Warner Co. v. Norton

• Decision Date: 17 June 1943
• Docket Number: No. 8131.,8131.
• Citation: 137 F.2d 57
• Parties: WARNER CO. v. NORTON et al.
• Court: U.S. Court of Appeals — Third Circuit

137 F.2d 57 (1943)

WARNER CO. v. NORTON et al.

No. 8131.

Circuit Court of Appeals, Third Circuit.

Argued November 20, 1942.

June 17, 1943.

Decided June 17, 1943.

S. B. Fortenbaugh, Jr., of Philadelphia, Pa. (Shields, Clark, Brown & McCown, of Philadelphia, Pa., on the brief), for appellant.

Maurice S. Levy and J. Barton Rettew, Jr., both of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellees.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

This is an appeal by an employer from an order of the District Court dismissing its suit to set aside an award of compensation entered by the Deputy Commissioner under the Federal Longshoremen's and Harbor Workers' Compensation Act,¹ in favor of an employee for injuries received while employed as a bargeman. The ultimate question is whether the employee was "a master or member of a crew" of a vessel within the meaning of the Act which expressly excludes from its purview, inter alia, "A master or member of a crew of any vessel * * *." 33 U.S.C.A. § 903. The Commissioner, on the facts found by him, concluded that the claimant was a harbor worker and not a master or member of a crew and that he was therefore entitled to the benefits of the Compensation Act. The District Court ruled to like effect.

In reviewing the action of the court below we necessarily take as conclusive the facts as found by the Commissioner in so far as they are supported by substantial evidence. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 253, 258, 60 S. Ct. 544, 84 L.Ed. 732. At the hearing upon the employer's complaint, the District Court took additional evidence but, in the end, accepted the Commissioner's findings of fact in toto, merely amplifying them in certain particulars as the additional evidence, which was received with the consent of all parties, consistently warranted. The evidentially supported basic findings, as to the merit of which there is no controversy, disclose the following factual situation.

The claimant suffered the injuries for which he seeks compensation from a fall while employed on a barge of the Warner Company on navigable waters of the United States. As the Deputy Commissioner specifically found, the fall was occasioned by the pulling out of a hand-operated capstan on deck which the bargeman was engaged in turning to take up the mooring line running from the barge to a pier to which he was endeavoring to warp the vessel. At the time of his injury he was the only person aboard or employed upon the barge. He had succeeded in propelling it the greater part of the distance of the desired movement against difficulties of wind and tide, which were augmented by the weight of the barge, when the capstan bar pulled out, struck him on the chest and caused him to fall, whereby the injuries for which he makes claim were inflicted.

The barge was a documented vessel under the Customs Laws of the United States. It had no motive power of its own and was propelled ordinarily by being towed by a tugboat to ports of call on navigable inland waters of the United States within a radius of thirty miles of the employer's plant in Philadelphia. It was also customary for the bargeman to propel the barge for short distances by winding up a mooring or towing cable by means of the hand-operated capstan.

The duties of a bargeman embrace the care of his barge by repairing leaks, pumping out excess water and seeing in general as to the seaworthiness of the vessel. For that purpose he lives aboard the barge, eating and sleeping in quarters there provided for his use and supplying his own food. It is also his duty to make fast and to unfasten mooring lines at dock and to change them as necessary by tightening or slackening them, to take tow lines from tugboats and to lengthen or slacken them when necessary, to set out navigational lights or signals, to respond to whistle signals from the barge's tow boat and to take orders from the tugboat captain to whose control the bargeman is subject while his barge is in tow. Rusin, the claimant, was paid a flat monthly salary for his service as bargeman and, when he worked on any other boat, he received additional compensation at an hourly rate for the time so engaged. His employment was subject to the provisions of a contract between the Harbor Boatmen's Union and the Warner Company wherein it was provided, inter alia, —

"Section 6: All Bargemen assigned to specific barges in active operation shall be paid a monthly salary of $80.00 and shall be provided with quarters. This compensation is for all work performed by Barge men in the operation of his own vessel.

"Section 7: The rates as provided herein are based upon all services and time required to safeguard and operate the barge fleet, including necessary pumping, watching or other emergency duties on Sundays and holidays."

While the question as to whether a particular claimant is "a master or member of a crew" of a vessel and therefore excluded from the Compensation Act is one of fact, it is necessarily an ultimate conclusion to be derived from an application of the statute to the basic findings of fact. As such, it is open to court review for a determination of its validity on the basis of the supportable facts as found by the Commissioner. In short, a Commissioner's conclusion that one is or is not "a master or member of a crew" is not binding upon a reviewing court if the basic facts competently found by the Commissioner rightly call for a different conclusion.

In ...