Nalco Chemical Corporation v. Shea

• Citation: 419 F.2d 572
• Decision Date: 13 November 1969
• Docket Number: No. 27397 Summary Calendar.,27397 Summary Calendar.
• Parties: NALCO CHEMICAL CORPORATION and the Fidelity & Casualty Company of New York, Plaintiffs-Appellants, v. R. J. SHEA, Deputy Commissioner, Seventh Compensation District, Etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

419 F.2d 572 (1969)

NALCO CHEMICAL CORPORATION and the Fidelity & Casualty Company of New York, Plaintiffs-Appellants, v. R. J. SHEA, Deputy Commissioner, Seventh Compensation District, Etc., et al., Defendants-Appellees.

No. 27397 Summary Calendar.

United States Court of Appeals Fifth Circuit.

November 13, 1969.

Lawrence J. Ernst, New Orleans, La., A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for plaintiffs-appellants.

Louis C. LaCour, U. S. Atty., David S. Cressy, Gerald P. Fedoroff, O'Keefe, O'Keefe & Fedoroff, New Orleans, La., for defendants-appellees.

Before THORNBERRY, MORGAN and CARSWELL, Circuit Judges.

PER CURIAM:

This is an appeal from summary judgment in favor of Mrs. Joyce Quave, individually and in behalf of her five minor children.¹

The sole issue on review is the District Court's holding that appellant, Nalco Chemical Corporation, fell within the definition of "employer" of the deceased husband under the Longshoremen's and Harbor Workers' Compensation Act, and that compensation awarded by the Deputy Commissioner for the Department of Labor, was supported by controlling law and the facts on the record. We affirm.

The narrow task is to determine if the recorded facts fit the definitions set forth in the Act, 33 U.S.C. § 902. Pertinent portions read:

"(2) The term `injury\' means accidental injury or death arising out of and in the course of employment, * * *"

"(4) The term `employer\' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States * * *."

The record shows that Robert Quave was employed as a pilot salesman by a division of appellant, Nalco Chemical Corporation. On October 31, 1962 he lost his life when his plane crashed in the Breton Sound area of Plaquemines Parish in the State of Louisiana. There was evidence on the record to support the finding of the Deputy Commissioner and the District Court that Quave's work involved travelling to offshore platforms by float plane or boat and he often spent as long as a week at the company's off shore installations. The record further shows that Nalco salesmen, such as Quave, delivered drums of chemicals to the platforms by boat. It was this activity in which he was engaged at the time of his death.

Appellants contend that this was not substantial evidence upon which to base a finding that the deceased employee was in maritime employment, and that the District Court should have reviewed the Deputy Commissioner's decision through a trial de novo.

The subject Act is to be liberally construed in favor of the injured employee. Voris v. Eikel, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5 (1953); Pillsbury v. United Engineering Co., 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225 (1952); McClendon v. Charente Steamship Company, 348 F.2d 298, 301 (5th Cir. 1965).

We conclude that Quave's activities were sufficiently maritime to fall within the scope of 33 U.S.C. § 902(4). It is noted that this section of the Act covers all employers whose employees are engaged in maritime employment "in whole or in part." This becomes significant here for Quave's activities were often over water and it was over water that the fatal accident took place. His regular duties consisted in large part of travelling directly to offshore drilling platforms which he could only reach by boat or seaplane. See Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941), rehearing denied 314 U.S. 716, 62 S.Ct. 447, 86 L.Ed. 570 (1942).

Appellant urged below and here that the District Court was required to hold a hearing de novo and make its findings of the facts independent of the Deputy Commissioner's. For authority it cites Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932). The reliance is misplaced. Crowell does not require a trial de novo by the District Court in making these findings under the Act, but simply holds that the District Court is not bound by the Deputy Commissioner's proceedings pending its independent determination. It resolves itself into a matter of the familiar concept of exercising sound discretion on the part of the court.

In Watson v. Gulf Stevedore Corp., 400 F.2d 649, 651 (5th Cir., 1968), this Court stated that:

"* * * In a complex society whose legislators have seen fit to create a host of administrative agencies functioning throughout the economy, the administrative-judicial system would defeat its own purpose and break down of its own weight if every decision were

...