Western Boat Bldg. Co. v. O'LEARY

Decision Date08 July 1952
Docket NumberNo. 13091.,13091.
Citation198 F.2d 409
PartiesWESTERN BOAT BLDG. CO. et al. v. O'LEARY et al.
CourtU.S. Court of Appeals — Ninth Circuit

Bogle, Bogle & Gates, Edw. S. Franklin, Seattle, Wash., for appellant.

Smith Troy, Atty. Gen. of Washington, Bernard A. Johnson, Asst. Atty. Gen. for State of Washington, amici curiae.

J. Charles Dennis, U. S. Atty., Seattle, Wash., Guy Dovell, Asst. U. S. Atty., Tacoma, Wash. (William S. Tyson, Solicitor, Ward E. Boote, Asst. Solicitor, Herbert P. Miller, James E. Hughes, Attys., U. S. Department of Labor, Washington, D. C., of counsel), for appellees.

Before MATHEWS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing appellants' petition for an order enjoining enforcement of a compensation award made by the Deputy Commissioner to appellee Robert Markovich under the Longshoremen's & Harbor Workers' Act, 33 U.S.C.A. § 901 et seq.

On October 18, 1950, Markovich was injured while performing service as a fastener in work incidental to the repair of the tugboat El Sol which was then located on a marine railway at the yard of his employer, Western Boat Building Company, in Tacoma, Washington. While walking alongside a lifeboat on the upper side of the ship, he lost his balance, and fell over the side, a distance of about forty feet. The marine railway upon which the El Sol was located is about 150 feet long and the lower portion thereof extends into the water. While thus undergoing repairs, the stern of the vessel was partially submerged in the waters of Puget Sound at high tide. It is not disputed that the waters of Puget Sound are navigable.

Shortly after his injury, appellee-Markovich filed a claim for compensation with the Department of Labor and Industries of the State of Washington. The claim was allowed November 14, 1950, but was being further investigated. Monthly payments to Markovich began December 15, 1950, and three such monthly awards of $75.00 each had been paid at the time of the trial.

On January 10, 1951, while receiving compensation from the State of Washington, appellee-Markovich filed a claim for benefits with appellee-Deputy Commissioner, under the Longshoremen's and Harbor Workers' Act, and, after hearing, an order was entered making an award to him.

The appellant-employer contends that the Deputy Commissioner was without jurisdiction to make this award since appellee's injury (1) did not occur on navigable waters and (2) compensation therefor was and could be validly provided by the Compensation Act of the State of Washington, RCW 51.04.010 et seq. It will be observed that Section 3 of the Longshoremen's Act provides that compensation shall be payable in respect of disability or death of an employee, "but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through Workmen's Compensation proceedings may not validly be provided by State law."

At the outset, therefore, we must determine whether the disability of appellee resulted "from an injury occurring upon the navigable waters of the United States (including any dry dock)." If not, the Federal legislation is inapplicable.

Although the Deputy Commissioner found that the stern of the vessel was partially submerged in navigable waters at high tide while the vessel was undergoing repair on the marine railway, we deem it unnecessary to decide whether Federal jurisdiction may properly be tied to such an adventitious circumstance. Rather the legislative history of the Federal Act compels us to conclude that a marine railway is included within the statutory parenthetical expression "any dry dock," and that, therefore, the first prerequisite to Federal jurisdiction is present. Viewing the Act in the environment of its enactment, our reaction is the same as that of the Fifth Circuit when it was presented with this very question in Maryland Casualty Co. v. Lawson, 5 Cir., 1939, 101 F.2d 732, 733. It said:

"Appellants contend that a marine railway is not a dry dock within the meaning of the law, relying upon Norton v. Vesta Coal Co., 3 Cir., 63 F.2d 165, and Rohlfs v. Dept. of Labor and Industries, 190 Wash. 566, 69 P.2d 817, which are in point but not controlling. We held to the contrary in Continental Casualty Co. v. Lawson, 5 Cir., 64 F. 2d 802, and decided that a marine railway is to be considered a dry dock within the meaning of the statute. Our decision finds support in Butler v. Robins Dry Dock & Repair Co., 240 N.Y. 23, 147 N.E. 235, in which it was held that a workman injured while engaged in repairing a vessel in a graving dock was constructively on navigable waters when the accident occurred.
* * * * * *
"In enacting the Longshoremen\'s and Harbor Workers\' Compensation Act is was clearly the intention of Congress to give the same rights and remedies to those employed in work of a maritime nature as are enjoyed by other workers under the provisions of state workmen\'s compensation acts. The act is to be liberally construed to effect its purpose. Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 409, 52 S.Ct. 187, 76 L.Ed. 366.
"In construing the act we are not bound by technical definitions but must interpret it by giving to the words used their ordinary meaning. Courts of admiralty may take notice of terms in general use in maritime affairs. Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200. In nautical parlance `dry dock,\' `floating dock\' and `marine railway\' are interchangeable terms. Necessarily, all are located on navigable waters and used for exactly the same purposes, i. e., to raise a ship out of the water to permit examination and repairs to her hull which are impossible while she is afloat. A ship\'s master speaks of `dry docking\' his vessel regardless of which method is to be used. That the words have a common meaning is illustrated by this case. Although operating a marine railway, appellant calls itself a dry dock.
"There are few dry docks, technically considered, in the United States. Floating docks or marine railways or both are to be found at every seaport. It must be presumed that Congress intended to protect the great majority of laborers employed on floating docks and marine railways as well as the comparatively few workmen employed on what are to be technically considered dry docks. We entertain no doubt that in extending the law to cover `any dry dock\' Congress intended to include marine railways. Cf. International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, and Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254." (Emphasis supplied.)

Appellants contend that the Washington Workmen's Compensation Act provided the exclusive remedy for compensation to Markovich. This argument necessarily implies that the payment of compensation under the state law ousts the federal jurisdiction. With such a statement we cannot agree. The record does not clearly indicate whether or not there has been a specific adjudication by the Washington Commission upon the issue whether the Federal or State compensation law was applicable, and appellee-Markovich vigorously contends that the three compensation payments made to him by the State of Washington were voluntary in nature. Even if it be assumed, arguendo, however, that the Washington Commission had adjudicated and granted the award under the state act, we do not regard such action as constituting a bar to claimant's rights under the federal law.

In the recently decided case of Newport News Shipbuilding & Dry Dock Co. v. O'Hearne, 4 Cir., 192 F.2d 968, 1951, an appeal was taken from a judgment of the district court refusing to enjoin the enforcement of a compensation award made by the Deputy Commissioner under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., to the widow of a welder who was fatally injured in repairing the gate of a graving dry dock. There (as here) it was specifically urged that a prior award of compensation by the Industrial Commission of Virginia invalidated the award made by the Deputy Commissioner. In rejecting such an argument, and affirming the judgment of the district court, Judge Soper, at page 971 of 192 F.2d, stated:

"It is true that the Virginia Commission accepted jurisdiction in this instance and awarded compensation, and that the courts have been inclined in doubtful cases to uphold awards by state as well as by federal administrative authority; Davis v. Department of Labor and Industries, 317 U.S. 249, 250, 63 S.Ct. 225, 87 L.Ed. 246; but in the Pittman case awards have been made by both authorities and it is incumbent upon this court to decide between them. We hold that the case falls within the purview of the federal statute and outside the permissible scope of the state enactment."

Payments theretofore made for compensation under the award of the state commission were merely credited upon the award of the Deputy Commissioner. See also Massachusetts Bonding & Insurance Co. v. Lawson, 5 Cir., 1945, 149 F.2d 853; Cf. Gahagan Construction Corporation v. Armao, 1 Cir., 1948, 165 F.2d 301; Kibadeaux v. Standard Dredging Co., 5 Cir., 81 F.2d 670, certiorari denied 299 U.S. 549, 57 S.Ct. 12, 81 L.Ed. 404.

Appellants tell us that the lower court erred in failing to accord a de novo hearing on the question of whether Markovich was injured on navigable waters, their contention particularly being that "this is a jurisdictional issue under the case of Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 294, 76 L.Ed. 598, which the district court must decide anew." The Supreme Court in Crowell v. Benson approved the provision of the Longshoremen's and Harbor Workers' Act making the findings of the deputy commissioner final if supported by evidence and within the scope of his authority, but held that the district court did not err in permitting a trial ...

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