Thomson v. Bassett
| Decision Date | 24 October 1940 |
| Docket Number | Civ. A. No. 24. |
| Citation | 36 F. Supp. 956 |
| Parties | THOMSON v. BASSETT, Deputy Com'r of United States Employees' Compensation Commission (COURTEAU et al., Interveners). |
| Court | U.S. District Court — Western District of Michigan |
Frost & Deo, of Escanaba, Mich., for plaintiff.
Joseph F. Deeb, U. S. Atty., of Grand Rapids, Mich., for defendant.
Yelland & Yelland, of Escanaba, Mich., and S. Eldridge Sampliner, of Cleveland, Ohio, for intervening defendants.
The substantial issue presented arises out of plaintiff's claim that, for the reason that there was no competent evidence to support the award, the Deputy Commissioner was without jurisdiction. Plaintiff asserts that under the Longshoremen's and Harbor Workers' Compensation Act, compensation is payable for death of an employee only if death results from an injury occurring upon the navigable waters of the United States, see Title 33, U.S.C.A. § 903, and that the Deputy Commissioner had no jurisdiction because the proximate cause of death in the instant case took effect while deceased was on the fender of the dock, and therefore on land. The cases principally relied upon are: Smith & Son v. Taylor, 276 U. S. 179, 48 S.Ct. 228, 72 L.Ed. 520; Vancouver S. S. Co. v. Rice, 288 U.S. 445, 53 S.Ct. 420, 77 L.Ed. 885; and Minnie v. Port Huron Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631.
Review of the testimony is convincing that there is substantial evidence to support the finding of the Commissioner to the effect that the deceased employee caught one of the cables from the boat and started to walk with it along the fender (which was about 12 feet above the water) while the boat moved slowly into the dock; that while he was doing so, the cable became tight, causing him to be pulled from the fender; that he struck against the side of the boat and sank immediately; and that he was found dead a short time later, having sustained a fracture about the sixth cervical vertebra. The sole eyewitness of the accident who testified stated that deceased was pulled off the fender by the cable which was heavy and had "none too much slack". It is a fair inference therefrom that the accident and subsequent death resulted from the efforts of deceased to continue his hold upon the cable which was too heavy for him and was without sufficient slack.
The following excerpts from 1 Am.Jur., Admiralty, sections 43 and 46, concisely and correctly state the applicable rules of law:
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