. of Justice, Washington, D. C. (John D. Douglas, Asst. Atty. Gen., Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, David L. Rose, Dept. of Justice, on the brief), for defendant-appellee Arrien.

Abraham E. Freedman and Avram G. Adler, of Freedman, Borowsky & Lorry, Philadelphia, Pa., for amicus curiae.

Before MOORE, KAUFMAN and HAYS, Circuit Judges.

Rehearing and Rehearing in Banc Denied, April 29, 1965.

KAUFMAN, Circuit Judge.

The issue on this appeal is a narrow one — whether to set aside a compensation award to a stevedore, Isidoro Parisi, based upon an administrative finding that he was injured "upon the navigable waters of the United States" within the meaning and coverage of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 903(a).

The employer, Pittston Stevedoring Corp., and its compensation underwriter, Michigan Mutual Liability Co., brought this action in the District Court against Parisi and Arrien, the Deputy Commissioner of the Second Compensation District, Bureau of Employees Compensation, United States Department of Labor, seeking to enjoin enforcement of the award. 33 U.S.C. § 921(b). Rejecting the contention that the injury giving rise to the claim was not covered by the Act, Judge Palmieri sustained the administrative determination. He granted the Deputy Commissioner's and Parisi's motion for summary judgment and denied plaintiffs' motion for the same relief. From the judgment entered on the Court's order, Pittston and Michigan Mutual appeal.

Although the legal precepts are sharply contested, the basic facts are undisputed. On September 4, 1963, Parisi, a longshoreman employed by Pittston, was helping discharge cargo from the S.S. Copiapo at a pier in Brooklyn, N. Y. To provide additional and adequate working space for greater efficiency, the workers set up a "skid" — a removable wooden, rectangular platform, approximately six feet by ten feet — extending over the waters between the vessel and the wharf. The skid was necessary because the wharf's narrow stringpiece did not extend far enough beyond the shed to permit the stevedores to walk around the unloaded pallets. Three angle irons secured the onshore side of the skid to the pier and cables shackled to two ring bolts on the offshore side were attached to stanchions on the pier shed. When not in use, the skid was easily dismantled and stored on the wharf. The surface of the skid and the stringpiece were about twenty to twenty-five feet below the deck and the skid was not used to board the vessel. A safety net or "saveall," loosely strung between the bulwark of the ship and the outer edge of the skid, served to catch any cargo that might fall.

Parisi was working on the skid when a pallet suspended from the Copiapo's cables broke, spilling a draft of cargo onto the skid and into the water. A bronze case struck Parisi's leg and knocked him into the water. Although saved from drowning by a fellow longshoreman, Parisi suffered totally disabling injuries to his shoulder, head, leg and foot. Treating the accident as though it had occurred on land, Pittston and Michigan Mutual commenced paying the maximum rate of compensation under the New York Workmen's Compensation Law — $55. per week. And when Parisi filed a claim for compensation under the federal Longshoremen's Act, 33 U.S.C. § 901 et seq., they asserted that his only remedy was under the State Act. But the Deputy Commissioner, after a hearing, concluded that the Longshoremen's Act applied because the injury "was sustained upon the navigable waters of the United States." He then entered an award for $70. per week — the maximum rate of compensation payable under the Longshoremen's Act — during the continuation of Parisi's temporary total disability plus a lump sum of $630. to cover, retroactively, the difference between $70. per week and the $55. paid weekly under the State Act.¹ This action, seeking judicial review of the administrative decision, followed.

I.

The 1927 Longshoremen's and Harbor Workers' Compensation Act, like most statutes, cannot be considered in vacuo, but must be understood in the context of the judicial history which led to its passage. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), marks the genesis of that history. There, the Supreme Court concerned itself with the reach of a state compensation act, holding that such a statute could not be applied, constitutionally, to an injury suffered on a gangway running from a vessel on navigable waters to a pier. Considerations of uniformity, it said, required that jurisdiction to award compensation for such injuries be exclusively federal. Two successive Congressional attempts to allow the application of state law were struck down as improper delegations. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). At the same time, however, Jensen's absolute rule was modified by the "maritime but local" doctrine, which provided that state jurisdiction could extend to maritime activities which were of local as opposed to national concern. See 76 Harv.L.Rev. 96 (1962).

In part because these decisions produced "no reliable determinant of valid state law coverage," Calbeck v. Travelers Ins. Co., 370 U.S. 114, 118, 82 S.Ct. 1196, 1199, 8 L.Ed.2d 368 (1962), Congress passed the Longshoremen's and Harbor Workers' Compensation Act in 1927. Section 3(a) of the Act provides that "compensation shall be payable * * only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death * * * may not validly be provided by State law."

As we read the legislative history, the 1927 statute was intended to cover injuries incurred on temporary devices over navigable waters — such as skids or gangplanks. In this connection, it is pertinent that the Senate Judiciary Committee considering the Longshoremen's Act noted that

"injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States." Sen.Rep. 973, 69th Cong., 1st Sess., p. 16. (Emphasis added.)

The Act was designed to provide a federal compensation remedy for just that kind of injury where relief from the state might have seemed to be precluded by Jensen. Calbeck, supra, 370 U.S. at 120-122, 82 S.Ct. 1196. On the other hand, injuries upon wharves or other extensions of land permanently covering navigable waters were not to be covered. See Swanson v. Marra Bros., 328 U.S. 1, 7, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); cf. Wiper v. Great Lakes Engineering Works, 340 F.2d 727 (6 Cir. 1965).

The problem put squarely to us here, therefore, is whether, with the beneficent purposes of the Longshoremen's Act and the reasons for drawing a federal-state dividing line in mind, a skid extending over navigable water resembles more closely a gangway — temporarily bridging the space between vessel and pier — or a pier permanently removing the underlying water from navigation. In resolving this, we should eschew exclusive reliance on spatial dissections which ignore the objectives of the Act, and beware of

"the dangers of a `jurisprudence of conceptions\' * * * the extension of a maxim or a definition with relentless disregard of consequences to `a dryly logical extreme.\' * * * In such circumstances, * * * general maxims * * * framed alio intuitu * * * must be reformulated and readapted to meet exceptional conditions." Hynes v. New York Central R. R. Co., 231 N.Y. 229, 235-236, 131 N.E. 898, 900, 17 A.L.R. 803 (1921) (Cardozo, J.).

We are persuaded that the temporary skid was not part of, and should not be analogized to, the wharf. A wharf or pier is usually built on pilings over what was navigable water. When the structure is completed, the water over which it is built is permanently removed from navigation as if the structure had been in the first instance built on land. In contrast, a skid like a gangplank is not a permanent structure and the waters under both are as navigable as they would be if a ship were moored in the same space and then sailed. See, e. g., Boston Metals Co. v. O'Hearne, 329 F.2d 504 (4 Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); cf. Jeffers v. Foundation Co., 85 F.2d 24, 25 (2 Cir. 1936). The skid occupied the position above the water only temporarily; it was removed from its space over the water and stored until needed again, much like a gangplank. Cf. Hastings v. Mann, 340 F.2d 910, 911 (4 Cir. 1965), cert. denied, 85 S.Ct. 1106. While a gangplank might be thought different from a skid because it is customarily ship's equipment, to make ownership the determinative factor is to resort to a wooden criterion inappropriate to a compensation scheme. And, it is interesting in this connection to note that the Longshoremen's Act was held to apply to an injury on a gangway not owned by or kept on...