Terminal Shipping Co. v. Branham

• Decision Date: 05 November 1942
• Docket Number: No. 2569.,2569.
• Citation: 47 F. Supp. 561
• Parties: TERMINAL SHIPPING CO. et al. v. BRANHAM, Deputy Commissioner of United States Employees Compensation Commission.
• Court: U.S. District Court — District of Maryland

47 F. Supp. 561

TERMINAL SHIPPING CO. et al. v. BRANHAM, Deputy Commissioner of United States Employees Compensation Commission.

No. 2569.

District Court, D. Maryland.

November 5, 1942.

W. Hamilton Whiteford and Due, Nickerson & Whiteford, all of Baltimore, Md., for plaintiffs.

Bernard J. Flynn, U. S. Atty., and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md., and Charles T. Branham, Acting Chief Counsel U. S. Employes Compensation Commission of New York City, for respondent.

CHESNUT, District Judge.

This case turns upon the proper construction of section 44(c) (1) of the Longshoremen's & Harbor Workers Compensation Act (33 U.S.C.A. § 901, et seq.). 33 U.S.C.A. § 944(a) establishes a special fund for the purpose of making payments in accordance with the provisions of sub-sections (f) and (g) of section 8 of the Act, 33 U.S.C.A. § 908(f) and (g), which relate to compensation for disability of employes of employers generally who are subject to the Act in certain cases. Section 944(c) (1), provides:

"(c) Payments into such fund shall be made as follows: (1) Each employer shall pay $1,000 as compensation for the death of an employee of such employer resulting from injury where the deputy commissioner determines that there is no person entitled under this chapter to compensation for such death. Fifty per centum of each such payment shall be available for the payments under subdivision (f) of section 908 of this chapter, and 50 per centum shall be available for payments under sub-division (g) of said section." (Italics supplied.)

In this particular case the question of proper construction must also be considered in connection with the provision of section 933(c), 33 U.S.C.A. which, in dealing with compensation for injuries where third persons are liable, provides:

"(c) The payment of such compensation into the fund established in section 944 of this chapter shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as `representative') to recover damages against such third person, whether or not the representative has notified the deputy commissioner of his election."

The differing constructions contended for by the respective parties can best be stated after a brief review of the particular facts involved in this case, which have been stipulated by the parties without controversy.

On June 11, 1940 James A. Thompson, while engaged in the performance of his duties as a stevedore for the Terminal Shipping Company (a stevedoring corporation) sustained fatal injuries on board the Brazilian Steamship "Camamu" while lying in navigable waters at Baltimore. While working between decks, he was walking across the hatch when the boards fell from under him precipitating him into the lower hold of the vessel. From his injury he died the same day. He was survived by his mother who claimed to be dependent on him. No other next of kin made any claim. When notified of the mother's claim, the deputy commissioner apparently treated the mother as prima facie entitled to some compensation and this was not controverted by the employer, or its insurance carrier. On July 10, 1940 the mother, Sadie Thompson, filed notice with the deputy commissioner of her election under 33 U.S.C.A. § 933 "to pursue my remedy against a third party, to wit, the owner and operator of the Steamship `Camamu', but make claim for compensation for any deficiency between the amount so recovered and the amount provided by the said Act." On July 13, 1940 the deputy commissioner advised counsel for the employer's insurance carrier (Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company) that the claimant had made this election, and in view of that "no further action will be taken by this office until the outcome of the third party action has been concluded." Subsequently the mother as administratrix and individually, in due time sued the shipowner for damages in the United States District Court for the Southern District of New York, and on or about April 14, 1942 the suit was compromised and settled, without the written approval of the employer or its insurance carrier, by the payment of $8500 to Sadie Thompson for the death of her son. As this recovery was in excess of the maximum compensation under the Act, the mother made no further claim to compensation. Thereafter, the employer, its insurance carrier and the deputy commissioner entered into a stipulation containing the above recited facts on which the deputy commissioner made a determination that there was no person entitled to compensation under the Longshoremen's & Harbor Workers Act for the death of the employe, and thereupon made an award and order for the payment by the employer or its carrier of $1,000 under section 944(c), 33 U.S.C.A. In due course the employer and its insurance carrier have filed this petition for review under section 921(b), 33 U.S.C.A., which provides that the deputy commissioner's order may be set aside "if not in accordance with law".

It will be noted from this statement of facts that the employee's mother, who was the only person who ever made any claim under the Act, elected to pursue her remedy against a third person allegedly liable (in lieu of accepting compensation under the Act), and recovered from it a sum in excess of the maximum allowance that could have been recoverable under the Act ($7500 by § 914(m), 33 U.S.C.A.); and she therefore took no further action as claimant under the Act, and filed no formal claim within the year ordinarily allowed therefor under section 913(a).

The particular phrase of section 944(c) which requires construction and application is "where the deputy commissioner determines that there is no person entitled under this chapter to compensation for such death". The deputy commissioner contends that the phrase means that no person is entitled to compensation at the time of his determination either (1) because the employe was survived by no dependent or (2) if survived by a dependent, the latter was not at the time of his determination entitled to compensation because no claim was filed or the claim was filed too late, or (3) because the person entitled to compensation had recovered a larger sum from a third person liable therefor. More bluntly and briefly stated, the deputy commissioner contends that in every case of the death of an employe the employer must either pay compensation or pay $1,000 into the special fund. The employer and its insurance carrier in this case contend that the proper construction of section 944(c) (1) in connection with section 933(c) is that where a claimant prima facie entitled to compensation elects to and does recover from a third person liable a larger sum than allowable compensation under the Act, the payment of $1,000 into the special fund is not authorized unless the deputy commissioner affirmatively finds as a fact that the deceased employe was not survived at the time of his death by any person who would be entitled to compensation under the Act, which affirmative finding the deputy commissioner did not make in this case.

The disputed phrase "where the deputy commissioner determines that there is no person entitled under this chapter to compensation for such death" standing alone is ambiguous with respect to the time as of which the determination is to be made, that is, as of the time of the death of the employe or at the time when the deputy commissioner makes his determination.¹ And if the ambiguity be resolved in favor of the latter point of time for cases in which no third person is liable, there remains the further question in this particular case whether that construction is permissible in view of the provision of section 933(c), 33 U.S.C.A. where a surviving dependent recovers from a third person liable a larger sum than allowable compensation under the Act.

In considering what is the proper construction there must be kept in mind some of the history of compensation acts and the legal and social philosophy which underlies them and also the general scope and procedural provisions of the Longshoremen's Act. It is well known that the Longshoremen's Act of 1927 was patterned largely upon the New York Workmen's Compensation Law, Laws 1913, c. 816, Consol.Laws N.Y. c. 67, which was the pioneer in the field of similar state statutes. It was held constitutional by the Supreme Court in New York Cent. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629. Numerous amendments have since been made in two of which we are particularly interested here, they being sections 15(8) and (9) which now represent amendments thereto made in 1922. Those sections in the New York law are generally comparable in purpose and phraseology to the present provision of section 944(c) (1), 33 U. S.C.A., section 44(c) (1), of the Longshoremen's Act, which itself has been held constitutional in many federal decisions of which Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, is the leading case. On familiar principles of statutory construction decisions of the New York courts construing particular provisions of the New York Act, rendered before the passage of the federal act, are generally followed by federal decisions construing similarly worded provisions of the federal statute. Metropolitan R. Co. v. Moore, 121 U.S. 558, 572, 7 S.Ct. 1334, 30 L.Ed. 1022; Hartford A. & I. Co. v. Hoage, Dep. Com'r. 66 App.D.C. 154, 85 F.2d 411, 413; Employers Liability Assur. Corp. v. Monahan, 1 Cir., 91 F.2d 130, 132; Twin Harbor S. & T. Co. v. Marshall, 9 Cir., 103 F. 2d 513, 516. The phrase in section 15(8) of the New York Act stating the condition for the payment by the employer into the special fund reads: "The employer, or if insured, his insurance carrier, shall pay into such special fund for every case of injury causing death in which there are no persons entitled to compensation the...