Travelers Insurance Company v. Calbeck

• Decision Date: 13 July 1961
• Docket Number: No. 18802.,18802.
• Citation: 293 F.2d 52
• Parties: TRAVELERS INSURANCE COMPANY and Levingston Shipbuilding Company, Appellants, v. C. D. CALBECK, Deputy Commissioner, Eighth Compensation District for the Bureau of Employees' Compensation, U. S. Department of Labor, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.2d 52 (1961)

TRAVELERS INSURANCE COMPANY and Levingston Shipbuilding Company, Appellants, v. C. D. CALBECK, Deputy Commissioner, Eighth Compensation District for the Bureau of Employees' Compensation, U. S. Department of Labor, et al., Appellees.

No. 18802.

United States Court of Appeals Fifth Circuit.

July 13, 1961.

Louis V. Nelson, Gordon R. Pate, Strong, Pipkin, Strong & Nelson, Charles S. Pipkin, Beaumont, Tex., for appellants.

Morton Hollander, Chief Appellate Sec., Dept. of Justice, David L. Rose, Atty., Dept. of Justice, Washington, D. C., Herman Wright, Houston, Tex., J. E. Bass, Jr., Lake Charles, La., William H. Orrick, Jr., Asst. Atty. Gen., T. Fitzhugh Wilson, U. S. Atty., Shreveport, La., for appellee Culbeck.

Mandell & Wright, Houston, Tex., for appellees McGuyer.

Before CAMERON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

We have again the old, old contest: is the claim for injuries to an amphibious worker under the State Compensation Act? Or is it under the Federal Act?¹ Phrasing it differently, the question is all embracing. As to an occurrence of this type, has there been doubt and uncertainty in the past as to coverage? If not, what is there about contemporary developments which should now make twilight out of that which has been thought to be as clear as day or as black as night?² Specifically the question presented is whether a person injured while working on an uncompleted vessel then launched and afloat in navigable waters, but still under construction, is covered by the State Act, or the Longshoremen's Act, or perhaps either one or both depending on the injured party's ultimate choice under the "first come first served"³ Twilight Zone option?

Again, as we remarked before, "the facts, strikingly simple, neither complex nor conflicting, are not the cause of bewilderment." Flowers v. Travelers Ins. Co., 5 Cir., 1958, 258 F.2d 220, at page 221. The Employer operates a shipyard on the Sabine River. At the shipyard it builds new vessels and also repairs completed ships. Its employees, including welders, perform work both on repairs and on construction. There is constant interchange between the two types of work. The Employee McGuyer on July 15, 1957, was injured while working on an oil drilling barge then under construction. The barge had been launched and the superstructure was being built. While McGuyer was welding on the port side of the deck, a tank exploded causing severe head injuries from which he died three days later. The drilling barge had never been used in navigation, and there was still substantial work to be done before it could be so utilized.

In proceedings before the Deputy Commissioner⁴ the original Compensation Order made on February 18, 1959, rejected the claim for death benefits filed by the widow and children. The Deputy Commissioner went right to the heart of the matter. As the reason for rejecting the claim, he formally stated that "It has not been held that the work on an uncompleted vessel comes within the provisions of the Longshoremen's and Harbor Workers' Compensation Act."

But while that was thought to be the final order it was not. Indeed, a year and a half later the final Award now under review was a complete reversal and held that the Longshoremen's Act did apply. In review proceedings that Order was twice remanded to the Deputy Commissioner.⁵ Except that there was an elaboration on essentially inconsequential details, the last Award of May 13, 1960, with no explanation for the change of decision, now declared the injury subject to the Longshoremen's Act and made an Award of death benefits. The record, as such, does not spell out this change of heart. On the argument, however, there was general agreement by all counsel that this change in the Deputy Commissioner's decision was largely the result of a like change of view by the Bureau of Employees' Compensation concerning the underlying legal question of coverage for new construction. For reasons we later discuss, we regard this change as significant, not because either counsel or court consider this an intrusion into the independent adjudicatory functions of the Deputy Commissioner, but rather as a convincing demonstration that until these two cases⁶ there was no serious contention that new construction work was covered.

While this problem has its genesis in the constitutional travail which gave birth to Jensen,⁷ which despite severe criticism displays a remarkable tenacity so that each year sees fresh evidence of its continued vitality, Kossick v. United Fruit Co., 1961, 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56, our inquiry is no longer on that level. Now it is simply a question of statutory construction to determine, not how far Congress could have gone, or what Congress had to do, but rather what Congress did.⁸ That question of statutory construction centers around § 903(a)⁹ which defines the coverage of the Longshoremen's Act in terms which are jurisdictional in nature and impact. Crowell v. Benson, 1932, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. Precisely the question relates to prerequisite 2 "if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law."

We start with an historic legal fact. In 1922 five years before the enactment of the Longshoremen's Act in response to the constitutionally unsuccessful efforts to adopt state compensation laws for maritime workers, the Supreme Court dealt with this very situation. With Jensen then, as now, a matter of everyday preoccupation, the Court held that Oregon could provide workmen's compensation to a person injured while working on an uncompleted vessel then under construction and afloat in navigable waters. Grant Smith-Porter Ship Company v. Rohde, 1922, 257 U.S. 469, 42 S. Ct. 157, 66 L.Ed. 321. That the line was drawn precisely on uncompleted construction versus repair of a completed vessel is demonstrated overwhelmingly by contemporary cases upholding the supremacy of admiralty and prohibiting the application of state compensation acts to injuries received by those repairing existing vessels.¹⁰ Rejecting the contention of the injured repairman that "when hurt, he was doing work of a nature which had no direct relation to navigation or commerce; and to permit application of the State Workmen's Compensation Act would work no material prejudice to the essential features of the general maritime law as in Grant Smith-Porter Ship Co. v. Rohde * * *," the Court went on to pinpoint the very ground of distinction. "In Grant Smith-Porter & Co. v. Rohde, supra, claimant when injured was working upon an incompleted vessel — a thing not yet placed into navigation, and which had not become an instrumentality of commerce." Baizley Iron Works v. Span, supra, 281 U.S. 222, at pages 230, 231, 50 S.Ct. at page 307.

And the line which the Court drew in the pre-1927 days was the line which Congress adopted in § 903(a), note 9, supra. The Court itself has said so in the plainest of terms, often repeated.¹¹ "The main impetus for the longshoremen's * * * Act was the need to correct a gap made plain by decisions of this Court. We believe that there is only one interpretation of the proviso in § 3(a) which would accord with the aim of Congress; the field in which a state may not validly provide for compensation must be taken, for the purposes of the Act, as the same field which the Jensen line of decision excluded from state compensation laws. Without affirming or rejecting the constitutional implications of those cases, we accept them as the measure by which Congress intended to mark the scope of the Act they brought into existence." Parker v. Motor Boat Sales, Inc., 1941, 314 U.S. 244, at page 250, 62 S.Ct. 221, at page 225, 86 L.Ed. 184, 1942 A.M.C. 1.

Of course in this analysis we may not ignore the Twilight Zone concept announced by Davis, supra. In effect it holds that where it is difficult to ascertain what the line is, or on which side of any such assumed line the facts put a particular case, "an injured waterfront employee" was given "an election to recover compensation under either the Longshoremen's Act or the Workmen's Compensation Law of the State in which the injury occurred." Hahn v. Ross Island Sand & Gravel Co., 1959, 358 U.S. 272, at page 273, 79 S.Ct. 266, at page 267, 3 L.Ed.2d 292. But neither Davis nor Moore¹² nor Baskin¹³ were intended to make everything twilight merely because the injury occurred near the waterfront to one who worked in, on, under or around it. The Twilight Zone concept was "devised to solve cases in, not to create, the twilight." Flowers v. Travelers Ins. Co., supra, 258 F.2d at page 228. Indeed, Davis properly understood is a recognition that there are some activities and some areas in which the Jensen line is clear and distinct. As to those the command of Congress is emphatic: those on the "admiralty" side are exclusively covered by the Longshoremen's Act; those on the "maritime but local"¹⁴ side are state.

There is here more than the normal compulsion to heed the congressional command simply because it is the law. Here there is an imperative necessity. All — courts, judges, counsel, employers and employees in the industrial maritime field, insurers and marine underwriters — deplore the uncertainty in this problem. Recognized, of course, is the inescapable fact that from the nature of this overlapping of state and federal sovereignty, the problem at times is serious and substantial and, like Mordecai at the Gate, simply will not go away. But in those areas — rare as they might be — in which there is clarity, in which the line is clearly drawn, in which it may be said with some competent assurance that it is either one or the other, effectual enforcement of the socially desirable aim of securing a speedy determinable money indemnity under the operation of automatic self-executing¹⁵ compensation statutes requires that courts have...