Revel v. American Export Lines, Civ. A. No. 2240.

• Decision Date: 16 May 1958
• Docket Number: Civ. A. No. 2240.
• Parties: John REVEL, Plaintiff, v. AMERICAN EXPORT LINES, Inc., Defendant and Third Party Plaintiff, and Whitehall Terminal Corporation, Defendant (UNITED STATES of America and Whitehall Terminal Corporation, Third Party Defendants).
• Court: U.S. District Court — Eastern District of Virginia

162 F. Supp. 279

John REVEL, Plaintiff, v. AMERICAN EXPORT LINES, Inc., Defendant and Third Party Plaintiff, and Whitehall Terminal Corporation, Defendant (UNITED STATES of America and Whitehall Terminal Corporation, Third Party Defendants).

Civ. A. No. 2240.

United States District Court E. D. Virginia, Norfolk Division.

May 16, 1958.

COPYRIGHT MATERIAL OMITTED

Sidney H. Kelsey and L. David Lindauer, Norfolk, Va., for Revel.

Seawell, Johnston, McCoy & Winston, John W. Winston and Harry E. McCoy, Norfolk, Va., for American Export Lines.

William B. Eley, Norfolk, Va., for Whitehall Terminal Corp.

L. S. Parsons, Jr., U. S. Atty., John M. Hollis, Asst. U. S. Atty., Norfolk, Va., and Robert E. Klages, Special Assistant, Dept. of Justice, Washington, for United States.

WALTER E. HOFFMAN, District Judge.

Plaintiff, Revel, a longshoreman employed by Whitehall Terminal Corporation (hereinafter referred to as Whitehall), was injured on June 9, 1956, while engaged in the peformance of his duties as a slinger loading the S.S. Executor, a vessel owned and operated by the defendant, American Export Lines, Inc. (hereinafter called Export), at a time when the Executor was docked at Pier 1, Army Base, Norfolk, Virginia.

Export had space-chartered a portion of the cargo space to the United States of America, pursuant to a contract executed with Military Sea Transport Service (M.S.T.S.). The personnel to load and stow the cargo on board the Executor was to be supplied by M.S.T.S. in accordance with said contract. In turn, M.S.T.S. contracted with Whitehall, a stevedoring firm, to furnish said personnel.

At the time of the accident longshoremen employees of Whitehall were on board the ship in charge of loading operations, including the operation of the ship's winches and gear owned and rigged by Export. Plaintiff was working on the pier, alongside the No. 1 hold, preparing cargo to be hoisted onto the vessel and stowed there, when a pallet load of drums, then in the process of being moved from the dock to the No. 1 hold, fell onto the pier injuring plaintiff.

The original complaint filed by plaintiff was solely against Export, in which plaintiff alleged that his injuries were caused by faulty winches supplied by Export and the negligence of Export's employees. By appropriate proceedings, Export caused the United States of America and Whitehall to be named as third-party defendants. The United States, in turn, filed a cross-claim against Whitehall. The third party actions and cross-claim seek a judgment and recovery over in each instance upon the theory of indemnity. An amended complaint later brought Whitehall in as a co-defendant to plaintiff's action.

Subsequent to the date of the accident and prior to the institution of any action, plaintiff and Whitehall's compensation insurance carrier executed a memorandum of agreement as to payment of compensation pursuant to the Virginia Workmen's Compensation Act, Code 1950, § 65-1 et seq. Suit was commenced against Export three days later. Approximately three weeks thereafter the Industrial Commission of Virginia entered an award in favor of plaintiff, as an employee of Whitehall, in accordance with the Workmen's Compensation Act. Plaintiff has received and accepted weekly payments under the award of July 16, 1956, beginning June 16, 1956.

Export and Whitehall filed motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C., directed to the amended complaint. Whitehall, as the employer of plaintiff, relies upon the specific provisions of the Virginia Workmen's Compensation Act, but plaintiff urges that the payments made thereunder do not constitute a bar to an action against his employer because of the Extension of Admiralty Act, 46 U.S.C.A. § 740, which reads in part as follows:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all causes of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.

"In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water * * *."

Export, contending that the Virginia Workmen's Compensation Act is applicable, insists that the work being done at the time of the accident was a part of Export's "trade, business or occupation", and, since Export was not a stranger to the employment and work, plaintiff's acceptance of compensation under the Act from Whitehall's insurance carrier is a bar to any action against Export. Stated otherwise, was Export an "other party" within the meaning of the Code of Virginia, 1950, § 65-38, read in connection with other provisions of the Act?¹

Upon consideration of the argument of counsel, the Court granted Whitehall's motion for summary judgment directed to the amended complaint, but such action, of course, did not exonerate Whitehall as a third-party defendant in the third-party action instituted by Export or on the cross-claim filed by the United States of America. It was the conclusion of the Court that the Extension in Admiralty Act enacted by Congress on June 19, 1948, 46 U.S. C.A. § 740, was not intended to overrule the prior decisions of the United States Supreme Court in State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933; Smith & Son, Inc., v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520, and Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. While a strict interpretation of the wording of the Act would appear, at first glance, to extend the admiralty jurisdiction to the factual situation presented herein, the legislative history indicates that the Act was not intended to affect remedies which may exist against other parties involved by existing law in any appropriate forum.² Particularly is this true when we consider the possible application of the Act to fields heretofore preempted by state compensation acts in which the dock or pier has been held to be an extension of the land. Congress, in passing the Longshoremen's and Harbor Workers' Compensation Act in 1927, 33 U.S.C.A. § 901 et seq., declared its purpose to restrict the liability under federal statutes of an employer of longshoremen "to injuries to his employees occurring on navigable waters". Swanson v. Marra Bros., supra, 328 U.S. at pages 5, 6, 7, 66 S.Ct. at page 871. To oust state compensation acts from an established and important area of coverage by reason of the passage of the Extension in Admiralty Act, which makes no reference to the field of compensation law, would create a situation in which a longshoreman, such as the plaintiff herein, would not be covered by any workmen's compensation act, state or federal, as the federal act covers only those injuries occurring "upon the navigable waters", 33 U.S.C.A. § 903(a), and it is established that injuries suffered on piers or docks (as opposed to drydocks) are not included. It can hardly be said that the Extension in Admiralty Act was also intended to amend the federal compensation act to include injuries occurring on land as well as "upon the navigable waters", and this is especially true when the Supreme Court has said, "Congress made clear its purpose to permit state compensation protection wherever possible". Davis v. Department of Labor and Industries, 317 U.S. 249, 252, 63 S.Ct. 225, 227, 87 L.Ed. 246. See also United States Casualty Co. v. Taylor, 4 Cir., 64 F.2d 521, 524; Travelers Ins. Co. v. McManigal, 4 Cir., 139 F.2d 949, 951; both opinions by Judge Soper. cf. Gladden v. Stockard S. S. Co., 3 Cir., 184 F.2d 510.

The motion for summary judgment filed by Export presents an entirely different principle of law. As plaintiff has received and accepted compensation under the Virginia Workmen's Compensation Act from the compensation insurance carrier of Whitehall, pursuant to an award, there exists no rights in behalf of plaintiff against Whitehall. Export argues strenuously that the work being done at the time of the accident was a part of Export's "trade, business or occupation", and that Export was not a stranger to the employment and work— hence Export is entitled to the same protection from action as may inure to Whitehall. The issue involves an interpretation of the laws of Virginia. An examination of the authorities reveals no clear-cut rule on the subject. The recent case of Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37, discusses at length the numerous decisions, upon consideration of which this Court reached the conclusion that, for the purposes of summary judgment, doubt existed as to whether the loading of the vessel constituted a part of "the trade, business or occupation" of Export. In denying Export's motion for summary judgment, the Court reserved the right to receive and consider evidence on the question at the time of trial before the jury. At the trial no such evidence was presented and no request for charge on this issue was made.

Whitehall filed a motion to dismiss the third-party complaint of Export contending that the payment of compensation to the plaintiff barred the rights of Export as third-party plaintiff. This motion was denied under the authority of Ryan Stevedoring Co. v. Pan-Atlantic Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. While not raised by Whitehall's motion, it may be argued that Export's third-party action against Whitehall should be dismissed because of the absence of any indemnity or service agreement between Whitehall and Export, as Export contracted with M.S. T.S. who, in turn, contracted with Whitehall. This is the point expressly avoided by the Supreme Court in Ryan (footnote 6).

The United States likewise filed a motion to dismiss the third-party complaint of Export alleging, in substance, that the Court lacks jurisdiction as...