Michigan Mutual Liability Company v. Arrien

• Decision Date: 10 September 1964
• Citation: 233 F. Supp. 496
• Parties: MICHIGAN MUTUAL LIABILITY COMPANY, Insurance Carrier, and Pittston Stevedoring Corporation, Employer, Plaintiffs, v. Phillip F. ARRIEN, Deputy Commissioner Second Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Isidoro Parisi, Defendants.
• Court: U.S. District Court — Southern District of New York

233 F. Supp. 496

MICHIGAN MUTUAL LIABILITY COMPANY, Insurance Carrier, and Pittston Stevedoring Corporation, Employer, Plaintiffs, v. Phillip F. ARRIEN, Deputy Commissioner Second Compensation District, Bureau of Employees Compensation, United States Department of Labor, and Isidoro Parisi, Defendants.

United States District Court S. D. New York.

September 10, 1964.

Kirlin, Campbell & Keating, New York City, for plaintiffs; James B. Magnor and Alexander P. Gillen, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, for the United States; Leavenworth Colby, Chief, Admiralty & Shipping Section, and Louis E. Greco, Atty. in Charge, Admiralty & Shipping Section, Dept. of Justice, of counsel.

Israel, Adler, Ronca & Gucciardo, New York City, for Isidoro Parisi; Angelo C. Gucciardo, New York City, of counsel.

PALMIERI, District Judge.

The plaintiffs move for summary judgment pursuant to Fed.R.Civ.P. 56. Their action seeks to permanently enjoin enforcement of a compensation award of the Deputy Commissioner. 33 U.S.C. § 921(b). The defendants cross-move for summary judgment.

The Facts

There is no substantial dispute as to the facts giving rise to the compensation award.

On September 4, 1963, Isidoro Parisi, a longshoreman employed by the Pittston Stevedoring Corporation, was injured while discharging cargo from the S.S. Copiapo as a member of a longshoremen's gang. At the time of the accident, he was working on a "skid" — a removable platform approximately six feet by ten feet — which was attached to the dock. It extended out over the water and towards the ship some twenty to twenty-five feet below the deck, its outer edge short of the side of the vessel. The skid was necessary because the stringpiece of the dock was too narrow. It did not extend far enough beyond the shed to permit men working there to walk around the pallets as they were unloaded from the ship.

The skid was attached to the pier by two overhead cables, extending from the superstructure of the pier to its offshore corners. The onshore side of the skid was secured to the stringpiece of the dock by three angle irons affixed to the stringpiece.

A safety net, called a "saveall", was strung between the skid and the vessel. It was designed to catch any cargo that might fall during the unloading operations. The bottom of the net was secured by means of three lines to the offshore side of the skid, while the top of the net was attached by three lines to cleats which were located on the deck of the vessel.

While Parisi was working on the skid, and while a draft of the ship's cargo was being lowered with the use of the ship's equipment, the pallet on which the cargo had been placed suddenly broke, causing the cargo to spill. Parisi was struck on the leg by a bronze case and knocked into the water. He sustained multiple injuries.

Parisi filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act (the Act), 33 U.S.C. § 901 et seq. The Deputy Commissioner found "the employee's injury was sustained upon the navigable waters of the United States and as the employer had other employees engaged in maritime employment upon the navigable waters of the United States, the employee's injury comes within the purview of the Longshoremen's and Harbor Workers' Compensation Act." He awarded Parisi $70 per week.¹

The Legal Background before the Act

This case once again poses the problem of the "ambiguous — amphibious" maritime worker. See Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 44 (5th Cir. 1960). The old adage that a page of history is worth a volume of logic is most apt.

Any discussion of the problems in this area must begin with the well known case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), a case which soon became entangled in serious difficulties of application. In that case the Supreme Court held that a state compensation act could not, constitutionally, be applied to an injury suffered upon a gangway running from a vessel on navigable waters to a dock. Such matters were held to be outside state cognizance and exclusively within federal maritime jurisdiction because of the need for uniformity which the constitutional grant of the admiralty power to the Federal Government was meant to assure. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 117, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962).

The net result of the Jensen case was to deprive shore-based maritime workers of the benefits of workmen's compensation. State law could not apply and, at the time, no federal act had been adopted. Congress acted quickly to correct this state of affairs. Twice it adopted legislation to allow the application of state law, but each time the Supreme Court struck down the statute as an improper delegation to the states of congressional power. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924).

In the meantime, the Court itself began to conjure with the legal vacuum that had been created and to alleviate somewhat the plight of the longshoremen. It fashioned the "maritime but local" doctrine which provided that state compensation acts and wrongful death acts could validly extend to maritime activities which were of local as opposed to national concern. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921); The Supreme Court, 1961 Term, 76 Harv.L.Rev. 75, 96 (1962); Gilmore & Black, Admiralty 346-7 (1957). As Justice Brennan said in the recent Calbeck opinion, however, "* * * we must candidly acknowledge that the decisions between 1917 and 1926 produced no reliable determinant of valid state law coverage." Calbeck v. Travelers Ins. Co., supra, 370 U.S. at 118, 82 S.Ct. at 1199 (1962).

Adoption of the Act

In 1927, with the law in this turbid state, Congress passed the Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 901 et seq., the Act in question here. The prime motivation, of course, was to fulfill an acute need which Jensen had created. Protection of one form or another was now to be afforded to all longshoremen, or so it was hoped. Also, as the Calbeck opinion implies, there existed a desire for that ever-important, but frequently lacking, quality of certainty in the law.

The pertinent section, 33 U.S.C. § 903(a), reads as follows:

"Compensation shall be payable under this chapter in respect of disability or death of an employee, but 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 through workmen's compensation proceedings may not validly be provided by State law."

It will be noted that Congress still accorded the state law as large a role as possible. See Gilmore & Black, Admiralty 346 (1957).

Early Interpretation of the Act

Although the protection which Congress desired for the injured longshoremen was successfully provided, the clarity which the statute was designed to supply was not. The section was construed as a codification of the dividing line between state and federal power drawn by Jensen and its progeny. "It proved difficult, however, to develop `maritime but local' into a meaningful standard, with the result that each new fact situation in the area where the line between federal and state authority was unclear could require extensive litigation to determine the proper source of compensation." The Supreme Court, 1961 Term, 76 Harv.L.Rev. 75, 96 (1962).

The "Twilight Zone"

The confusion was such that the Court decided to adopt a different approach to the problem. In the case of Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), which involved a structural steel worker engaged in dismantling a drawbridge, Justice Black declared that the confusion was unjust to employees and employers alike. His solution was one "which has ever since astonished, bewildered and occasionally outraged the legal profession." Gilmore & Black, Admiralty 349 (1957).

Justice Black said:

"There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.

"Faced with this factual problem we must give great — indeed, presumptive — weight to the conclusions of the appropriate federal authorities and to the state statutes themselves." Davis v. Department of Labor and Industries, supra at 256 of 317 U.S., at 229 of 63 S.Ct.

In effect, coverage was presumed, whichever law — state or federal — was invoked below. A review of the post Davis cases reveals that invariably, whichever route the injured longshoreman chose, his recovery was upheld if his case fell within the twilight zone. The twilight zone was exceedingly broad. See, e. g., Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953); Baskin v. Industrial Acc. Comm'n, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949); Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948).

This use of a presumptive coverage in order to skirt the troublesome "maritime but local" question was successful in alleviating the problem of proper choice of jurisdiction for the injured worker. See The Supreme Court, 1961 Term, 76 Harv.L.Rev. 75, 96 (1962). The legal basis of the decision remained cloudy, however. Justice Frankfurter admitted that the solution contained a degree of "theoretic illogic". Davis v. Department of Labor and Industries, supra at 259 of 317 U.S., at 230 of 63 S.Ct. (concurring opinion)....