Morrison-Knudsen Company v. O'LEARY
| Decision Date | 20 March 1961 |
| Docket Number | No. 16896.,16896. |
| Parties | MORRISON-KNUDSEN COMPANY, Inc., Appellant, v. J. J. O'LEARY, Deputy Commissioner, 14th Compensation District, Under the Longshoremen & Harbor Workers' Compensation Act, U. S. Department of Labor, Bureau of Employees Compensation and Dana M. Emig, for Herself and on behalf of Susan Marie and Kristine Marie Emig, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert T. Mautz, Kenneth E. Roberts, Portland, Or., and Thomas L. Smith, Boise, Idaho, for appellant.
George Cochran Doub, Asst. Atty. Gen., Alan S. Rosenthal and Donald H. Green, Washington, D. C., Kenneth G. Bergquist, U. S. Atty., Boise, Idaho, for appellees.
Bailey, Lezak, Swink & Gates, Portland, Or., for intervenors.
Before HAMLEY and MERRILL, Circuit Judges, and WOLLENBERG, District Judge.
This case involves the death of four workmen employed by appellant in the construction of the Brownlee Dam on the Snake River, which at the point of construction runs between the states of Idaho and Oregon. The dam construction was authorized by the Federal Power Commission "in the interest of navigation."
During construction a diversion tunnel was constructed; this tunnel took the entire flow of the Snake River from its normal channel and carried it around the dam site during the period of construction of the dam itself. This tunnel, for several months, was the actual bed of the stream. Later, gates with open grilles were placed at the upstream entrance of the tunnel to allow a portion of the water to flow to the dam, and thus build up a pool behind the dam, at the same time allowing a portion of the water to go into the river via the tunnel, and thus maintain the downstream flow of the Snake. This continued until the level of water behind the dam became sufficiently high so that the required water could pass downstream via the spillway of the dam. When this occurred the appellant attempted to close the tunnel flow of water by blocking off the grilles at the tunnel entrance by dumping rock and fill. This process of dumping was eventually designed to close off the entire flow of water into the tunnel. At the time of the deaths, approximately one-twentieth of the entire river water continued to flow into the tunnel by seeping through the rock fill.
The four deceased workmen had entered the diversion tunnel in a boat to accomplish work eventually designed to effect a complete closing off of the flow of all waters into the tunnel. It was while engaged in this work that the four workmen lost their lives by drowning.
The deputy commissioner, on these facts, after hearing, awarded payments under the Longshoremen's and Harbor Workers' Compensation Act to the claimants. He specifically found the deaths arose out of the workers' employment, that a portion of the Snake River, a navigable body of water, was flowing through the diversion tunnel at the time of the accident, that appellant contractors used a number of boats during construction of the dam, and that the claims herein were timely filed. The appellant then filed in the United States District Court for the District of Idaho a "Petition for Injunction." This petition sought a decree holding the commissioner's compensation order unlawful, and setting it aside, and enjoining its enforcement. The United States District Court denied a motion for a trial de novo and denied the relief sought, affirming the award of the deputy commissioner as supported by substantial evidence.
(1) Appellant contends that the trial court erred in denying it a trial de novo.
It agrees that the record before the deputy commissioner is complete and contains all of the evidence that could be adduced at any hearing on this case; in other words, a de novo hearing before the reviewing court would have produced no more factually than the court had before it in the record of hearing before the deputy commissioner. There is, therefore, no showing that any worthwhile purpose would have been served by a hearing de novo in the district court on review of the commissioner's order.
This court has on two occasions refused to require de novo hearings on review, and in each case has refused to distinguish between questions of fact that may be said to be "fundamental" or "jurisdictional." Thus it can be...
To continue reading
Request your trial
-
Martorano v. Hughes
...the federal court should determine such an issue upon its own record and the facts elicited before it.'" 4 V. Morrison-Knudsen Company v. O'Leary, 288 F.2d 542 (9th Cir. 1961), cert. denied, 368 U.S. 817, 82 S.Ct. 33, 7 L.Ed.2d 24; O'Leary v. Dielschneider, 204 F.2d 810 (9th Cir. 1953); Wes......
-
Consolo v. Federal Maritime Commission
...(1958). See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652; Morrison-Knudsen Co. v. O'Leary, 9 Cir., 288 F.2d 542, 543—544. 18 Although these two cases were decided before the enactment of the Administrative Procedure Act, they are conside......
-
Trotti & Thompson v. Crawford
...Act, we are confident that these structures were as peculiarly maritime as any drydock, then and now. Cf. Morrison-Knudson Co. v. O'Leary, 288 F.2d 542, 1961 A.M.C. 866 (9th Cir. 1961) (construction of a dam). Certainly the work, and the attendant risk, of constructing a dry dock and a pier......
-
George v. Lucas Marine Construction
... ... under the Act. Ransom , 16 BRBS at 71-72; see ... also Morrison-Knudsen Co. v. O'Leary , 288 F.2d 542 ... (9th Cir. 1961) ... [ 7 ] In Three Buoys ... ...