Warner Co. v. Norton
Citation | 45 F. Supp. 835 |
Decision Date | 23 July 1942 |
Docket Number | Civ. A. No. 1556. |
Parties | WARNER CO. v. NORTON, Deputy Commissioner for Third Compensation District, et al. |
Court | U.S. District Court — Western District of Pennsylvania |
Shields, Clark, Brown & McCown, of Philadelphia, Pa. (Samuel B. Fortenbaugh, Jr., of Philadelphia, Pa., of counsel), for plaintiff.
Gerald A. Gleeson, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa., for Norton.
Maurice S. Levy, of Philadelphia, Pa., for Rusin.
The issue here is as to whether one Nicholas Rusin, a bargeman employed by the plaintiff, Warner Company, was "a master or member of a crew" within the meaning of the Federal Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq.
The pertinent provisions of the Act are as follows:
Section 902 — "Definitions" — provides: "(3) The term `employee' does not include a master or member of a crew of any vessel * * *."
The Warner Company by bill of complaint has appealed from the award made by Augustus P. Norton, Deputy Commissioner for the Third Compensation District, to Rusin, as a result of injuries which Rusin suffered following a fall on board the Warner Company Barge No. 59, while he was engaged in turning the capstan on the barge to draw the vessel by its mooring line to its berth at a Philadelphia pier.
The Warner Company contends that Rusin came within the category of "a master or member of a crew" and was thus not entitled to any award under the provisions of the Longshoremen's Act.
The complaint, and the motion to dismiss the complaint, agree that the single question before the court is that of the jurisdiction under the Longshoremen's Act.
The facts as summarized in the original findings of the Commissioner are as follows:
The itinerary of Rusin's barge at various times covered ports of call in Pennsylvania, New Jersey and Delaware; the Delaware, Schuylkill, Christiana, Cooper and Rancocas Rivers; and included trips sixty miles in length, which sometimes took fifteen days between loading and discharging, although the barge was not actually under way except for a fraction of the time — i.e. for periods of fifteen or sixteen hours. The barge never went to sea. Rusin was continuously aboard. He lived, ate and slept on the barge, and bought his own meals. He was paid $80 a month. When he worked on any other boat he would get an additional 30¢ per hour.
Rusin worked under a union contract between the Harbor Boatmen's Union and the Warner Company wherein it was provided:
Rusin's duties were limited to his own barge and its safekeeping. Amplifying the Commissioner's findings as quoted above, it may be said that he had the duty of changing the mooring lines as necessary; repairing leaks; pumping; taking lines from the tugboats; responding to whistle signals; slackening lines; putting out navigational lights and signals, and taking general orders from the tugboats as necessary. The barge had no motive power and no wheel, and Rusin, as bargemaster, was entirely subject to the control of the tugboat captain, and could not set his own course or control or change it at any time.
When the matter was heard before me on the motion to dismiss, and in accordance with my direction, Rusin testified as to his prior experience as a boatman or seaman. It was agreed by the parties that this testimony should be treated as supplementing the record made by the Commissioner.
Rusin testified that before he was employed by the Warner Company, his occupation was that of a painter; that he had been a painter for about thirty-five years; that he had never served as a master or officer; that he had never had any seamen's or master's certificates or papers of any kind; that in 1908 he had worked as a seaman on a Merchant and Miners vessel plying between Philadelphia and Boston for about six months; that in 1930 he had worked on a dredge owned by the United States Engineering Department along shore for "a couple of months". He was employed by the Warner Company for about two years, from mid-1936 to mid-1938. When he left the Warner Company in 1938 he was employed intermittently as a painter by Girard College in Philadelphia for about two years. He was re-employed by the Warner Company about three months before the accident.
While the plaintiff in its brief (p. 6) described Rusin as "an experienced seaman, having spent most of his life in that occupation prior to being employed by the Warner Company", there was no testimony offered by the plaintiff in support of that contention.
The sum and substance of the testimony then is that Rusin was employed as a bargeman with duties substantially similar in nature to the bargemen in De Wald v. Baltimore & O. R. Co., 4 Cir., 71 F.2d 810; Diomede et al. v. Lowe, Deputy Commissioner, 2 Cir., 87 F.2d 296; The A. H. Chamberlain, D.C., 206 F. 996, 998; South Chicago Coal & Dock Co. et al. v. Bassett, Deputy Commissioner, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, 694, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535.
In all of the cases cited, with the exception of Loverich v. Warner Co., supra, it was held that the barge masters did not come within the category of "a master or member of a crew" and hence were subject to the exclusive jurisdiction of the Longshoremen's Act.
In the Loverich case, the United States Circuit Court of Appeals for this Circuit ruled that the bargeman employed upon one of the Warner Company barges of the same type as that involved in the instant proceeding came within the category of "a master or member of a crew" and was therefore exempt from the scope of the Longshoremen's Act, and allowed him to recover in admiralty.
In Berwind-White Coal Mining Co. v. Rothensies, D.C., 45 F.Supp. 55, 60, decided May 15, 1942, in which the question involved was whether "barge captains" were exempt from social security taxes as an "officer or member of the crew", I ruled that the barge captains, performing substantially the same duties as the bargeman in the instant case, were not exempt.
In my opinion, I discussed in detail the history of the Longshoremen's Act and the decisions thereunder. I there pointed out that the Loverich case turned largely on the fact that the bargeman was an experienced, qualified seaman, as stated in the opinion of the Circuit Court at page 694 of 118 F.2d:
Since the bargeman in the instant case was not an experienced, qualified, licensed or certificated seaman, I am of the opinion that the ruling in the Loverich case is not...
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Norton v. Warner Co
...award.1 The District Court upheld the Deputy Commissioner in a suit which respondent-employer brought to set aside the award. 45 F.Supp. 835. The Circuit Court of Appeals reversed. 137 F.2d 57. The case is here on a petition for a writ of certiorari which we granted because of the asserted ......
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Lawrence v. Norfolk Dredging Company
......1962). We feel that our disposition of this question in the instant case is controlled by the Supreme Court decision in Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 430 (1944), wherein the Court held that as a matter of law the injured employee was a member of ......
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