Moore Dry Dock Co. v. Pillsbury

• Citation: 100 F.2d 245
• Decision Date: 30 November 1938
• Docket Number: No. 8792.,8792.
• Parties: MOORE DRY DOCK CO. v. PILLSBURY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F.2d 245 (1938)

MOORE DRY DOCK CO. v. PILLSBURY et al.

No. 8792.

Circuit Court of Appeals, Ninth Circuit.

November 30, 1938.

Emmet Cashin and Harold M. Sawyer, both of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal., for appellee Warren H. Pillsbury.

Before GARRECHT and HANEY, Circuit Judges, and ST. SURE, District Judge.

GARRECHT, Circuit Judge.

This suit was brought by appellant, Moore Dry Dock Company, to set aside an award made by appellee, Warren H. Pillsbury, Deputy Commissioner of the United States Employees' Compensation Commission for the 13th Compensation District, under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and for a temporary and permanent injunction to enjoin the enforcement of said award.

On March 21, 1936, William H. Howland, husband and father of appellees, Margaret and Kenneth Howland, while performing services for appellant as an employee aboard its certain power launch or tug, known as the "Moore No. 2," then lying on the navigable waters of the United States at appellant's shipyard, sustained personal injury occurring in the course of and arising out of his employment and resulting in his death, in that, while making some repairs on the deck of the launch to certain of its equipment, he fell into the water and was drowned.

Relative to decedent's employment, the following appears:

Moore Dry Dock Company, a self-insurer, was engaged in the operation of a ship building and ship repair plant situated on the Oakland Estuary, in the County of Alameda, State of California. In the course of the conduct of its business appellant operated the "Moore No. 2" for the purpose of assisting vessels in and about appellant's shipyard and on and off drydock and in occasional errands for its employer only about San Francisco Bay.

The "Moore No. 2" required for its operation two men, one of whom was Captain Marshall and the other Howland. Howland's duties — handling lines, mooring and unmooring the launch, keeping it clean, making small repairs, serving on it while assisting ships entering or leaving the drydock — were severally characterized as those of a deckhand. The "Moore No. 2" never went to sea but in its occasional trips about San Francisco Bay had gone as far as South City, South San Francisco, hauling pipes, and had been on inland waterways as far as Stockton.

Deceased had been employed by the Moore Dry Dock Company for several years and had been carried on the payroll as a rigger and was paid at an hourly rate for such work as was available for him in appellant's shipyard at rigger's wages. However, most of his working time was in connection with the launch, although infrequently he was given work as a rigger on land, not in connection with said launch.

Howland ate and slept at home as there were no accommodations therefor on the launch, usually worked an eight hour day but occasionally worked overtime and was paid for the additional hours. When work was slack he was laid off. His time was kept in the office on the dock.

On March 21, 1936, while thus employed, Howland met his death. No one saw the accident, Captain Marshall testified that he had left the launch for a short time and when he returned Howland was not on the boat. His body was taken from the estuary three days later.

The Deputy Commissioner made a finding to the effect that "the employment of said employee was essentially that of a harbor worker and not that of a seaman as said term is used in the Longshoremen's and Harbor Workers' Compensation Act and that he was not a member of the crew of the vessel at the time of his injury and death", and entered an award in favor of appellees, Howland. Appellant thereupon filed its complaint in equity in the United States District Court for a decree suspending the award and for the issuance of an injunction restraining the enforcement of the compensation order and award of compensation. Appellant also sought a temporary injunction pending final determination of the cause. On November 22, 1937, the District Court entered a final decree affirming its earlier order denying appellant's application for a temporary injunction, dismissing appellant's complaint and supplemental complaint and affirming the award of the Deputy Commissioner. From this decree the present appeal is taken.

The Longshoremen's and Harbor Workers' Compensation Act, § 3, 33 U.S.C.A. § 903, provides:

"(a) 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. No compensation shall be payable in respect of the disability or death of —

"(1) A master or member of a crew of any vessel, * * *."

The question here raised is, whether decedent Howland, at the time of his death, was an employee under the Act or excepted from it as a "member of a crew of any vessel."

Appellant, in its brief, contends that: "The `Moore No. 2' was, at the time of...