Richard v. Lake Charles Stevedores, Inc.

• Decision Date: 04 June 1957
• Docket Number: No. 4434,4434
• Citation: 95 So.2d 830
• Parties: Lincoln RICHARD, Plaintiff-Appellant, v. LAKE CHARLES STEVEDORES, Inc., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 830

95 So.2d 830

Lincoln RICHARD, Plaintiff-Appellant, v. LAKE CHARLES STEVEDORES, Inc., et al., Defendants-Appellees.

No. 4434.

Court of Appeal of Louisiana, First Circuit.

June 4, 1957.

Writ of Certiorari Denied Oct. 8, 1957.

Bass & Nichols, Lake Charles, for appellant.

Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellees.

TATE, Judge.

This suit for workmen's compensation was dismissed upon an exception of no cause of action.¹ Defendants are the injured workingman's employer and its compensation insurer.

The allegations of the petition show that plaintiff was injured in the course of his employment as a 'longshoreman', 'while working in the hold of the vessel, S.S. Seagate, which was moored to the dock in the Lake Charles harbor.'

Upon these allegations that the plaintiff was a longshoreman injured while working upon the navigable waters of the United States, the District Court dismissed plaintiff's suit upon the ground that the federal government, with exclusive constitutional jurisdiction over maritime law and maritime injuries, has provided the exclusive remedy for longshoremen by the federal 'Longshoremen's and Harbor Workers' Compensation Act', 33 U.S.C.A. § 901 et seq., especially 33 U.S.C.A. § 905. See jurisprudence following Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, such as Rhinehart v. T. Smith & Son, La.App.Orleans, 14 So.2d 287.

Conceding that at one time these authorities would have governed in the present situation, plaintiff-appellant earnestly urges that by Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225 87 L.Ed. 246, and the succeeding jurisprudence, the United States Supreme Court has decisively re-established the rule that employees injured in connection with maritime work are not barred by the federal Constitution from remedies provided for them by the State legislatures, in the absence of material prejudice to any feature of the general admiralty law.

In the absence of such prejudice, this Court recently sustained a widow's action under the Louisiana workmen's compensation statute for the death of her husband, a seaman. Beadle v. Massachusetts Bonding & Ins. Co., La.App., 87 So.2d 339.

In the course of that opinion, we had occasion to discuss fairly extensively the course of the jurisprudence since the illstarred starred Jensen doctrine.² It was our conclusion that, allowing for the presumption of constitutionality attaching to enactments of State legislatures, the federal maritime and the State compensation remedies 'may overlap; and when they do, as in the present instance, the employee's choice of either will be upheld,' 87 So.2d 343.

We have been reenforced in our belief that these conclusions are correct by the scholarly and comprehensive summary of the jurisprudence found in the authoritative treatise by Dean Larson, Workmen's Compensation Law, Sections 89.10 through 89.60, Volume 2, pp. 408--420 (hereinafter cited as Larson). Dean Larson summarizes the present status of the law as having evolved after passing through five phases:

First, unqualified federal pre-eminence and pre-emption, as initiated and exemplified by the Jensen decision;

Second, an exception permitting State remedies for injuries arising in maritime employments primarily local in character, as exemplified by Grant Smith-Porter Ship Co. v. Rhode, 1922, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008;

Third, the Longshoremen's Act phase, during which longshoremen and other harbor workers injured on navigable waters were relegated to the Longshoremen's Act, although if injured on land or by a blow from the land they were permitted to retain their State compensation remedy, as exemplified by a case arising in Louisiana and permitting the State remedy, T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520;

Fourth, the 'twilight zone' phase initiated by the Davis case, where the employee's choice of either State or federal remedy would be sustained in borderline cases; and,

Fifth, the present stage of concurrent jurisdiction exercised by both State and federal tribunals, each jurisdiction deciding for itself whether it shall apply its own law, such determination being relatively final.

As did this court in its Beadle decision, Dean Larson's conclusion that there is concurrent jurisdiction for both State and federal remedies was reached on the basis of the United States Supreme Court's rulings in Bethelehem Steel Co. v. Moore, 1948, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (affirming 323 Mass. 462, 80 N.E.2d 478) and Baskin v. Industrial Acc. Comm., 1949, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (reversing 89 Cal.App.2d 632, 201 P.2d 549).

Both the Moore and Baskin cases involved workers hurt while on board and repairing a completed vessel on navigable waters; it having formerly been firmly decided that such injuries were exclusively within the federal maritime jurisdiction, and were beyond the protection of the State compensation remedy, John Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, see Messel v. Foundation Co., 274 U.S. 427, 47 S.Ct. 695, 71 L.Ed. 1135--no less firmly than the similar decisions relating to other harbor workers in the category of 'longshoremen' such as the present plaintiff. (See 2 Larson 415.)

Nevertheless, the Supreme Court affirmed the State court's award of State compensation in the Moore case; and reversed the California commission's denial of State compensation in the Baskin case to such an employee, which had been based upon the alleged exclusiveness of the federal remedy provided by the Longshoremen's Act.³

We think the rulings in those cases to be determinative in the present. Louisiana has endeavored to extend the protection of her compensation act to longshoremen such as plaintiff by providing as among the occupations specifically covered by the act, the 'loading or unloading of cargoes of vessels,' LSA-R.S. 23:1035. This solemn enactment of our legislature is presumed to be constitutional. Under the Davis, Moore, and Baskin cases, the election of this workingman injured in Louisiana to apply in the courts of Louisiana for a remedy provided for him by the legislature of Louisiana cannot be rejected, unless it should work material prejudice to the general maritime law.

And how can the sustaining of plaintiff's election work material prejudice or disrupt the uniformity of the general maritime law?

Had this same longshoreman plaintiff been injured in the same manner, in the course of his employment with the same employer, having reported for work the same day, his employer subjected to the same risks and paying the same insurance premiums, plaintiff would undoubtedly have been entitled to recovery under the Louisiana compensation law, even before the Davis case, had he been injured on land or on the gangplank a few feet distant from the present accident aboard ship, as specifically held in a case arising in Louisiana, T. Smith & Sons, Inc. v. Taylor, 1930, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520.

That the amount of compensation subsistence payable might vary somewhat from State to State affords no more reason for declaring these variations so disruptive of the necessary uniformity of the federal maritime law as to be unconstitutional than does the fact that the daily rate of 'maintenance' payable to injured seamen varies greatly (i.e., from...