Samuels v. Munson SS Line, 6723.
| Decision Date | 15 March 1933 |
| Docket Number | No. 6723.,6723. |
| Citation | 63 F.2d 861 |
| Parties | SAMUELS v. MUNSON S.S. LINE, Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lloyd C. Hooks, of Miami, Fla., for appellant and cross-appellee.
L. S. Julian, of Miami, Fla., for appellee and cross-appellant.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
Appellant Samuels filed a libel in rem against the steamship Walter D. Munson to recover damages for a personal injury sustained while he was at work in the hold of that ship unloading cargo. He alleged that he was injured by a sack of wheat falling on him from a lift which was being raised above him in the process of unloading; and that his injury was the result of unseaworthiness, in that the lift had no guard rails or other means for preventing part of its load from falling off and causing damage. He further alleged that at the time of the accident he was employed as a stevedore by the Munson Steamship Line, a corporation, owner and operator of the Walter D. Munson; but that, pursuant to provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424 (33 USCA § 901 et seq.), he had elected to proceed against the steamship, and had given notice to the Compensation Commission of his election. The libel was dismissed upon exceptions filed by the Munson Line as claimant.
Appellant concedes that at the time of his injury the relation of employer and employee existed between the Munson Line and himself, but it is his contention that under section 33 of the act (33 USCA § 933) he had the right at his election to hold the steamship as a third person liable to him in damages. In our opinion the contention is untenable. The term "person," as used in the act, means individual, partnership, corporation, or association. Section 2 of the act (33 USCA § 902). It has been held that a longshoreman in the employ not of the vessel, but of an independent contracting stevedore, has the right under the act to libel the vessel, and it has been sometimes said that in such a case as to the longshoreman the vessel is a third person. The Pacific Pine (D. C.) 31 F.(2d) 152; The Aden Maru (D. C.) 51 F.(2d) 599; The Nicoline Maersk (D. C.) 53 F.(2d) 103. Those cases are not in point, for here the longshoreman's employer was not the contracting stevedore but the owner of the libeled vessel. In our opinion the steamship Walter D. Munson as to its owner the Munson Line was not a third person within the meaning of the act. Under that act the employer is liable for and is required to secure payment to his employee of compensation for disability. Section 4 of the act (33 USCA § 904). Upon securing compensation, the liability of the employer is exclusive of all other liability to the employee. The employee's claim to compensation from his employer is no longer subject to the defenses of contributory negligence, negligence of a fellow servant, and assumption of risk. Section 5 of the act (33 USCA § 905). Payment of compensation into a special fund established in the Treasury of the United States operates as an assignment to the employer of all rights of the employee, but any amount recovered by the employer under such assignment over and above expenses, costs, amount paid as compensation, goes...
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