Petition for Writ of Certiorari — Hennigan v. Placid Oil Co.

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IN THE a

Supreme Court of the United States

OCTOBER TERM, 1974

MR. AND MRS. MALVIN HENNIGAN,

Petitioners, 7

versus

PLACID OIL COMPANY, ET AL, '

Respondents. ;

PETITION ON BEHALF OF MR. AND MRS. MALVIN

HENNIGAN FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

J. MINOS SIMON

1408 Pinhook Road

Post Office Box 52116 OCS

Lafayette, Louisiana 70501

Attorney for Petitioners

Paar vn < i

ERIE SRS Cast WITS SPIES Rete ES BS TRE QU TNE sh RMR ALR

INDEX

Page

OPINION BELOW ea ieeuteaneror’ i

JURISDICTION DEA Mera Moe ais dh 0: lacadele boty te we oaths 2

QUESTION PRESENTED ie yt 1S ese meea L 2

CONCISE STATEMENT OF THE CASE......... 4

SUMMARY OF ARGUMENT .................... 6

I Ce ee gt ed 9

oe eC» 43

PROOF OF SERVICE ........ fee ease wale er cen Ue 47

INDEX OF AUTHORITIES

Cases:

Argonne Co., Inc. vs. Hitaffer, 340 U.S. 852, 71

aA ee ee aes

Continental Grain Co. vs. iecee’ EBL. 585, 364

U.S. 19, 80 S.Ct. 1470, 4 L.Ed 2d 1540 | o>

Cooper Stevedoring Company, Inc. vs. Fritz

mopke, inc. 06 6.Ct 3174 ............;...2% 35, 43

Crumady vs. The Joachim Hendrik Fisser, 358°

Wie “8, TO RCL O05... 2... 25, 27, 28

Dougherty vs. New Orleans Railroad & Light

Co., (1913) 133 La. 933, 63 So. 493 .............. 12

Drake vs. Treadwell Construction Co., 299 F.2d

Be es TE Pee es ee ek. 33

Gray vs. Nathan, (1969) 221 So2d 859 ........... 12

aa she Shorbera Sr PO ee

INDEX OF AUTHORITIES (Continued)

Page

Halcyon Lines, et al, vs. Haenn Ship Ceilings

and Refitting Corp., 342 U.S. 282, 72 S.Ct.

BN aa Seb occas etn Rae i an ee eee im 20, 21

Hitaffer vs. Argonne Co., (1950) 183 F.2d

ME SOS OO Oe Let uw aedube teeten 16, 20, 35, 40

Lansburgh & Brothers vs. Clark, 127 F.2d 331 ...... 18

Moragne vs. States Marine Lines Inc., (1970)

398 U.S. 375, 90 S.Ct. 1772 .............. 36, 41, 42

Norton vs. Crescent City Ice Manufacturing Co.,

CTS UE UES OE 5 a cise bes fa ds hale Ove eS Ule-s 12

The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed.

ak War ORE Nee a pehee RNA shee Aline YR ACY A SO ee 29

Reed vs. Steamship Yaka, 373 U.S 410, 83 S.Ct.

ae NE AA AT NEA Rely Wynter on 8, 15

Reed vs. Warren, (1931) 172 La. 1082, 136 So.

ee eh ie tots Son Se eE SENT eC 11, 12

Rich vs. United States, 177 F.2d 688 ............ as:

Rodrigue vs. Aetna Casualty & Surety Company,

395 U.S. 352, 89 S.Ct. 1885 ....... 2, 3, 6, 7, 9, 13, 37

Ryan Stevedoring Co., Inc. vs. Pan-Atlantic

Steamship Corp, 350 U.S. 124, 76 S.Ct.

ENA deg 21, 22, 23, 24, 25, 38, 39, 43, 44, 45, 46

Smither & Co., Inc. vs. Coles, 242 F.2d 220, 77

Ee. PR 8 eee roa eee A eas eee 40, 41

Treadwell Construction Co. vs. United States,

pik wm OF lk | 33, 35, 44

iii

INDEX OF AUTHORITIES (Continued)

Page

Waterman SS. Corp. vs. Dugan & McNamara,

Inc., 364 U.S. 421, 81 SCt. 200 ........ 27, 28, 29, 43

Weyerhaeuser Steamship Co. vs. Nacirema

Operating Co., Inc., 355 U.S. 563, 78 S.Ct.

Ae ete) ps ROT ho A 24, 32, 33, 34, 43

Weyerhaeuser Steamship Company vs. United

States, 372 U.S. 597, 83 S.Ct. 926 ...... 29, 34, 35, 43

Other Authorities:

Longshoremen’s and Harbor Workers’ Compen-

sation Act, 33 U.S.C. 901, et seq. .. 2, 3, 7, 8, 13, 14, 15,

: 16, 17, 20, 31, 32, 38, 45

Louisiana Civil Code, Articles 2315, 2316, 2317,

oc SRE On te NRA apctige ele 6, 9, 10, 11, 12, 44

Outer Continental Shelf Lands Act, 43 U.S.C.

ee He. am, SERER ST Cle tes CS eee 2, 6, 9

Rule 54(b) of the Federal Rules of Civil Pro-

Oe ere Ce ee an Ce eT. 2, 5

Supreme Court Rule 19 ................../....... 2

cist ee ERI SS Pe a a 2

ve ese ng A, SARE POT oe AERO a 5

28 U.S.C. 2101 ...... Meeanaeutes PIS Dees ee eas cee dee

Es is or oA eee ea wabavan: 5

pee os} Ee ee ee Bn i

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

MR. AND MRS. MALVIN HENNIGAN,

Petitioners,

versus

PLACID OIL COMPANY, ET AL,

Respondents.

PETITION ON BEHALF OF MR. AND MRS. MALVIN

HENNIGAN FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND

, ASSOCIATE JUSTICES OF THE UNITED STATES

SUPREME: COURT:

This is an application for a writ of certiorari to the

United States Court of Appeals, Fifth Circuit, as to

its per curiam decision rendered on June 13, 1974,

(Hennigan v. Placid Oil Co., 496 F.2d 876, (reproduced

in accompanying Appendix at A-1), affirming a deci-

sion of the United States District Court, Western Dis-

trict of Louisiana, whereby petitioners’ claim was dis-

missed on motion for summary judgment rendered

pursuant to F.R.C.P., Rule 54(b). Neither court as-

Signed any reasons for judgment.

JURISDICTION

This application for a writ of review invokes the jur-

isdiction of the court pursuant to 28 U.S.C. 1254; 28

U.S.C. 2101 and S.Ct. Rules 19, et seq.

QUESTION PRESENTED

Petitioners’ son, Gary Neil Hennigan, was an em-

ployee of Penrod Oil Company on November 19, 1971,

end was working on a stationary platform (or artificial

island) in navigable waters off the coast of Louisiana

at a point approximately ninety-five (95) miles into

the Gulf of Mexico and thus was a longshoreman within

the contemplation of the Outer Continental Shelf Laads

Act, 43 U.S.C. 1333, as interpreted and applied in

Rodrigue vs. Aetna Casualty & Surety Company, 89

S.Ct. 1835. On November 19, 1971, he was killed alleged-

ly as a result of the concurrent negligence of agents

of his employer, Penrod. Gary Nei] Hennigan was un-

married at the time of his death, and left no

dependents.

Petitioners, being non-dependents of their deceased

son, are ineligible for benefits due to dependents under

the Longshoremen’s and Harbor Workers’ Act, 33

U.S.C. 904 (Reproduced in accompanying Appendix at

A-2). Thus, Penrod has incurred no actual liability

within the contemplation of 33 U.S.C. 905 as a result

of the death of petitioners’ son.

Under Louisiana law, made applicable by Rodrigue,

supra, petitioners have an action in damage against

Penrod for the loss of the love, affection and society

of their son. Invoking such law, petitioners filed an

original complaint before the United States District

Court, Western District of Louisiana, Lafayette Divi-

sion, against Penrod and others seeking the recovery

of damage in the amount of ONE HUNDRED FIFTY

THOUSAND AND NO/100 ($150,000.00) DOLLARS

each. Penrod filed a motion for summary judgment,

contending that it was immune from liability to peti-

tioners for the damages sought by virtue of the provi-

sions of 33 U.S.C. 905, notwithstanding that Penrod has

incurred no actual liability contemplated by Section

905 of the Longshoremen Act. The District Court grant-

ed summary judgment, and the appellate court af-

firmed that decision. The essential question presented

by this application, therefore, is:

Is a longshoreman employer immune from

liability to parents, who are grievously injured

by the death of their son, allegedly due to the

negligence of the employer, in a Rodrigue set-

ting, where,

(a) applicable Louisiana law grants to the

parents an independent action in damage for

the loss of the love, affection and society of

their son,

(b) the parents, being admitted non-de-

pendents, have not received, do not seek, and

are not eligible for benefits under the Long-

shoremen’s and Harbor Worker’s Compensa-

tion Act, with the consequence that,

as contemplated by Section 904 of the Long-

shoremen’s and Harbor Workers’ Compensa-

tion Act? ;

CONCISE STATEMENT OF THE CASE

The facts, framed by the pleadings, discovery in-

terrogatories and affidavits, are not in dispute. Peti-

tioners’ son was employed by Penrod Oil Company

to work on a stationary platform or artificial island

in navigable waters at a point approximately ninety-

five (95) miles off the coast of Louisiana into the Gulf

of Mexico. While acting within the course of that em-

ployment. on November 19, 1971, he was killed as the.

result of the alleged concurrent negligence of his em-

ployer. Petitioners’ son was never married, fathered

no children and adopted none, and at the time of his

death he had no dependents and contributed to the sup-

port of no one.

On October 12, 1972, invoking the provisions of ap-

plicable state law, which makes the wrongful killing

of petitioners’ son an actionable tort, petitioners filed

an original complaint in the United States District

Court, Western District of Louisiana, Lafayette Divi-

sion, seeking damages each in the sum of ONE HUN-

DRED FIFTY THOUSAND AND NO/190 ($150,000.00)

DOLLARS for the loss of the love, companionship, af-

fection and society of their son. The complaint was

filed against Placid Oil Company, Penrod Drilling

Company, and Penrod’s insurer, Hartford Accident &

Indemnity Company. The jurisdiction of the District

Court was invoked pursuant to the provisions of

43 U.S.C. 1333 and 28 U.S.C. 1332.

In due course, Penrod Drilling Company and Hart-

ford Accident & Indemnity Company filed a motion

for summary judgment on the alleged grounds that

petitioners’ “‘ciaim against respondents failed to state

a claim upon which relief can be granted and that

plaintiffs’ exclusive remedy herein against respond-

ents is against (sic) the Longshoremen and Harbor

workers’ Act.” The motion for summary judgment

was granted. On motion of petitioners, invoking the

provisions of Rule 54(b) of the Federal Rules of Civil

Procedure, the District Court entered a final judgment

on January 3, 1974, dismissing Penrod Drilling Com-

pany as a defendant in these proceedings.

Petitioners filed their notice of appeal, returnable

to the Court of Appeals, Fifth Circuit, on January 10,

1974.

The Court of Appeals, Fifth Circuit, placed petition-

ers’ appeal on its summary calendar pursuant to Rule

18, Fifth Circuit, and on June 13, 1974, the Court of

Appeals rendered a per curiam decision pursuant to

local Rule 21, reading in its entirety: “AFFIRMED.”

(496 F.2d 876).

Neither the District Court nor the Court of Appeals

assigned any reasons for the dismissal of petitioners’

ee ee ee ae ete

ee ea

SES RANA i OA RR OSEAN,

Ninstipbadae ies

cause of action against Penrod. It is assumed, how-

ever, that it is based upon the grounds urged in the

motion for summary judgment. Petitioners seek a writ

of certiorari to review the decision of the Court of Ap-

peals, Fifth Circuit.

SUMMARY OF ARGUMENT

In the factual setting of the controversy presented

by this petition, the Outer Continental Shelf Lands Act,

43 U.S.C. 1331, et seq., (hereinafter “Lands Act”; re-

produced in accompanying Appendix at A-3) applies.

Rodrigue, supra, teaches that “this law was to be {ed-

eral law of the United States, applying state law only

as federal law and then only when not inconsistent

with applicable federal law.” 89 S.Ct. at P. 1837.

Applicable Louisiana law consists of Louisiana Civil

Code, Articles 2315, 2316, 2317, and 2320. This state law

creates and imposes a primary duty upon Penrod not

to negligently kill petitioners’ son and makes any such

wrongful killing an actionable tort. This law also con-

fers upon petitioners the right to recover against Pen-

rod for the loss of the society of their son, in the event

of a breach by Penrod of the primary duty not to neg-

ligently kill their son. This cause of action is conferred

directly and exclusively upon petitioners. The asser-

tion by petitioners of their claim in this lawsuit, there-

fore, is not an assertion of any right which their de-

ceased son might have. Petitioners do not claim “un-

der or through” their son. Theirs is an assertion of

. their rights on account of the breach of an independent

| duty imposed upon their son’s employer and owed to

them by the employer as the result of the provisions

of Louisiana law.

This state law — this cause of action — must prevail

as federal law unless and until it is ousted by applica-

ble, inconsistent federal law, because, “for federal law

to oust adopted state law, federal law must first ap-

ply.” Rodrigue, 89 S.Ct. at P. 1839.

Implicit in the non-opinion decisions of the courts

below is the conclusion that these courts assumed that

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 33 U.S.C. 901, et seq., and particularly Sec-

tions 904 and 905, applied and that such federal law,

being inconsistent with the state law invoked by peti-

tioners, ousted applicable state law. However, a care-

ful scrutiny of the Longshoremen’s Act and the jur-

isprudence interpreting it compels the conclusion that

the courts below committed reversible error in espous-

ing such a conclusion.

Given a situation where an employer actually incurs

liability as prescribed in Section 904, it would appear

that the literal wording of Section 905 lends support

to the decisions of the court below. The literal wording

indicates that the incurrence of liability by the employ-

er to pay the benefits prescribed by Section 904 in-

sulates him against any “other liability” to “parents”

and “anyone otherwise entitled to recover damages

from such employer at law or in admiralty on account

of such injury or death.” But this is not the case. This

is not the case because in deciphering the purpose and

meaning of Section 905 “we cannot ** consider the

wording of the statute alone,” nor can there be “blind

adherence to the superficial meaning of” the Long-

shoremen’s Act. Reed vs. Steamship Yaka, 373 U.S.

410, 83 S.Ct. 1349, 1353. This section of the Longshore-

men’s Act must be viewed “in the light of our prior

cases ** the holdings of which have been left un-

changed by Congress.” Reed, 83 S.Ct. at P. 1353. In

fact petitioners are not “parents” within the contem-

plation of Section 905, because they are not dependents

of the injured employee. Section 902 (15).

The construction of Section 905 in a manner that

avoids “‘blind adherence to the superficial meaning of

the Longshoremen’s Act” has led to a series of deci-

sions by our Supreme Court casting a Section 905 em-

ployer for “other liability” in favor of others “other-

wise entitled to recover damages from such employer

at law or in admiralty on account of such injury or

death” of an employee, even where the employer has

actually incurred the liability prescribed in Section 904.

The result of this jurisprudence is to the effect that

where a third person, such as petitioners, is suing in

his or her own right on account of the breach of some

independent duty owed to them by the employer, such

as is involved in their case, even though the operative

facts out of which this independent right and correla-

tive duty arose are the same as those out of which

the injured employee recovers under the Act, Section

905 of the Act does not proscribe the third person’s

cause of action. The decisions of the courts below hold-

ing that Section 905 does apply and does proscribe peti-

tioners’ cause of action is contrary to the decisions

of our Supreme Court and therefore must be reversed.

ARGUMENT

PPD te

Before Congress enacted the Outer Continental Shelf |

Lands Act, 43 U.S.C. 1331, et seq., (hereinafter “Lands

Act”), persons working on fixed structures over navi-

gable waters beyond a marine league from the con-

tinental shoreline worked in a legal no man’s land,

without right to redress injuries, fatal and non-fatal,

negligently inflicted on them. Death on the High Seas

Act did not apply, because the structures were not nav-

igable aids and bore no relation to such functions.

Rodrigue, 89 S.Ct. at P. 1835. The Jones Act and gen-

eral maritime law likewise did not apply, because the

structures were not vessels. 89 S.Ct. at P. 1841. State

law did not apply because these structures were be-

yond the sovereignty reach of the states. With the pas-

sage of the Lands Act a new body of law was created

and made applicable to these structures. Rodrigue

teaches that “this law was to be federal law of the

United States, applying state law only as federal law

and then only when not inconsistent with applicable

federal] law’’. Rodrigue, 89 S.Ct. at P. 1837.

Petitioners’ son was negligently killed while on a

fixed platform over navigable waters ninety-five (95)

miles off the coast of Louisiana. Thus, this occurrence

falls within the contemplation of the Lands Act. Lou-

isiana law, therefore, is applicable as federal law to

the extent not inconsistent with applicable federal] law.

In part pertinent, the Louisiana Civil Code provides:

Article 2315:

“Every act whatever of man that causes

damage to another obliges him by whose fault

it happened to repair it.

* * &€

“The right to recover all other damages

caused by an offense or quasi offense, if the

injured person dies, shall survive for a period

of one year from the death of the deceased in

favor of: *** (2) the surviving father and

mother of the deceased, or either of them, if

he left no spouse or child surviving; ***.

The survivors in whose favor this right of ac-

tion survives may also recover the damages

which they sustained through the wrongful

death of the deceased. * * *”

Article 2316:

“Every person is responsible for the damage

he occasions not merely by his act, but by his

negligence, his imprudence, or his want of

skill.”

Article 2317:

“We are responsible, not only for the dam-

age occasioned by our own act, but for that

which is caused by the act of persons for whom

we are answerable, or of the things which we

have in our custody. This, however, is to be

understood with the following modifications.”

11 .

Article 2320:

“Masters and employers are answerable for

the damage occasioned by their servants and

‘

overseers, in the exercise of the functions in S

which they are employed. ***” <

Louisiana Civil Code, Article 2315, as authoritatively

interpreted by Louisiana courts, exemplified by Reed &

vs. Warren, (1931) 172 La. 1082, 136 So. 59,' creates \

1136 So. at P. 61 \

“The case depends upon the construction to be put upon

the provisions of article 2315 of the Civil Code, which, by the

several amendments of the article, give a right of action for

damages for the death of a person, in addition to the right of

action in favor of certain surviving relations for damages for

personal injuries suffered by a person who thereafter died.

Under the article as originally enacted, which was article 16

of title 4, book 3 of the Digest of 1808, and which became

article 2294 of the Civil Code of 1825, an action for damages

fer personal injuries abated on the death of the person injured.

Hubgh v. N.O. & C.R.R.Co., 6 La.Ann 498, 54 Am Dec. 565.

The article then merely declared: ‘Every act whatever of man,

that causes damages to another, obliges him, by whose fault

it happened, to repair it.’ By Act No. 223 of 1855, the article

was amended by the addition thereto: ‘The right of this

action shall survive in cases of death in favor of the minor

children and widow of the deceased or either of them, and in

default of these in favor of the surviving father and mother

or either of them, for the space of one year from the death.’

As thus amended the article was adopted as article 2315 of

the Civil Code in the revision of 1870. Even then, the article

gave 2 right of action, to the survivors mentioned, for only

such suffering as the injured person had endured, and gave

no right of action for any loss or injury suffered by a surviv-

o ing relation, by the death of a person fatally injured. Earhart

v. N.O. & C. R. R. Co., 17 La.Ann 243: McCubbin, Tutor, v.

Hastings, 27 La.Ann. 713: Vredenburg v. Behan, 33 La.Ann.

627; Walton v. Booth, 34 La.Ann. 913: Van Amburg v. V., S. &

P. Ry. Co., 37 La.Ann. 650, 55 Am. Rep. 517.

wer el Sea aR aL ee ee ee ee

several causes of action for wrongful death. There is

the right to recover the pecuniary loss sustained by

a dependent survivor. There is the right to recover

for the pains and sufferings endured by the deceased

during the interim between injury and death. And fi-

nally, there is the right to recover for the loss of the

society of the deceased. Dougherty vs. New Orleans

Railroad & Light Co., (1913) 133 La. 993, 63 So. 493;

Reed vs. Warren, supra; Norton vs. Crescent City Ice

Manufacturing Co., (1933) 146 So. 753; Gray vs.

Nathan, (1969) 221 So.2d 859. The cause of action for

the loss of the society of their son is conferred directly

and exclusively upon petitioners. It is not derivative

of nor does it arise from their son. Thus the assertion

of their claim in this lawsuit is not an assertion of

any right which their son might have had. Theirs is

an assertion of their rights on account of the breach

of an independent duty imposed upon their son’s em-

ployer and owed to them by the employer as a result

of the provisions of Louisiana Civil Code, Article 2315.

This state law creates and imposes a primary duty

upon Penrod not to negligently kill their son and makes

any such wrongful killing an actionable tort. In the

1Continued

“It was by Act No. 71 of 1884 that the article was amended

so as to give to the survivors therein mentioned a right of

action for the damages suffered by them by the death of

the person fatally injured through the fault of another. The

amendment consisted of the adding of this sentence: ‘The sur-

vivors above mentioned may also recover the damages sus-

tained by them by the death of the parent or child, or husband

or wife, as the case may be.’ By Act No. 120 of 1908, the

article was amended so as to extend the right of action to the

brothers and sisters, or either of them, in the event that none

of the relations already mentioned in the article survived the

injured person. * * *”

pursuit of their claim, therefore, petitioners are third

persons vis-a-vis their son’s employer, Penrod. As

such, Penrod is liable in damages to petitioners.

This state law — this cause of action — must prevail

as federal] law unless and until it is ousted by applicable

inconsistent federal law, because “for federal law to

oust adopted state law, federa] law must first apply.”

Rodrigue, 89 S.Ct. at P. 1839.

Implicit in the nonopinion decisions of the courts be-

low is the conclusion that these courts assumed that

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 33 U.S.C. 901, ‘et seq., and particularly Sec-

tions 904 and 905, applied and that such federal law,

being inconsistent with the state law invoked by peti-

tioners, ousted applicable state law. However, a care-

ful scrutiny of the Longshoremen’s Act and the juris-

prudence interpreting it compels the conclusion that

the courts below committed reversible error in espous-

ing such an assumption.

The erroneous assumption of the courts below

is based upon the conclusion that Section 905, which

speaks of an employer’s exclusiveness of liability, cre-

ates an all-inclusive immunity in favor of an employer

against any other liability, which is absolute and in-

flexible and applicable, whether or not the employer

is actually liable for the benefits spelled out in Section

904 of the Longshoremen’s Act. Such a conclusion, how-

ever, is at war with the humanitarian policy of the

Lands Act to show special solicitude for those who are

injured within its jurisdiction. Such a conclusion is also

oo ok : |

wet

contrary to the jurisprudence which has dealt with the

exclusiveness of liability of Section 905 and other com-

parable exclusivity provisions of federal law.

Perhaps the beginning point of demonstrating re-

versible error is a quotation of Section 905, relied upon

by the courts below. It reads:

“The liability of an employer prescribed in

section 904 of this title shall be exclusive and in

place of all other liability of such einployer to

the employee, his legal representative, hus-

band or wife, parents, dependents, next of kin,

and anyone otherwise entitled to recover dam-

ages from such employer at law or in admiral-

ty on account of such injury or death, except

that if an employer fails to secure payment of

compensation as required by this chapter, an

injured employee, or his legal representa-

tive in case death results from the injury, may

elect to claim compensation under this chap-

ter, or to maintain an action at law or in ad-

miralty for damages on account of such injury

or death. In such action the defendant may not

plead as a defense that the injury was caused

by the negligence of a fellow servant, nor that

the employee assumed the risk of his employ-

ment, nor that the injury was due to the con-

tributory negligence of the employee.”’

Given a situation where an employer actually incurs.

liability as prescribed in Section 904, it would appear

that the literal wording of Section 905 lends support

to the decisions of the court below. The literal wording

indicates that the incurrence of liability by the em-

ployer to pay the benefits prescribed by Section 904

insulates him against any “other liability” to “par-

ents” and ‘‘anyone otherwise entitled to recover dam-

ages from such employer at law or in admiralty on

account of such injury or death.” But this is not the

case. This is not the case because in deciphering the

purpose and meaning of Section 905 “we cannot **

consider the wording of the statute alone”, nor can

there be “blind adherence to the superficial meaning

of” the Longshoremen’s Act, said the court in Reed

vs. Steamship Yaka, 373 U.S. 410, 83 S.Ct. 1349, 1353.

This section of the Longshoremen’s Act must be viewed

“in the light of our prior cases ** the holdings of

which have been left unchanged by Congress.” Reed,

83 S.Ct. at p. 1353. ’ |

The superficial meaning of the word “parents” con-

tained in Section 905 would seemingly include petition-

ers. Actually, that word does not include petitioners.

The term or word “parents” as used in 905 is defined

in Section 902(15) as follows:

“The term ‘parent’ includes step-parents

and parents by adoption, parents-in-law, and

any person who for more than three years

prior to the death of the deceased employee,

stood in the place of a parent to him, if depend-

ent on the injured employce.”

Thus to be a “parent” in the contemplation of Section

905 one must be “dependent on the injured emp|qiige "

It is an uncontradicted fact that petitioners were not

dependent on their son at any time material to this

litigation. They are his parents in the biologic sense

and not as contemplated by Section 905, In that status

under applicable Louisiana law, petitioners have an

indestructible cause of action to recover damages for

the loss of the society of their son.

The construction of Section 905 in a manner that

' avoids “blind adherence to the superficial meaning of

the Longshoremen’s Act” has led to a series of deci-

sions casting an employer for “other liability” in favor

of others “otherwise entitled to recover damages from

such employer at law or in admiralty on account of

such injury or death” of an employee, even where the

employer had actually incurred the liability prescribed

in Section 904. Such jurisprudence instances an inter-

pretation of Section 905 contextually with other statutes

and consistently with the rationale and purpose of the

.. Longshoremen’s Act.

Perhaps the first significant decision pertinent to our

inquiry was rendered in Hitaffer vs. Argonne Co.,

(1950) 183 F.2d 811. This case instances a lawsuit, filed

in tie District Court in the District of Columbia, by

a w.ie for loss of consortium arising out of injuries

sustained by her husband, who had received com-

pensation for his injuries pursuant to the Longshore-

men’s Act. Her claim was dismissed by the District

Court on defendant’s plea that Section 905 excluded

any such “other liability”. That decision was reversed

on appeal. In reversing, and in speaking to the pro-

scription against other liability contained in Section

905, the Court observed: (183 F.2d at Pp, 819-820)

“There can be no doubt but that this section

is designed to make the employer’s liability

under this statute exclusive of any other lia-

bility either at law or in admiralty to the in-

jured employee or anyone suing in the employ-

ee’s right. But where a third person is suing in

his or her own right on account of the breach

[of] some independent duty owed them by the

employer, even though the operative facts out

of which this independent right and correlative

duty arose are the same as those out of which

the injured employee recovers under the Act,

the Act does not proscribe the third person’s

cause of action. * * *”

In the course of the opinion the court adverted to

several decisions of the District Court pertinent to its

inquiry anc approvingly quoted the following pertinent

language: (183 F.2d at P. 820)

“*** ‘Nicholson having secured the pay-

ment to its employees of compensation under

the Longshoremen’s and Harbor Workers’

Compensation Act *** is immune from

suits for damages resulting from lipellant’s in-

juries brought by the libellant or anyone in his

right, according to the provision of Section 905

of the Act. But the right in admiralty to con-

tribution between wrongdoers does not stand

on subrogation but arises directly from the

| EO ot) Wate eer ee

tort. *** The immunity given Nicholson by

the statute from suits arising out of libellant’s

injuries furnishes no defense against Hedger’s

claim to contribution as between joint tort-

feasors.’

“And in the case of Rich v. United States

where the injured employee, after receiving

benefits under the statute for some months,

elected to sue the ship owner, the United

States, for whom he and his employer were

working when the injury occurred, the court

allowed the employer to be brought in by third

party practice, despite his contention that his

liability on account of the injury was exclu-

Sive under the Act, saying: ‘“*** [T]he

third party does not sue the employer for dam-

ages “‘on account of” the injury to or death of

the employee but for breach of an independent

duty owing to the third party by the employ-

er.’ 177 F.2d at P. 691.

“In this jurisdiction the action for loss of

consortium does not stand on subrogation but

arises directly from the tort. Thus in Lans-

burgh & Brothers vs. Clark, where the hus-

band joined in his wife’s action for injuries sus-

tained in the defendant’s store, a jurv verdict

denying the wife recovery but giving damages

to the husband for loss of consortium was up-

held, this court saying: ‘* ** In the prosecu-

tion of these separate and independent rights

there is no privity, and a judgment against one

is not a bar to an action by the other.’ (75 US.

App.D.C. 339, 127 F.2d 332).”

Finally the court concluded: (183 F.2d at P. 820)

“There can be no doubt, therefore, the injury

to the consortium is an injury to a right which

is independent of any right in the other spouse

and to which the defendant owes an independ-

ent duty. And in view of the fact that this ap-

pellant is suing in her own right for the breach

of an independent duty owing her, we cannot

say that the Act was designed to deprive her ale

of her action.

“Moreover it would be contrary to reason to

hold that this Act cuts off independent rights

of third persons when the whole structure dem-

onstrates that it is designed to compensate in-

jured employees or persons suing in the em-

ployee’s right on account of employment con-

nected disability or death. It can hardly be

said that it was intended to deprive third per-

sons of independent causes of action where the

Act does not even purport to compensate them

for any loss.”

The defendant employer applied for a writ of cer-

tiorari to review this decision but significantly cer-

tiorari was denied on October 16, 1950. Argonne Co.,

Inc. vs. Hitaffer, 340 U.S. 852, 71 S.Ct. 89. As this deci-

sion was permitted to stand by this court it meant

that a third person (a person not entitled to the benefits

ee eT rt en

bc Sn ee Be

of Section 904) suing in his own right on account of

the breach of some independent duty owed to him by

the employer, even though the operative facts out of

which the independent right and correlative duty arose

were the same as those out of which the injured em-

ployee might recover under the Act, was not barred

by the proscription of Section 905. The court’s tacit

approval of Hitaffer, reflected by the denial of the writ

of certiorari, was adumbrative of the decisions of the

Supreme Court that were to follow, which carved out

additional exceptions to the proscription of Section 905

consistent with the doctrine of Hitaffer.

The first case to reach the court after Hitaffer in

1952 was indecisive of the question resolved in Hitaffer.

Halcyon Lines, et al, vs. Haenn Ship Ceiling and Re-

fitting Corp., 342 U.S. 282, 72 S.Ct. 277. In that case

Halcyon Lines hired Haenn Ship Corporation to make

repairs on a Halcyon ship which was moored in naviga-

ble waters. One of Haenn’s employees was injured

aboard ship while engaged in making these repairs.

Alleging that his injuries were caused by Halcyon’s

negligence and the unseaworthiness of its vessel, he

brought action for damages against Halcyon. Halcyon

impleaded Haenn as a joint tort-feasor. The District

Court treated Halcyon and Haenn as joint tort-feasors

and condemned each to pay half of the damages as

reflected in the judgment rendered in favor of the in-

jured employee. The Court of Appeals modified the

decision and limited Haenn’s duty of contribution to

its liability for longshoremen benefits due to employ-

ees. The court granted certiorari “because of the con-

flicting views taken by the circuit as to the existence

of and the extent to which contribution can be obtained

in cases such as this.” The court spoke to the admiralty

doctrine of contribution between mutual wrongdoers

and said, “This maritime rule is of ancient origin and

has been applied in many cases, but this court has

never expressly applied it to non-collision cases. Hal-

cyon now urges us to extend it to non-collision cases

and to allow a contribution here based upon the relative

degree of fault of Halcyon and Haenn as found by the

jury. Haenn urges us to hold that there is no right

of contribution, or in the alternative, that the right

be based upon an equal division of all damages.” 72

S.Ct. at P. 279. The court declined to make any judicial

inroads into Section 905 and ordered the dismissal of

the contribution proceedings against Haenn saying:

(72 S.Ct. at P. 280)

‘‘We have concluded that it would be unwise

to attempt to fashion new judicial rules of con-

tribution and that the solution of this problem

should await congressional action. * * *”

But congressional action was not forthcoming. In

1956 the court was again confronted with the essential-

ly same disturbing question presented by Halcyon.

Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship

Corporation, 350 U.S. 124, 76 S.Ct. 232. The essential

facts and the questions presented in Ryan are succinct-

ly stated by the court in these words: (76 S.Ct. at P.

233)

“This case presents two questions as to the

liability of a stevedoring contractor to reim-

burse a shipowner for damages paid by the

latter to one of the contractor’s longshoremen

on account of injuries received by him in the

course of his employment on shipboard.

1. The first question is whether the Long-

shoremen’s and Harbor Workers’ Compensa-

tion Act precludes a shipowner from asserting

such a liability.

2. The second is whether the liability exists

: where a contractor, without entering into an

express agreement of indemnity, contracts

to perform a shipowner’s stevedoring opera-

tions and the longshoreman’s injuries are

caused by the contractor’s unsafe stowage of

the ship’s cargo. * * *”

The court answered the first question negatively and

held that notwithstanding the literal wording of Section

905, the employer was liable to the shipowner. In so

holding, the court said: (76 S.Ct. at P. 235)

le sect oa a abet pare ada ele ala SS

“*** The Act nowhere’ expressly ex-

cludes or limits the shipowner’s right, as a

third person, to insure itself against such a

liability either by a bond of indemnity, or the

contractor’s own agreement to save the ship-

owner harmless. Petitioner’s agreement in the

instant case amounts to the latter for, as will

be shown, it is a contractual undertaking to

stow a cargo ‘with reasonable safety’ and thus

to save the shipowner harmless from petition-

er’s failure to do so.”

The court then reasoned that the stevedoring con-

tractor had failed to carry out its contractual obliga-

tion and this failure brought about the injuries. There-

upon the court concluded: (76 S.Ct. at P. 235-236)

“«*s** Such a liability springs from an in-

dependent contractual right. It is not an action

by or on behalf of the employee and it is not

one to recover damages ‘on account of’ an em-

ployee’s ‘injury or death’. It is a simple action

to recover, under a voluntary and self-suffi-

cient contract, a sum measured by foreseeable

damages occasioned to the shipowner by the

injury or death of a longshoreman on its ship.”

The court then likened this liability to that of a sup-

plier of defective ship’s gear to a shipowner who sues

for reimbursement for damages due to a longshoreman

for injury or death of the longshoreman as the result

of such defective gear. Significantly then the court

said, ‘The coincidence that the loading contractor here

happens to be the employer of the injured Jongshore-

man makes no difference in principle. While the Com-

pensation Act protects a stevedoring contractor from

actions brought against it by its employee on account

of the contractor’s tortious conduct causing injury to

the emplovee, the contractor has no logical ground for

relief from the full consequences of its indenendent

contractual obligation, voluntarily assumed to the

eae Re Cie eer Lean ee te ae eta err ee ee

pte

shipowner, to load the cargo properly.” (76 S.Ct. at

P. 236)

The court thus fashioned a judicial rule of liability

of an employer which extended over and beyond the

employer’s liability for benefits prescribed by Section

904, notwithstanding the proscription against “other

liability” demonstrated by the literal wording of Sec-

tion 905. At this point in the development of the juris-

prudence, the employer’s “additional” liability was

limited to one arising out of contract. The court de-

clined to determine whether or not the emplover could

be held liable for the breach of a noncontractual duty

notwithstanding the proscription of Section 905. In so

declining, the court observed: (76 S.Ct. at P. 237)

‘* * * Because respondent in the instant

case relies entirely upon petitioner’s contrac-

tual obligation, we do not meet the question of

a noncontractual right of indemnity or of the

relation of the Compensation Act to such a

right.”

In 1958 a similar controversy as in Ryan was present-

ed with the added question of whether the third party

claimant had a right to trial by a jury of his third

party claim. Weyerhaeuser Steamship Co. vs.

Nacirema Operating Co., Inc., 355 U.S. 563, 78 S.Ct.

438. Respondent, a stevedoring company, contracted

to furnish petitioner, a shipowner, with stevedoring

services and a longshoreman employed by respondent

was injured while unloading petitioner’s vessel. In re-

sponse to the longshoreman’s lawsuit, petitioner im-

pleaded respondent claiming a right to indemnity for

any damages the longshoreman might recover. The

jury awarded a verdict to the longshoreman and

against the shipowner and after receiving the verdict

the judge decided that it was dispositive of the third

party action and directed a verdict for respondent.

On review this court essentially reiterated what was

said in Ryan, as to the effect of a stevedoring company

undertaking to faithfully furnish stevedoring services

as may be required, by holding that a breach of such

a contractual undertaking renders it liable to a ship-

owner for all damages which the shipowner must pay

to the stevedoring employee injured as a result of the

failure of the stevedoring company to properly dis-

charge its contractual undertaking. The scope of the

stevedoring company’s contractual undertaking was

extended beyond the compass of Ryan in these words:

(78 S.Ct. at P. 441)

“We believe that respondent’s contractual

obligation to perform its duties with reason-

able safety related not only to the handling of

cargo, as in Ryan, but also to the use of equip-

ment incidental thereto, such as the winch

shelter involved here.”

Weyerhaeuser was followed in 1959 by Crumady vs.

The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445.

Crumady instances the watering down of the contract

basis of liability of a stevedore employer beyond the

proscription of Section 905.

Petitioner Crumady was an employee of a stevedor-

ing company engaged in transferring a cargo of lum-

ber from the ship Joachim Hendrik Fisser of German

registry to a pier at Newark, New Jersey. While so

engaged, he was injured and brought admiralty suit

by libel in rem against the vessel. The vessel implead-

ed the stevedoring contractor.

The District Court found the vessel unseaworthy and

held it liable to the stevedore. The District Court also

directed the stevedoring company to indemnify the

vessel to the extent of the judgment against the vessel

on the finding that the vessel was rendered unsea-

worthy as a result of the wrongful conduct of the steve-

doring company’s employees. The Court of Appeals

reversed, holding that the vessel was not unseaworthy.

On petition to this Court, however, the decision of the

Court of Appeals was reversed. On the question of the

third party action of the vessel against the stevedoring

company, the stevedoring company contended that it

had contracted for stevedoring service not with the

vessel owner but with the charterer of the vesse] and

that, therefore, there was no contractual basis for the

vessel’s third party claim against the stevedoring com-

pany. The court rejected that cortention and in so do-

ing expanded the class of persons not included in the

proscription of Section 905 to third party beneficiaries.

Said the court in so holding: (79 S.Ct. at P. 448)

“We think this case is governed bv the prin-

ciple announced in the Rvan case. The warran-

ty which a stevedore owes when he goes

aboard a vessel to perform services is plainly

for ‘he benefit of the vessel whether the ves-

sel’s owners are parties to the contract or not.

That is enough to bring the vessel into the zone

of modern law that recognizes rights in third-

party beneficiaries. * * *”

Thus as of 1959 the right to recover “other liability”

against a Section 905 employer on account of the

breach of some independent duty owed to the claimant

by the employer, even though the operative facts out

of which the independent right and correlative duty

arose were the same as those out of which the injured

employee could recover under the Act, was extended

to third party beneficiaries of contracts creating the

duty that was breached.

Crumady was followed in 1960 by Waterman SS.

Corp. vs. Dugan & McNamara, Inc., 364 U.S. 421, 81

S.Ct. 200. Waterman instances an extension of the third

party beneficiary theory of liability enunciated in

Crumady.

In Waterman the owner of the vessel was sued by

a longshoreman who was injured while aboard the ves-

sel in the course of his employment with the defendant

stevedoring company. The vessel owner settled his

claim before trial and by way of a third party com-

plaint sought to recover from the stevedoring company

the amount which he paid in satisfaction of the long-

shoreman’s claim. In defense to the third party claim

the stevedoring company alleged that ‘“‘there had been

no direct contractual relationship between it and the

petitioner covering the stevedoring services ren-

dered.” At trial it was stipulated by the parties that

this allegation was correct, “it appearing that the con-

Signee of the cargo, not the petitioner, had actually

engaged the respondent to unload the ship.” The Dis-

trict Court directed a verdict for the respondent hold-

ing that the shipowner “had no right of indemnity

against the stevedore under the circumstances alleged

in the absence of a direct contractual relationship

between them.” The Court of Appeals affirmed. Cer-

tiorari was granted “to consider whether in a situation

such as this the absence of a contractual relationship

between the parties is fatal to the indemnity claim.”

The essential difference between the factual issues of

Crumady and Waterman is that in Crumady the con-

tract with the stevedoring company was between the

charterer of the vessel and the stevedoring company,

whereas in Waterman the contract was between the

stevedoring company and the consignee of the cargo.

In further watering down the contract basis of liability

and extending Crumady, the court reasoned as follows:

(81 S.Ct. at P. 202)

“* * * We can perceive no difference in

principle, so far as the stevedore’s duty to in-

demnify the shipowner is concerned, whether

the stevedore is engaged by an operator to

whom the owner has chartered the vessel or

by the consignee of the cargo. Nor can there

be any significant distinction in this respect

whether the longshoreman’s original claim

was asserted in an in rem or an in personam

proceeding. In the Ryan and Weyerhaeuser

cases in personam liability was asserted. In

the Crumady case the injured stevedore had

brought an in rem proceeding. The ship and

its owner are equally liable for a breach by

the contractor of the owner’s nondelegable

duty to provide a seaworthy vessel. The Osceo-

la, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed.

760; cf. Continental Grain Co. vs. Barge FBL-

, 585, 364 U.S. 19, 80 S.Ct. 1470, 4°L.Ed.2d 1540.

The owner no less than the ship, is the bene-

ficiary of the stevedore’s warranty of work-

manlike service.”

Waterman was followed on April 1, 1963, by Weyer-

haeuser Steamship Company vs. United States, 372

U.S. 597, 83 S.Ct. 926. As we have seen up unti] Weyer-

haeuser, the “other liability” assessable against a Sec-

tion 905 employer was confined to that liability result-

ing from the breach by the employer of a contractual

duty. Weyerhaeuser instances an enlargement of the

employer’s “other liability” by bringing within the

compass of Section 905 the concept of “negligence”

as a basis for the employer’s liability over and beyond

his liability prescribed by Section 904. Weyerhaeuser

involved a collision between a vessel belonging to the

United States and one belonging to Weyerhaeuser.

Weyerhaeuser brought action against the United

States under the Public Vessels Act to recover his

damages. A cross bill was filed, and the District Court

after a hearing found that the collision had occurred

through the mutual fault of both vessels. Applying

the federal admiralty rule of divided damages the

court held that each party was entitled to recover

THM OQ

eo TRA ae

| Sereercmees cere WES thant Reet 2

from the other one-half of its provable damages and

court costs.

An employee of the United States aboard the United

States vessel sustained injuries in the collision. He re-

ceived compensation for these injuries under the Fed-

eral Employees’ Compensation Act. He also filed a

claim, against Weyerhaeuser to recover damages. His

lawsuit was settled by Weyerhaeuser paying the em-

ployee $16,000.00 and the employee then repaid the

United States for the amount which had previously

been awarded him as statutory compensation, as re-

quired by the Compensation Act. Weyerhaeuser includ-

ed as part of his provable damages the $16,000.00 which

he paid to the government employee. The parties stip-

ulated that the $16,000.00 payment constituted reason-

able settlement of the employee’s claim, but the gov-

ernment took the position that under the exclusivity

provision of Section 7(b) of the Federal Employees’

Compensation Act the government’s liability was lim-

ited to compensation benefits payable to its employees.

The District Court rejected the government’s posi-

tion and entered the decree which recognized the

$16,000.00 paid by Weyerhaeuser as part of his prova-

ble ‘damages. The Court of Appeals reversed, “re-

rnanding the case to the District Court with directions

to recompute the damages after excluding the Ostrom

seitlement,” holding that the exclusive: liability pro-

visions of Section 7(b) of the Compensation Act pre-

cluded any liability of the United States on account

of the petitioner’s payment for Ostrom’s personal in-

jury. Certiorari was granted and the Court of Appeals’

decision was reversed. The holding of the court in Wey-

erhaeuser is controlling of the question presented by

petitioner’s application for certiorari because the court

held that for all practical purposes the exclusivity

clause of the Federal Employees’ Compensation Act

was identical with the exclusivity provision of Section

905. In reversing, the court held: (83 S.Ct. at Pp. 929-

930)

“Section 5 of the Longshoremen’s and Har-

bor Workers’ Compensation Act is nearly iden-

tical to Section 7(b) of the Federal Employees’

Compensation Act in providing that ‘[t]he lia-

bility of an employer *** shall be exclu-

sive and in place of all other liability of such

employer to the employee, his legal repre-

sentative, husband or wife, parents, depend-

ents, next of kin, and anyone otherwise entitled

to recover damages from such emplover at

law or in admiralty on account of such injury

or death ***.’ In Ryan Stevedoring Co. vs.

Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct.

232, 190 L.Ed. 133, it was held that despite this

exclusive liability provision, a shipowner was

entitled to reimbursement from a longshore-

man’s emplover for damages recovered a-

gainst the shipowner by the longshoreman in-

jured by the emplover’s negligence. The

Court’s decision in Ryan was based unon the

existence of a contractual relationship between

the shipowner and the employer. In a series of

subsequent cases, the same result was reach-

ed, although the contractual relationship was

ee |

Peele ~ Bet whee s aD OS

NPP ctw iein

considerably more attenuated. Weyerhaeuser

S.S.C. vs. Nacirema Co., 355 U.S. 563, 78 S.Ct.

438, 2 L.Ed.2d 491; Crumady vs. The Joachim

Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3

L.Fd.2d 413; Waterman S.S. Corp. vs. Dugan &

McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d

169.

“In the present case there was no contrac-

tual relationship between the United States

and the petitioner, governing their correlative

rights and duties. There is involved here, in-

stead, a rule of admiralty law which, for more

than 100 years, has governed with at least

equal clarity the correlative rights and duties

of two shipowners whose vessels have been,in-

volved in a collision in which both were at

mu, ***

“In this case, as in The Chattahoochee, we

hold that the scope of the divided damages rule

in mutual fault collisions is unaffected by a

statute enacted to limit the liability of one of

the shipowners to unrelated third parties. The

judgment is reversed.”

Thus, Weyerhaeuser in effect held that a Section 905

employer can be cast for “other liability” beyond that

liability prescribed in Section 904 for damages sus-

tained by someone other than an employee as a result

of the wrongful conduct or negligence of the employer,

even though the operative facts out of which the right

to recover and the correlative duty arose are the same

as those out of which the injured employee recovers

under the act.

Weyerhaeuser was followed on April 22, 1963, by the

equally important case of Treadwell Construction Co.

vs. United States, 372 U.S. 772, 83 S.Ct. 1102. Treadwell

reversed the decision of the Third Circuit Court of Ap-

peals, in Drake vs. Treadwell Construction Co., 299

F.2d 789. This litigation began as a diversity suit in

which plaintiff Drake, an employee of the United

States, sued Treadwell for a negligent injury suffered

when a steel expansion tank, manufactured by Tread-

well for the United States, exploded while Drake and

others were testing ordnance at a government arsenal.

Treadwell brought the United States into the suit by

filing a third party claim for indemnity and contribu-

tion.

The trial resulted in a finding that the tank had been

negligently fabricated and a recovery of damages by

Drake against Treadwell was permitted. On the third

party claim, the trial court found that negligence by

the United States was also a responsible cause

of Drake’s injury. Accordingly judgment was rendered

on the third party claim: (299 F.2d at P. 790)

“«* * * that the defendant, Treadwell Con-

struction Company, and the third party de-

fendant, United States of America, are joint

tort-feasors and that the right of contribution

exists in favor of the said defendant, Tread-

well Construction Company, and against the

United States of America, and the said Tread-

We RAO ele

Bina...

wel] Construction Company may hereafter

have judgment against the said United States

of America for the amount of $180,000 which it

has paid to the plaintiff, Joseph Drake, in ex-

cess of a sum of $90,000.’ ”

The Court of Appeals pointed to Section 7(b) of the

Federal Employees’ Compensation Act, considered by

the court in Weyerhaeuser, and held that by virtue

of the exclusivity clause in question there could be

no judgment of contribution against the United States.

In rationalizing its decision and in speaking to the ex-

clusivity clause of Section 7(b), the court said: (299

F.2d at Pp. 790-791)

“On its face this subsection withdraws what-

ever consent the Tort Claims Act, considered

done, would otherwise give to the imposition

of tort liability upon the United States on ac-

count of the injury of an employee covered by

the Compensation Act, whether the claim is as-

serted in the interest of the injured employee

or anyone else. Contribution required of a joint

tort-feasor toward the satisfaction of a covered

government employee’s judgment in tort

seems as clearly within the language of Sec-

tion 7(b) as is total direct liability to the in-

jured employee. * * *”

On application for writ of certiorari in a per curiam

opinion, this court reversed, holding: (83 S.Ct. 1102)

“The petition for writ for certiorari is grant-

ed. The judgment of the United States Court

of Appeals for the Third Circuit is vacated and

the case is remanded to the United States Dis-

trict Court for the Western District of Pennsyl-

vania for further consideration in light of Wey-

erhaeuser Steamship Co. vs. United States, 372

U.S. 597, 83 S.Ct. 926.”

With the advent of the Treadwell decision, the circle

was made complete. Notwithstanding the literal word-

ing of Section 905, the workings of the court from 1956

in Ryan to 1963 in Treadwell developed as correct law

the doctrine of Hitaffer, supra, which is that “where

a third person is suing in his or her own right on ac-

count of a breach [of] some independent duty owed

them by the employer, even though the operative facts

out of which this independent right and correlative

duty arose are the same as those out of which the

injured employee recovers under the Act, the Act does

not proscribe the third person’s cause of action.” Thus,

any breach of duty by the employer, whether that duty

arises from contract or negligence which results in

damage to a third person, obliges the employer to re-

spond in damages to the injured person, even though

the operative facts out of which the independent right

of recovery and the correlative duty breached arose

are the same as those out of which the injured em-

ployee might recover under the act.

The decision of the Court of May 28, 1974, in Cooper

Stevedoring Company, Inc. vs. Fritz Kopke, Inc., 94

S.Ct. 2174, permits recovery on a cause of action sound-

ing in tort against a Section 905 employer over and

beyond his liability prescribed in Section 904. In this

case a longshoreman was injured when, while loading

a vessel, he stepped into a concealed gap between

crates which had previously been loaded by Cooper

Stevedoring Company, Inc. The longshoreman then

sued the vessel owner and the time charterer of the

vessel, These defendants filed a third party complaini

against the Cooper Stevedoring Company. The District

Court found both the vessel owner and the charterer

on the one hand as well as Cooper Stevedoring Com-

pany negligent, and divided the liability equally. On

appeal, Cooper contended that the District Court’s a-

ward of contribution in a non-collision maritime case

was contrary to the jurisprudence. The appellate court

rejected the contention and affirmed. On certiorari,

the Court affirmed, holding that a Section 905 employer

should be held liable beyond the liability prescribed

in Section 904 as a joint tort-feasor in a non-collision

maritime case.

These decisions of the court, making possible peti-

tioners’ right to maintain their cause of action against

Penrod are rooted in a sound principle of statutory

construction. Said the court in Moragne vs. States Ma-

rine Lines, Inc., (1970) 398 U.S. 375, 90 S.Ct. 1772, 1783:

“The legislature does not, of course, merely

enact general policies. By the terms of a stat-

ute, it also indicates its conception of the

sphere within which the policy is to have ef-

fect. In many cases the scope of a statute may

reflect nothing more than the dimensions of the

particular problem that came to the attention

of the legislature, inviting the conclusion that

the legislative policy is equally applicable to

other situations in which the mischief is iden-

tical, *° 9”

The mischief sought to be eliminated by the enact-

ment of the Lands Act was the elimination of the ab-

sence of judicial redress for wrongful injuries and

death sustained by those working on artificial islands

in navigable waters off the coastal states of the nation.

And to accomplish this the laws of the adjacent states

were to be included as federal law where not incon-

sistent with applicable federal law. Applicable Lou-

isiana law confers upon petitioners a cause of action

against Penrod for the wrongful death of their son.

Their claim is not one arising “under or through” their

son. It is one which exists independently of any claim

which their son might have under the Longshoremen’s

Act. Nowhere in the Longshoremen’s Act is there any

provision made for the claim asserted by petitioners.

There exists therefore no applicable federal law. Ap-

plicable state law therefore cannot be ousted because

as the court said in Rodrique, “For federal law to oust

adopted state law, federal law must first apply.” 89

S.Ct. at P. 1839. As shown by the cases referred to

in this application, the proscription of Section 905 does

not constitute a bar to petitioners’ cause of action. Ap-

plicable state law makes the wrongful death of peti-

tioners’ son an actionable tort and renders Penrod lia-

ble in damages.

Petitioners’ position vis-a-vis the applicability of Sec-

tion 905 is stronger than the positions of the litigants

Oy eee Se ee ee

involved in the cases reviewed. In the factual context

of petitioners’ claim, unlike the position of the employ-

ers in the cases reviewed, defendant Penrod has in-

curred no liability as contemplated by Section 904 as

the result of the death of petitioners’ son. This is true

because petitioners’ son left no dependents and, there-

fore, there is no one eligible for the benefits contem-

plated by Section 904. Thus the condition (liability un-

der Section 94) which triggers the application of the

exclusiveness of liability contained in 905 does not ex-

ist. Section 905 therefore is inapplicable. It can

be made applicable only if the court is prepared to

hold, as the lower courts implicitly held, that theoreti-

cal] liability, as opposed to actual liability, under Sec-

tion 904 is sufficient to excite the operation of Sectioa

905, and that, notwithstanding the non-actual liability

of the employer, the exclusiveness of longshoremen

benefits liability of Section 905 insulates the employer

from any other liability as to every one. Such an as-

sessment of the operational effects of Section 905, how-

ever, is at variance with the rationale giving support

to its existence, as authoritatively interpreted in Ryan.

The benefits inuring to the stevedore and the lia-

bility imposed upon the employer contained in the

Longshoremen’s Act are rooted in a quid pro quo equit-

able concept. The stevedore gets the benefits without

having to sustain the burden of proving fault, in ex-

change for which the employer’s liability is limited

to the delimited benefits due to the stevedore. Ryan,

supra. Said the court in speaking to the rationale of

Section 905: (76 S.Ct. at P. 235)

“The obvious purpose of this provision is to

make the statutory liability of an employer to

contribute to its employee’s compensation the

exclusive liability of such employer to its em-

ployee, or to anyone claiming under or through

such employee, on account of his injury or

death arising out of that employment. In re-

turn, the employee, and those claiming under

or through him, are given a substantial quid

pro quo in the form of an assured compensa-

tion, regardless of fault, as a substitute for

their excluded claims. * * *”

The decisions of the court below have granted to

Penrod the special privilege of limited liability — in-

deed the exceptionally special privilege of no liability.

This special privilege has been granted Penrod while

simultaneously denying petitioners of a quid pro quo

in the form of an assured compensation, regardless

of fault, as a substitute for their claim. In fact, peti-

tioners have been granted nothing but denied of all.

Moreover, as the court instructs in Ryan, the pro-

scription of Section 905 is limited to those parties

“claiming under or through” the employee on account

of his injury or death arising out of his employment.

But as it has been demonstrated before, petitioners

are not _laiming ‘‘under or through” their deceased

son. Their claim is conferred upon them directly and

exclusively by Louisiana law.

None of the underpinning reasons supporting the pur-

pose of Section 905 exists in connection with petition-

roam! weeds @

ers’ claim. In fact there are four substantial reasons

why Section 905 cannot be applied against petitioners.

First, petitioners are not parents within the contem-

plation of Section 905. Second, their son left no depend-

ents and therefore there is no one eligbile to receive

the benefits provided for by Section 904, Consequent-

ly, Penrod has incurred no liability as prescribed by

904 and therefore the condition precedent to the op-

erational effect of 905 does not exist. Third, petition-

ers’ claim is not being made nor asserted “under or

through” their son. And fourth, they enjoy no quid pro

quo in the form of an assured compensation, regard-

Jess of fault, as a substitute for their claim. There can

be, therefore, no legal justification for the application

of the provisions of Section 905 against the claims as-

serted by petitioners. Consequently, the rulings of the

court below must be reversed.

While Hitaffer, supra, was reversed by Smither &

Co., Inc. vs. Coles, 242 F.2d 220, cert. denied, 77 S.Ct.

1299, that reversal leaves petitioners’ cause of action

unaffected. This is true primarily because the basis

in Smither for the reversal of Hitaffer was the prior

recovery of benefits due under 904 bv the plaintiff's

spouse.

The essential facts in Smither were that husband

Cole was injured and received compensation under the

Longshoremen’s Act. His wife filed a suit for loss of

consortium as the result of his injuries. In reversing

an award made by the District Court, the Court of

Appeals held: (242 F.2d 225)

“* * * We need not decide, however,

whether the right of one spouse to recover

damages for loss of consortium is derivative

or independent; under this statute, as indeed

under the statutory scheme of such statutes

everywhere all the rights of ‘husband or wife’

are merged into the exclusive remedy provid-

ed by the Act and are barred by a recovery

under the Act. * * *”

In petitioners’ case, however, no one has recovered

any of the benefits due under 904. And no one is eligi-

ble to recover such benefits. Thus, employer Penrod

has not and will not incur any liability prescribed by

Section 904, and they therefore cannot insist on the

exclusivity of Section 905.

The primary duty owed by Penrod to petitioners not

to wrongfully kill their son already exists. The damage

in the nature of the loss of society of their son already

has been inflicted upon petitioners. Their cause of ac-

tion against Penrod for the wrongful killing of their

son already exists by virtue of applicable Louisiana

law. What remains to be decided is, therefore, a reme-

dial matter. The fact that Penrod’s wrongful conduct

may have inflicted two different harms to different

people, is not a sufficient reason to withhold a reme-

dy. Though in a different context this was the holding

of the court in Moragne vs. State Marine Lines, Inc.,

398 U.S. 375, 90 S.Ct. 1772, 1778:

“*** Because the primary duty already

exists, the decision whether to allow recovery

we) Gas WS atc ee ae an

for violations causing death is entirely a reme-

dial matter. It is true that the harms to be as-

sSuaged are not identical in the two cases: in

the case of mere injury, the person physically

harmed is made whole for his harm, while in

the case of death, those closest to him — usual-

ly spouse and children — seek to recover for

their total loss of one on whom they depended.

This difference, however, even when coupled

with the practical difficulties of defining the

class of beneficiaries who may recover for

death, does not seem to account for the law’s

refusal to recognize a wrongful killing as an

actionable tort. One expects, therefore, to find

a persuasive, independent justification for this

apparent legal anomaly.”

Because defendant Penrod has incurred no liability

to pay benefits prescribed by Section 904, if petitioners’

right to recover damages on account of the death of

their son is denied, the result will be the adoption of

a notion of justice that has been characterized by this

court as “barbarous.” The denial of a remedy to peti-

tioners would mean that compensation is due where

wrongful conduct produces injury only, but denied

when the wrongful conduct is serious enough to cause

death. In speaking to this discredited principle, the

court in Moragne, supra, said: (90 S.Ct. at P. 1778)

“*** Where existing law imposes a prim-

ary duty, violations of which are compensable

if they cause injury, nothing in ordinary no-

tions of justice suggests that a violation should

be nonactionable simply because it was ser-

ious enough to cause death. On the contrary, ©

that rule has been criticized ever since its in- *

ception, and described in such terms as ‘bar-

barous’, * * *”

CONCLUSION

The injuries sustained by the stevedore employees

in Ryan, supra, Weyerhaeuser vs. Nacirema, supra,

Crumady, supra, Waterman, supra, Weyerhaeuser vs.

United States, supra, Treadwell, supra, and Cooper

Stevedoring Company, Inc., supra, were the cause and

measure of the damage sustained by the claimants,

for which the stevedoring employer was held liable.

Death of the stevedoring employee in petitioners’ case

is the cause and measure of the damage sustained by

petitioners, for which the stevedoring employer. is lia-

ble. Thus, the source of the damage to claimants in

these cases, including petitioners’ case, is the same.

The connexity between the injury or death of the steve-

dore employees and the damages sustained by the

claimants, including petitioners, is the same. Ryan,

et al, therefore, cannot be distinguished from petition-

ers’ claim on the basis of the source of damage.

The origin of the duty owed to claimants and

breached by the stevedoring employers in Ryan, Wey-

erhaeuser vs. Nacirema, Crumady, and Waterman

was in contract. The origin of the duty owed to claim-

ant and breached by the stevedoring employer in Wey-

erhaeuser vs. United States was in tort, secured by

BPrcttai scence xc “

a contribution concept rooted in ancient admiralty law.

The origin of the duty owed to claimant and breached

by the stevedoring employer in Treadwell was in tort,

secured by a contribution concept rooted in common

law. The origin of the duty owed to claimants

and breached by the stevedoring employer in petition-

ers’ case is in tort, secured by the mandatory provi-

sions of Louisiana Civil] Code, Article 2315, et seq.

These decisions of the court in Ryan, et al, bear witness

to the fact that the origin of duty, however diverse,

is of no persuasive or decisive value in holding the

stevedoring employer liable to the claimants involved.

Petitioners’ clairn, therefore, cannot be distinguished

from these cases on the basis of: the origin of duty

involved. |

None of the claimants in Ryan, et al, was eligible

for benefits under Section 904. Neither of the petition-

ers involved in this application for certiorari is eligible

for benefits under Section 904. Petitioners’ claim,

‘therefore, cannot be distinguished from these cases

on the basis of eligibility of the claimants under Sec-

tion 904.

None of the claimants in Ryan, et al, asserted a claim

“under or through” the stevedore employees. Neither

of the petitioners in this application for certiorari as-

sert a claim “under or through” the stevedore employ-

ee. Petitioners’ claim, therefore, cannot be distin-

guished from these cases on that basis.

All of the claimants in Ryan, et al, necessarily are

included within the term “anyone” contained in Sec-

tion 905, when the literal wording of the statute is given

full sway. For the same reason, petitioners are like-

wise included. But Section 905 makes no difference be-

tween the terms “anyone” or “parents” or “next of

kin,” in speaking to those who are excluded from

claiming anything more than the benefits of 904. There

can, therefore, be no distinction between the claimants

in Ryan, et al, and petitioners on the basis that one

or the other is not included in Section 905. There ex-

ists, therefore, no difference between claimants in

Ryan, et al, and petitioners herein.

The only difference which does exist relates to the

commodity cf damage and the extent of injury inflict-

ed on the stevedore employees. Claimants in Ryan,

et al, suffered the loss of money in consequence of

injury to the stevedore employee. Petitioners suffered

the loss of society of a loved one in consequence of

the death of the stevedore employee. Claimants

in Ryan, et al, sought and got redress for the monetary

loss sustained in consequence of injury to the stevedore

employee. Petitioners sought but have been denied re-

dress for their loss of society of a loved ore in con-

sequence of the death of the stevedore employee. The

denial to petitioners of redress necessarily must be

based, if indeed there is a basis, upon the severity

of the injury to the stevedore employee or upon the

nature of the damages sustained by petitioners or both.

If the denial is based upon the severity of the injury

to the stevedore employee, then the decisions in the

courts below stand for a notion of justice that grants

redress for wrongful] conduct causing injury, but denies

redress for wrongful conduct causing death. If the de-

—

$608 Dron a ES Ar Sey TRS gate bi

OF a Hing Pe:

nia] is based upon the nature of the damages sustained,

then the decisions in the courts below stand for a no-

tion of justice that grants redress for wrongful conduct

causing loss of property, but denies redress for wrong-

ful conduct causing the loss of the society of a loved

one, One reason is as barbaric in concept as the other.

Both are simply doubly barbaric.

There simply exists no reasonable distinction be-

tween claimants in Ryan, et al, and petitioners herein,

that might be reasonably related to the purpose of the

Longshoremen’s Act so as to justify the grant of re-

dress in Ryan, et al, and the denial of redress to pe-

titioners. The denial] to petitioners of the right of re-

dress, therefore, amounts to an invidious discrimina-

tion against them. Constitutional equality proscribes

such a result.

WHEREFORE petitioners respectfully pray that a

writ of certiorari issue herein to the Court of Appeals,

Fifth Circuit, and finally that the judgment appealed

from be reversed and plaintiffs’ claim be ordered re-

manded to the District Court for proceedings consist-

ently with the decision of the court and applicable

law.

Respectfully submitted,

J. MINOS SIMON

Attorney for Petitioners

1408 Pinhook Road

Post Office Box 52116 OCS

Lafayette, Louisiana 70501

J. MINOS SIMON

PROOF OF SERVICE

I, J. Minos Simon, Attorney for Petitioners herein,

and a member of the bar of the Supreme Court of

the United States, hereby certify that on the day

of September, 1974, I served a copy of the foregoing

Petition for Writ of Certiorari on Mr. Patrick A.

Juneau, Jr., Attorney for Respondents, Post Office Box

3527, Lafayette, Louisiana 70501.

Lafayette, Louisiana, this ___. day of September,

1974.

J. MINOS SIMON

—

SEER TIERED EO

—

APPENDIX | ss ws,

\ MICHAEL RODAK, JR..CL ERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No, 747241

MR. and MRS. MALVIN HENNIGAN, Appellants

versus

PLACID OIL COMPANY, ET AL, Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF LOUISIANA

J. MINOS SIMON

Attorney at Law

1408 Pinhook Road

Post Office Box 52116

Lafayette, Louisiana 70501

ATTORNEY FOR APPELLANTS

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INDEX

APPENDIX A = 1 -_ 7 «© @©& © #© © @© @©&

Per Curiam Opinion of

Court of Appeals for

the Fifth Circuit

APPENDIX A rex 2 . . ° . ° . . . .

Longshoremen's and Harbor

Workers' Compensation Act

33 usc 901 - 951

APPENDIX A ae? 3 e+ e# # @ -_e # @

Outer Continental Shelf

Lands Act, 43 usc 1331,

1332 and 1333

446

447 - 482

483 - 487

ot et geet

PER CURIAM OPINION OF

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OED Lt AR METI ATP ns re hs CII EO a hE Me sth £2406 1HmsS- ee ee

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-1403

Summary Calendar*

MR. AND MRS. MALVIN HENNIGAN,

Vv.

PLACID OIL COMPANY, et al,

Plaintiffs-Appellants, |

Defendants-Appel.lees |

Appeal from the

United States District Court

for the Western District of Louisiana

setter es

(June 13, 1974)

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.2

*Rule 18, 5th Cir., Isbell Enterprises, Inc. v. ;

Citizens Casualty Company of New York, et al,

5th Cir., 1970, 431 F.2d 409, Part l.

1 See N.L.R. B. v. Amalgamated Clothing Workers

of America, 5th a 1970, role F.2d pth 4

FP yay s 9 ore

CER Le ETL ILE LON, ek GP NTE I ONL IMT «6

Fe a Te Re ee ee ee aT ee eae a

APPENDIX A -2

LONGSHOREMEN'S AND HARBOR WORKERS’

COMPENSATION ACT |

33 USC 901 - 951

-1- —

LONGSHOREMEN’S AND HARBOR WORKERS’

COMPENSATION ACT

SHORT TITLE

33 USC § 901.

Sec. 1. This Act may be cited as “Longshoremen’s and Harbor

Workers’ Compensation Act.”

DEFINITIONS

33 USC § 902.

Stc. 2. When used in this Act—

(1) The term “person” means individual, partnership, corporation,

Or association.

(2) The term “injury” means accidental injury or death arising

out of and in the course of employment, and such occupational

disease or infection as arises naturally out of such employment or as

naturally or unavoidably results from such accidental injury, and in-

cludes an injury caused by the willful act of a third person directed

against an employee because of his employment.

(3) The term “employce” does not include a master or member

of a crew of any vessel, nor any person engaged by the master to load

or unload or repair any small vessel under cightcen tons net.

(4) The term “employer” means an employer any of whose em-

ployees are employed in maritime employment, in whole or in part,

upon the navigable waters of the United States (including any dry

dock).

(5) The term “carricr” means any person or fund authorized under

section 32 to insure under this Act and includes telf-insurers.

(6) The term “Secretary” racans the Secretary of Lavor.

(7) The term “deputy commissioner” means the deputy commis-

sioner having jurisdiction in respect of an injury or death.

(8) The term “State” includes 2 Territory and the District of

Columbia.

(9) The term “United States” when used in a geographical sense

means the several! States and Territories and the District of Columbia,

including the territorial waters thercof.

(10) “Disability” means incapacity because of injury to earn the

wages which the employee was receiving at the time of injury in the

same or any other employment.

(11) “Death” as a basis for a right to compensation means only

death resulting from an injury.

447

LTE TOT Ry ORE TTI NR ee TN DT SONATE MR Onaga acral | Kh Skis

oe MP + oD eRe _ A — ™

MARITIME PERSONAL INJURIES

(12) “Compensation” means the money allowance payable to an

employee or to his dependents as provided for in this Act, and includes

funeral benefits provided therein.

(13) “Wages” means the money rate at which the service rendered

is recompensed under the contract of hiring in force at the time of

the injury, including the reasonable value of board, rent, housing,

lodging, or similar advantage received from the employer, and gra-

tuities received in the course of employment from others than the

employer.

(14) “Child” shall include a posthumous child, a child legally

adopted prior to the injury of the employee, a child in relation to

whom the deceascd employce stood in loco parentis for at least one

year prior to the time of injury, and a stepchild or acknowledged

illegitimate child dependent upon the deceased, but does not include

married children unless wholly dependent on him. “Grandchild”

means a child as above defined of a child as above defined. “Brother”

and “sister” inciude stepbrothers and stepsisters, half brothers and

half sisters, and brothers and sisters by adoption, but does not include

married brothers nor married sisters unless wholly dependent on the

employee. “Child,” “grandchild,” “brother,” and “sister” include

only persons who are under eighteen years of asc, and also persons

who, though eightecn years of age or over, are wholly dependent upon

the deceased employee and incapable of sclf-support by reason of

mental or physical disability.

(15) The term “parent” includes step-parents and parents by

adoption, parents-in-law, and any person who for more than three

years prior to the death of the deceased employee stood in the place

of a parent to him, if dependent on the injured employce.

(16) The term “widow” includes only the decedent's wife living

with or dependent for support upon him at the time of his death; or

living apart for justifiable cause or by reason of his desertion at such

time.

(17) The term “widower” includes only the decedent’s husband

who at the time of her death lived with her and was dependent for

support upon her.

(18) The term “adoption” or “adopted” means legal adoption prior

to the time of the injury.

(19) The singular includes the plural and the masculine includes

the feminine and neuter.

COVERAGE

33 USC § 903

Sec. 3. (a) Compensation shall be payable under this Act in re-

spect of disability or death of an employee, but only if the disability

or death results from an injury occurring upon the navigable waters

448

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ee ee ee ee

I EF OE OE Pe ER EII DLE PS OE FEI ae a

a ie Le ee ae eal

THE COMPENSATION ACT

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. No compensation shall be pay-

able in respect of the disability or death of —

(1) A master or member of a crew of any vessel, nor any person

engaged by the master to load or unload or repair any small vessel

under eightcen tons net; or

(2) An officer or employee of the United States or any agency

thereof or of any State or foreign government, or of any political

subdivision thereof.

(b) No compensation shall be payable if the injury was occasioned

solely by the intoxication of the employee or by the willful intention

of the employee to injure or kill himself or another,

LIABILITY FOR COMPENSATION

33 USC § 904.

Sec. 4. (a) Every employer shall be liable for and shall secure

the payment to his employees of the compensation payable under

sections 7, 8, and 9. In the case of an employer who is a subcon-

tractor, the contractor shall be liable for and shall secure the payment

of such compensation to employees of the subcontractor unless the

subcontractor has secured such payment.

(b) Compensation shall be payable irrespective of faulk as a cause

for the injury.

EXCLUSIVENESS OF LIABILITY

33 USC § 905.

Sec. 5. The liability of an employer prescribed in section 4 shall

be exclusive and in place of all other liability of such employer to

the employee, his legal representative, husband or wife, parents,

dependents, next of kin, and anyone otherwise entitled to recover

damages from such employer at law or in admiralty on account of such

injury or death, except that if an employer fails to secure payment of

compensation as required by this Act, an injured employee, or his

legal representative in case death results from the injury, may elect

to claim compensation under this Act, or to maintain an action at

law or in admiralty for damages on account of such injury or death.

In such action the defendant may not plead as a defense that the in-

jury was caused by the negligence of.a fellow Servant, nor that the

employee assumed the risk of his employment, nor that the injury was

due to the contributory negligence of the employee.

[Norris MP1] —29 449

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MARITIME PERSONAL INJURIES

TIME FOR COMMENCEMENT OF COMPENSATION

MAXIMUM AND MINIMUM COMPENSATION

33 USC § 906.

Sec. 6. (a) No compensation shall be allowed for the first three

days of the disability, except the benefits provided for in section 7:

Provided, however, That in case the injury results in disability of

more than twenty-cight days, the compensation shall be allowed from

the date of the disability.

(b) Compensation for disability shall not exceed $70 per week

and compensation for total disability shall not be less than $18 per

week: Provided, however, That, if the employee's average weekly

wages, as computed under section 10, are less than’ $18 per week, he

shall receive as compensation for total disability his average weckly

wages.

MEDICAL SERVICES AND SUPPLIES

33 USC § 907.

Sec. 7. (a) The employer shall furnish such medical, surgical,

and other attendance or treatment, nurse and hospital service, medi-

cine, crutches, and apparatus, for such period as the nature of the

injury or the process of recovery may require.

(b) The employce shall have the right to choose an attending

physician from a pancl of physicians to be named by the employer

subject to the provisions of subsection (c) of this section. If, due to

the nature of the injury, the employee is unable to se‘ect his physician

from a panel and the nature of the injury requires immediate medical

treatment and care, the employer shell select a physician for him from

the pancl. Nothing conta:ncd in this section shall limit the right of

the employee to make a second choice of physician from such panel.

The deputy commissioner may, under rules prescribed by the Sccre-

tary, permit an injured employce to select a physician not on the panel

when specialized services are necded or in unusual circumstances. «

The deputy commissioner shall have authority to determine the neces-

sity, character, and sufficiency of any medical aid furnished or to be

furnished and shall have authority to order a change of physicians

or hospitals when in his judgment such change is desirable or

necessary.

the panel of physicians named by the employer and shall determine

the number of physicians to be named. In determining the size of the

panel, he shall take into account the number of competent, suitable,

and impartial physicians convenicntly available to the community in

which the medical service is required. Every employer shall post the

names and addresses of the physicians on his pancl in such manner as

to afford his employccs reasonable notice thereof.

450 [Norris MP1}

LP GALT PAS e OLN EET Ay ere FF.

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C2 OD ee Rit 5 ro

THe COMPENSATION AcT

(1) If the employer fails to provide the medical or other treatment,

services, and supplies required to be furnished by subsection (a), after

request by the injured employee, or fails to maintain a panel of physi-

cians as required by subsection (c), or fails to permit the employee

to choose an attending physician from such panel, such injured em-

ployee may procure such medical or other treatment, services, and

supplies and select a physician to render treatment and services at the

expense of the employer. The employee shall not be entitled to

recover any amount expended by him for such treatment or services

unless he shall have requested the employer to furnish the same and

the employer shall have refused or neglected to do 80, or unless the

nature of the injury required such treatment and services and the

employer or his superintendent or foreman having knowledge of such

injury shall have neglected to provide the same; nor shall any claim

for medical or surgical treatment be valid and enforceable, as against

such employer, unless within twenty days following the first treat.

ment the physician giving such treatment furnish to the employer and

the deputy commissioner a report of sueh injury and treatment, on a

form preseribed by the Seereiary, The Hepuly eammissioner may,

however, exeuse the failure ta furniol suet report within twenty days

when he finds it 10 he in the interest af justice a de se, and he Way,

Hen Apiention hy a party in inierest, make an award Fen We Fe Ane:

alle value af uel medienl ar murgienl treatment sa altained hy the

employee, Wf at | Hine during evel period the employee wired:

HONNTY FeTHAeH MUNI Le Hiedienl AF murpleal treatment, (he deputy

Priiinnlaner may, Hy ander, suapend the payment at further eONpien

RATION CHF Miele Ae eHen refieal continues, and He HOHE HeATON

shall We paid at ANY Hine during the periad af eel suepeneion, Wnlees

fhe elreunielanees justified the refueal,

(6) Whenever in the apinion af the deputy eanmleianer a filivelelan

hae Het linpartioly eetimated the dearee of herninent dikability eF

the extent of leniporary disability of ANY injured employee, the deputy

commissioner shall have the power to enuee eHEl enployee to be

exatiined by a pliysieian selected by the deputy commissioner and to

Obtain from eich pliysician a report containing his estinate of sueh

disabilities, If the report of stich Physician shows that the eetimate of

the physician has not been impartial from the standpoint of such em-

ployee, the deputy commissioner shall have the power in his discre-

tion to charge the cost of such exemination to the employer, if he is a

self-insurcr, or to the insurance company which is carrying the risk.

(f) All fees and other charges for such treatment or service shall be

limited to such charges as prevail in the same community for similar

treatment of injured persons of like standard of living, and shall be

subject to regulation by the deputy commissioner,

(g) The liability of an employer for medical treatment as hercin

451

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MARITIME PERSONAL INJURIES

provided shall not be affected by the fact that his employce was injured

through the fault or negligence of a third party not in the same

employ, or suit has been brought against such third party. The

employer shall, however, have a cause of action against such third

party to recover any amounts paid by him for such medical treat-

ment in like manner as provided in section 33(b) of this Act.

COMPENSATION FOR DISABILITY

33 USC § 908,

Sec, 8, Compensation for disability shall be paid to the employee

as follows;

(a) Permanent total disability: In ease of total disability adjudged

to be permanent 66%, per centum of the average weekly wages shall

be paid to the employee during the continuance of such total dis:

ability, Loss ef both hands, or both arms, or both feet, ar barn legs,

a both eyes, or of any two thereof shall, in the absence of conclusive

root to Ihe FOntrary, COnMiule permanent totul Misalility, tn all

rilier ennes permanent total disability shall he determined in aeeard:

aee With the fete,

(H) ‘Teniparary total disability: In ense af disability total in ear

Helen Hut Hempariry In quality O08) per eentunn af Ie avenue Weebl

wanes elull be paid to the employee during the eontinuanes theron

fe) Pernanent partial dieuhiliiyy 1h ease af dinnbiliiy partial in

charneler Wut permanent in quulily the eompensution shall be Ahi,

per ceniuin Of the vvernpe Weekly Wages, whieh shall be in addition

TT) compensation for Heniperary total inability ar temporary partial

Hinnbility paid ih weeardanee With aubdivieion (i) OF eubdieieion Ce)

tA. seelion Feapeetively and shall be paid to ihe employee, as

wllowe:

(1) Arm lost, three hundred and iweive weeks’ compensation,

(2) Leg lost, two hundred and eiphty-eivht weeks’ compensation.

(4) Hand lost, two hundred and forty-four weeks’ compensation,

(4) Pout lost, two hundred and five weeks’ compensation,

(5) Eye lost, one hundred and sixty weeks’ compensation.

(6) Thumb lost, seventy-five wecks’ compensation.

(7) First finger lost, forty-six weeks’ compensation,

(8) Great toe lost, thirty-cight weeks’ compensation.

(9) Second finger lost, thirty wecks’ compensation.

(10) Third finger lost, twenty-five weeks’ compensation.

(11) Toe other than great toe lost, sixteen weeks’ compensation.

(12) Fourth finger lost, fiftecn weeks’ compensation.

(13) Loss of hearing: Compensation for loss of hearing of one car,

fifty-two weeks, Compensation for loss of hearing of both ears, two

hundred weeks.

(14) Phalanges: Compensation for loss of more than one phalange

452

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THE COMPENSATION ACT

of a, digit shall be the same as for loss of the entire digit. Com-

pensation for loss of the first phalange shall be one-half of the com-

pensation for loss of the entire digit.

(15) Amputated arm or leg: Compensation for an arri or a leg.

if amputated at or above the elbow or the knee, shall be the same as

for a loss of the arm or Icg; but, if amputated between the clbow and

the wrist or the knee and the ankle, shall be the same as for Joss of a

hand or foot. j

(16) Binocular vision or per centum of vision: Compensation for

loss of binocular vision or for 80 per centum or more of the vision

of an cye shall be the same as for loss of the eye.

(17) Two or more digits: Compensation for loss of two or more

digits or one or more phalanges of two or more digits, of a hand or

foot may be proportioned to the lors of use of the hand or foot occa-

sioned thereby, but shall not exceed the compensation for loss of a

hand or foot.

(18) Total loss of use: Compensation for permanent total loss of

, use of a member shall be the same as for loss of the member.

(19) Partial loss or partial loss of use: Compensation for perma-

nent partial loss or loss of use of a member may be for proportionate

loss or loss of use of the member.

(20) Disfigurement: The deputy commissioner shall award proper

and equitable compensation for serious facial or head disfigurement,

not to exceed $3,500. |

(21) Other cases: In all other cases in this class of disability the

compensation shall be 6624 per centum of the difference between his

average weckly wages and his wage-carning capacity thereafter in

the same employment or otherwise, payable during the continuance’

of such partial disability, but subject to reconsideration of the degree

of such impairment by the deputy commissioner on his own motion

or upon application of any party in interest.

(22) In any case in which there shall be a loss of, or loss of use

of more than one member or parts of more than one member set

forth in paragraphs (1) to (19) of this subdivision, not aincunting to

permanent total disability, the award of compensation shall be for

the loss of, or loss of use of, each such member or part thereof, which

awards shall run consecutively, except that where the injury affects

only two or more digits of the same hand or foot, paragraph (17) of

this subdivision shall apply.

(d) Any compensation to which any claimant would be entitled

under subdivision (c) excepting subdivision (c-21) shall, notwithstand-

ing death arising from causes other than the injury, be payable to

and for the benefit of the persons following:

(1) If there be a surviving wife or dependent husband and no child

453

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MARITIME PERSONAL INJURIES

of the deceased under the age of eighteen years, to such wife or de-

pendent husband.

(2) If there be a surviving wife or dependent husband and sur-

viving child or children of the deceased under the age of eighteen

years, one-half shall be payable to the surviving wife or

husband and the other half to the surviving child or children.

(3) The deputy commissioner may in his discretion require the

appointment of a guardian for the purpose of receiving the compensa-

tion of the minor child. In the absence of such a requirement the

appointment for such a purpose shall not be necessary.

(4) If there be a surviving child or children of the deceased under

the aze of eighteen years, but no surviving wife or dependent husband,

then to such child or children.

(5) An award for disability may be made after the death of the

injured employce.

disability resulting in decrease of earning capacity the compensation

shall be two-thirds of the difference between the injured employce’s

average weckly wages before the injury and his wage-carning capacity

after the injury in the same or another employment, to be paid during

the continuance of such disability, but shall not be paid for a period

excecding five years.

(f) Injury increasing disability: (1) If an employee receives an

injury which of itself would only cause permanent partial disability

but which, combined with a previous disability, does in fact cause per-

manent total disability, the employer shall provide compensation only

for the disability caused by the subsequent injury: Provided, however,

That in addition to compensation for such permanent partial disability,

‘and after the cessation of the payments for the prescribed period of

weeks, the employce shall be paid the remainder of the compensation

that would be due for permancnt total disability. Such additional

compensation shall be paid out of the special fund established in

section 44,

(2) In all other cases in which, following a previous disability, an

employee receives an injury which is not covered by (1) of this sub-

division, the employer shall provide compensation only for the dis-

ability caused by the subsequent injury. In determining compensation

for the subsequent injury or for death resulting therefrom, the average

weekly wages shall be such sum as will reasonably represent the earn-

ing, capacity of the employce at the time of the subsequent injury.

(g) Maintenance for employecs undergoing vocational rehabilita-

tion; An employee who as a result of injury is or may be expected

to be totally or partiatiy incapacitated for a remuncrative occupation

and who, under the direction of the Secretary as provided by section

KS (c) of this Act, is being rendered fit to engage in a remunerative

454

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THE COMPENSATION ACT

occupation, shall receive additional compensation necessary for his

maintenance, but such additional compensation shall not exceed $25

a week. The expense shall be paid out of the special fund established

in section 44,

(h) The wage-earning capacity of an injured employee in cases

of partial disability under subdivisions (c) (21) of this section or

under subdivision (e) of this section shall be determined by his actual

earnings if such actual earnings fairly and reasonably represent his

wage-earning capacity: Provided, however, That if the employee has

no actual earnings or his actual earnings do not fairly and reasonably

represent his wage-earning capacity, the deputy commissioner may,

in the interest of justice, fix such wage-carning capacity as shall be

reasonable, having due regard to the nature of his injury, the degree

of physical impairment, his usual employment, and any other factors

or circumstances in the case which may affect his capacity to earn

wages in his disabled condition, including the effect of disability as

it may naturally extend into the future.

(i) In cases under subdivision (c)(21) and subdivision (c) of this

section, whenever the deputy commissioner determines that it is for

the best interests of an injured employce entitled to compensation, he

may, with the approval of the Secretary, approve agreed scttlements

of the interested parties, discharging the liability of the employer for

such compensation, notwithstanding the provisions of section 15(b)

and section 16 of this Act: Provided, That the sum so agreed upon

shall be payable in installments as provided in section 14(b), which

installments shall be subject to commutation under section 14(j);

And provided further, That if the employce should die from causes

other than the injury after the Secretary as approved an agreed

settlement as provided for hercin, the sum so approved shall be

payable, in the manner prescribed in this subdivision, to and for the

benefit of the persons enumerated in subdivision (d) of this section.

COMPENSATION FOR DEATH

33 USC § 909,

Sec. 9. If the injury causes death, the compensation shall be

known as a death benefit and shall be payable in the amount and to

or for the benefit of the persons following:

(a) Reasonable funeral expenses not exceeding $400.

(b) If there be a surviving wife or dependent husband and no child

of the deceased to such surviving wife or dependent husvand 35 per

centum of the average wages of the deceased, during widowhood, or

dependent widowerhood, with two years’ compensation in one sum

upon remarriage; and if there be a surviving child or children of the

deceased, the additional amount of 15 per centum of such wages

for cach child; in the case of the death or remarriage of such surviving

455

MARITIME PERSONAL INJURIES

wife or dependent husband, if there be one surviving child of the

deceased employce, such child shall have his compensation increased

to 35 per centum of such wages, and if there be more than one

surviving child of the deceased employce, to such children, in equal

parts, 35 per centum of such wages increased by 15 per centum of

such wages for each child in excess of one:

Provided, That the total amount payable shall in no case exceed

*4 per centum of such wages. The deputy commissioner having

jurisdiction over the claim may, in his discretion, require the appoint-

ment of a guardian for the purpose of recciving the compensation

of a minor child. In the absence of such a requirement the appoint-

ment of a guardian for such purposes shall not be necessary.

wife or dependent husband, then for the support of such child 35

per centum of the wages of the deceased; and if there be more than

one surviving child of the deceased, but no widow or dependent

husband, then for the support of such children, in equal parts 35

Per centum of such wages increased by 15 per centum of such wages

for each child in excess of one: Provided, That the total amount pay-

able shall in no case exceed 6624 per centum of such wages.

(d) If there be no surviving wife or dependent husband or child

or if the amount payable to a surviving wife or dependent husband

and to children shall be less in the aggregate than 6674 per centum

of the average wages of the deceased; then for the support of grand-

children or brothers and sisters, if dependent upon the deceased at

the time of the injury, 15 per centum of such wages for the support

of cach such person and for the support of each parent. or grand-

parent, of the deceased if dependent upon him at the time of the

* injury, 25 per centum of such wages during such dependency. But

in no case shall the ageregate amount payable under this subdivision

exceed the difference between 6674 per centum of such wages and the

amount payable as hereinbefore provided to surviving wife or depend-

ent husband and for the support of surviving child or children.

“deceased shall be considered to have been not more than $105 nor

less than $27 but the total weekly compensation shall not exceed

the weekly wages of the deceased.

(f} All questions of dependency shall be determined as of the

time of the injury.

(z) Alicns: Compensation under this chapter to aliens not resi-

dents (or about to become nonresidents) of the United States or

Canada shall be the same in amount as provided for residents,

except that dependents in any forcign country shall be limited to

surviving wife and child or children, or if there be no surviving wife

or child or children, to surviving father or mother whom the employee

456

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THE COMPENSATION ACT

has supported, either wholly or in part, for the period of one year prior

to the date of the injury, and except that the Secretary may, at his

option or upon the application of the insurance carrier shall, commute

all future installments of compensation to be paid to such aliens

by paying or causing to be paid to them one-half of the commuted

amount of such future installments of compensation as determined

by the Secretary. ;

DETERMINATION OF PAY

33 USC § 910.

Sec. 10. Except as otherwise provided in this Act, the average

weckly wage of the injured employee at the time of the injury shall

be taken as the basis upon which to compute compensation and shall

be determined as follows:

(a) If the injured employce shall have worked in the employment

in which he was working at the time of the injury, whether for the

same or another employer, during substantially the whole of the year

immediately preceding his injury. his average annual earnines shall

consist of three hundred times the average daily wage or salary for

a six-day worker and two hundred and sixty times the average daily

wage or salary for a five-day worker, which he shall have earned in

such employment during the days when so employed.

(b) If the injured employee shall not have worked in such employ-

ment during substantially the whole of such year, his average annual ©

earning if a six-day worker, shall consist of three hundred times the

average daily wage or salary and, if a five-day worker, two hundred

and sixty times the average daily wage or salary, which an employee

of the same class working substantially the whole of such immediately

preceding year in tie same or in similar employment in the same or a

Neighboring place shall have earncd in such employment during the

days when so employed.

annual earnings of the injured employee cannot reasonably and fairly

be applied, such average annual carnings shall be such sum as,

having regard to the previous carnings of the injured employee in

the employment in which he was working at the time of the injury,

and of other employces of the same or most similar class working

in the same or most similar employment in the same or neighboring

locality, or other employment of such employce, including the re--

sonable value of the services of the employee if engaged in self-

employment, shall reasonably represent the annual earning capicity

of the injured employee.

(d) The average weekly wages of an employee shall be one fifty-

second part of his average annual earnings.

(¢) If it be established that the injured employee was a minor when

457

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MARITIME PERSONAL INJURIES

injured, and that under normal conditions his weges should be ex-

pected to increase during the period of disability the fact may be

considered in arriving at his average weekly wages,

GUARDIAN FOR MINOR OR INCOMPETENT

33 USC § 911,

Sec. 11. The deputy commissioner may require the appointment

by a court of competent jurisdiction, for any person who is mentally

incompetent or a minor, of a guardian or other representative to

receive compensation payable to such person under this Act and to

exercise the powers granted to or to perform the duties required of

such person under this Act,

NOTICE OF INJURY OR DEATH

33 USC § 912,

Sec. 12, (a) Notice of an injury or death in respect of which

compensation is payable under this Act shall be given within thirty

days after the date of such injury or death (1) to the deputy commis-

sioner in the compensation district in which such injury occurred and

(2) to the employer.

(b) Such notice shall be in writing, shall contain the name and

address of the employee and a statement of the time, place, nature,

and cause of the injury or death, and shall be signed by the employce

or by some person on his behalf, or in case of death, by any person

claiming to be entiticd to compensation for such death or by a person

on his behalf. ;

" (¢) Notice shall be given to the deputy commissioner by delivering

it to him or sending it by mail addressed to his office, and to the

employer by delivering it to him or by sending it by mail addressed

to him at his last known place of business. If the employer is a part-

nership, such notice may be given to any partner, or if a corporation,

such notice. may be given to any acent or officer thereof upon whom

legal process may be served or who is in charge of the business in

the place where the injury occurred.

(d) Failure to give such notice shall not bar any claim under this

Act (1) if the employer (or his agent in charge of the busine«: in the

place where the injury occurred) or the carrier had knowledge of the

injury or death and the deputy commissioner determines that the

employer or carricr has not been prejudiced by failure to give such

notice, or (2) if the deputy commissioner excuses such failure on the

ground that for some satisfactory reason such notice could not be

given; nor unless objection to such failure is raised before the deputy

commissioner at the first hearing of a claim for compensation in

respect of such injury or death.

458

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THE COMPENSATION ACT

TIME FOR FILING OF CLAIMS

33 USC § 913.

Sec. 13. (a) The right to compensation for disability under this

Act shall be barred unless a claim therefor is filed within one year,

after the injury, and the right to compensation for death shall be

barred unless a claim therefor is filed within one year after the death,

except that if payment of compensation has been made without an

award on account of such injury or death a claim may be filed within

one year after the date of the Jast payment, Such claim shall be filed ,

with the deputy commissioner in the compensation district in which

such injury or such death occurred, ;

(b) Notwithstanding the provisions of subdivision (a) failure to

file a claim within the period prescribed in such subdivision shall not

be a bar to such right unless objection to such failure is made at the

first hearing of such claim in which all parties in interest are given

reasonable notice and opportunity to be heard.

mentally incompetent or a minor, the provisions of subdivision (a)

shall not be applicable so long as such person has no guardian or

other authorized representative, but shall be applicable in the case

of a person who is mentally incompetent or a minor from the date

of appointment of such guardian or other representative, or in the

case of a minor, if no guardian is appointed before he becomes of

age, from the date he becomes of ace.

(d) Where recovery is denicd to any person, in a suit brouzht at

Jaw or in admiralty to recover damages in respect of injury or death,

,on the ground that such person was an employce and that the de-

fendant was an employer within the meaning of this Act and that

such employer had secured compensation to such employee under

this Act, the limitation of time prescribed in subdivision (a) shali

begin to run only from the date of termination of such suit.

a ne ee oa er,

al eh ie ee ee

PAYMENT OF COMPENSATION

33 USC § 914.

Sec. 14. (a) Compensation under this Act shall be paid periodi- 3

cally, promptly, and directly to the person entitled thereto, without

an award, except where liability to pay compensation is controverted

by the employer.

(b) The first installment of compensation shall become due on the

fourteenth day after the employer has knowledge of the injury or

death, on which date all compensation then due shall be paid. There-

after compensation shall be paid in installments, semimonthly, except

where the deputy commissioner determines that payment in install-

ments should be made monthly or at some other period.

PoP wy + mare

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MARITIME PERSONAL INJURIES

ment for any cause, the employer shall immediately notify the deputy

commissioncr, in accordance with a form prescribed by the Secretary,

that payment of compensation has begun or has been suspended, as

the case may be.

(d) If the employer controverts the right to compensation he shall

file with the deputy commissioner on or before the fourteenth day

after he has knowledge of the alleged injury or death, a notice, in

accordance with a form prescribed by the Secretary, stating that the

right to compensation is controverted, the name of the claimant,

the name of the employer, the date of the alleged injury or death, and

the grounds upon which the right to compensation is controverted.

(e) If any installment of compensation payable without an award

is not paid within fourteen days after it becomes due, as provided in

subdivision (b) of this section, there shall be added to such unpaid

installment an amount equal to 10 per centum thereof, which shall be

paid at the same time as, but in addition to, such installment, unless

notice is filed under subdivision (d) of this section, or unless such

nonpayment is excused by the deputy commissioner after a showing

by the employer that owing to conditions over which he had no con-

trol such installment could not be paid within the period prescribed

for te payment.

(f) If any compensation, payable under the terms of an award, is

not paid within ten days after it becomes due, there shall be added

to such unpaid compensation an amount equal to 20 per centum

thereof, which shall be paid at the same time as, but in addition to,

such compensation, unless review of the compensation order making

such award is had as provided in section 21 and an interlocutory

. injunction staying payments is allowed by the court as provided

therein.

(g) Within sixteen days after final payment of compensation has

been made, the employer shall scnd to the deputy commissioner a

notice, in accordance with a form prescribed by the Secretary, stat-

ing that such final payment has been made, the total amount of com-

pensation paid, the name of the employce and of any other person to

whom compensation has been paid, the date of the injury or death,

and the date to which compensation has been paid. If the employer

fails to so notify the deputy commissioner within such time the Secre-

tary shall assess against such employer a civil penalty in the amount

of $100.

(h) The deputy commissioner (1) may upon his own initiative at

any time in a case in which payments are being made without an

award, and (2) shall in any case where right to compensation is con-

troverted, or where payments of compensation have been stopped or

suspcnded, upon receipt of notice from any person entiticd to com-

460

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THE COMPENSATION ACT

pensation, or from the employer, that the right to compensation is

controveried, or that payments of compensation have been stopped or

suspended, make such investigations, cause such medical examinations

to be made, or hold such hearings, and take such further action as

he considers will properly protect the rights of all parties.

(i) Whenever the deputy commissioner deems it advisable he may

require any employer to make a deposit with the Treasurer of the

United States to secure the prompt and convenient payment of such

compensation, and payments therefrom upon any awards shall be

made upon order of the deputy commissioner.

(j) Whenever the deputy commissioner determines that it is in

the interest of justice, the liability of the employer for compensation,

or any part thereof as determined by the deputy commissioner with

the approval of the Secretary, may be discharged by the payment

of a lump sum equal to the present value of future compensation

payments commuted, computed at 4 per centum true discount com-

pounded annually. The probability of the death of the injured em-

ployee or other person entitled to compensation before the expira-

tion of the period during which he is entitled to compensation shall

be determined in accordance with the American Experience Table of

Mortality, and the probability of the remarriage of the surviving

wife shall be determined in accordance with the remarriage tables

of the Dutch Royal Insurance Institution. The probability of the

happening of any other contingency affecting the amount or duration

* the compensation shall be disregarded.

(k) If the employer has made advance payments of compensation,

he shall be entitled to be reimbursed out of any unpaid installment or

installments of compensation duc.

(1) An injured employee or in case of death his dependents or

personal representative, shall give receipts for payment of compen-

sation to the employer paying the same and such employer shall pro-

duce the same for inspection by the deputy commissioner, whenever

required.

(m) The total money allowance payable to an employee as compen-

sation for an injury under this Act shall in no event exceed in the

agercgate the sum of $24,000: Provided, That this limitation shall

not apply to cases of permanent total disability or death: And pro-

vided further, That in applying this limitation there shall not be taken

into account any amount payable under section 8(g) of this title for

maintenance during rchabilitation or ary amount of additional com-

pensation required to be paid under this section for delay or default

in the payment of compensation or any amount accruing as interest

upon defaulicd compensation collectible under section 18.

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INVALID AGREEMENTS

33 USC § 915.

Sec. 15. (a) No agreement by an cmployce to pay any portion of

premium paid by his employer to a carrier or to contribute to a benefit

fund or departmeni maintained by such employer for the purpose of

providing compensation or medical services and supplies as required

by this Act shall be valid, and any employer who makes a deduction

for such purpose from the pay of any empioyce entitled to the benc-

fits of this Act shall be guilty of a misdemeanor and upon conviction

thereof shall be punished by a fine of not more than $1,000.

(b) No agreement by an employee to waive his right to compensa-

tion under this Act shall be valid.

ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS

33 USC § 916. .

Sec. 16. No assignment, release, or commutation of compensation

or benefits due or payable under this Act, except as provided by this

Act, shall be valid, and such compensation and benefits shall be

excmpt from all claims of creditors and from levy, execution, and

attachment or other remedy for recovery or collection of a debt, which

excmption may not be waived.

COMPENSATION A LIEN AGAINST ASSETS

33 USC § 917.

Sec. 17. Any person entitled to compensation under the provi-

sions of this Act shall have a licn against the assets of the carrier or

employer for such compensation without limit of amount, and shall,

upon insolvency, bankruptcy, or reorganization in bankruptcy pro-

ceedings of the carrier or employer, or both, be entitled to preference

and priority in the distribution of the asscts of such carrier or em-

ployer, or both.

DEFAULTED PAYMENTS

33 USC § 918.

Sec. 18. (a) In case of default by the employer in the payment of

compensation duc under any award of compensation for a period of

thirty days after the compensation is due and payable, the person to

whom such compensation is payable may, within one year after such

default, make application to the deputy commissioner making the

compensation order or! a supplementary order declaring the amount

of the default. After investigation, notice, and hearing, as provided

in section 19, the deputy cominissioner shall make a supplementary

order, declaring the amount of the default, which shall be filed in the

1 The word “or” probably should read “for.”

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THE COMPENSATION ACT

same manner as the compensation order. In case the payment in de-

fault is an installment of the award, the deputy commissioner may, in

his discretion, declare the whole of the award as the amount in default.

The applicant may file a certified copy of such supplementary order

with the clerk of the Federal district court for the judicial district in

which the employer has his principal place of business or maintains

an office, or for the judicial district in which the injury occurred. In

case such principal place of business or office or place where the injury

occurred is in the District of Columbia, a copy of such supplementary

order may be filed with the clerk of the United States District Court

for the District of Columbia. Such supplementary order of the deputy

commissioner shall be final, and the court shall upon the filing of the

copy enter judgment for the amount declared in defauit by the supple-

mentary order if such supplementary order is in accordance with law.

Review of the judgment so entered may be had as in civil suits for

damages at common law. Final proceedings to execute the judg-

ment may be had by writ of execution in the form used by the court in

suits at common law in actions of assumpsit. No fee shall be required

for filing the supplementary order nor for entry of judgment thercon,

and the applicant shall not be liable for costs in a proceeding for re-

view of the judgment unless the court shall otherwise direct. “The

court shall modify such judgment to conform to any later compensa-

tion order upon presentation of a certified copy thercof to the court.

(b) In cases where judgment cannot be satisfied by reason of the

employer's insolvency or other circumstances precluding payment,

the Secretary of Labor may, in his discretion and to the extent he

shall determine advisable after consideration of current commit-

ments payable frem the special fund established in section 44, make

payment from such fund upon any award made under this Act, and

in addition, provide any necessary medical, surgical, and other treat-

ment required by section 7 of the Act in any case of disability where

there has been a default in furnishing medical treatment by reason

of the insolvency of the employer. Such an employer shall be liable

for payment into such fund of the amounts paid therefrom by the

Secretary of Labor under this subscction: and for the purpose of

enforcing this liability, the Secretary of Labor for the benefit of the

fund shall be subrogated to all the rights of the person recciving

such payment or benefits, including the right of licn and priority

provided for by section 17 of this Act, as against the employer and

may by a proceeding in the name of the Secretary of Labor under

section 18 or under subsection (c) of section 21 of this Act, or both,

seck to recover the amount of the default or so much thereof as in the

judgment of the Secretary is possible, or the Secretary may settle

and compromise any such claim.

463

MARITIME PERSONAL INJURIES

PROCEDURE IN RESPECT OF CLAIMS

33 USC § 919.

Stc. 19. (a) Subject to the provisions of section 13 a claim for

compensation may be filed with the deputy commgssioner in accord-

ance with regulations prescribed by the Secretary at any time after the

first seven days of disability following any injury, or at any time after

death, and the deputy commissioner shall have full power and author-

ity to hear and determine all questions in respect of such claim.

(b) Within ten days after such claim is filed the deputy commis-

sioner, in accordance with regulations prescribed by the Secretary,

shall notify the employer and any other person (other than the

claimant), whom the deputy commissioner considers an interested

party, that a claim has been filed. Such notice may be served per-

sonally upon the employer or other person, or sent to such employer

or person by registered mail.

investigations as he considers necessary in respect of the claim, and

upon application of any interested party shall order a hearing thereon.

If a hearing on such claim is ordered the deputy commissioner shall

give the claimant and other interested parties at least ten days’

notice of such hearing, served personally upon the claimant and other

interested parties or sent to such claimant and other interested parties

by registered mail or by certified mail, and shall within twenty days

after such hearing is had, by order, reject the claim or make an award

in respect of the claim. If no hearing is ordered within twenty days

after notice is given as provided in subdivision (b), the deputy com-

missioner shall, by order reject the claim or make an award in respect

of the claim.

(d) At such hearing the claimant and the employer may cach pre-

sent evidence in respect of such claim and may be represented by any

person authorized in writing for such purpose.

to in this Act as a compensation order) shal be filed in the office of

the deputy commissioncr, and a copy thereof shall be sent by registered

mail or by certificd mail to the claimant and to the employer at the

last known address of cach.

(f) An award of compensation for disability may be made after the

death of an injured employce.

(g) At any time after a claim has been filed with him, the deputy

commissioner may, with the approval of the Secretary, transfer such

case to any other deputy commissioner for the purpose of making

investigation, taking testimony, making physical examinations or

taking such other necessary action thercin as may be directed.

(h) An injured employee claiming or cntitled to compensation

shall submit to such physical examination by a medical officer of

464

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THE COMPENSATION ACT

the United States or by a duly qualificd physician designated or

approved by the Secretary as the deputy commissioner may require.

The place or places shall be reasonably convenient for the employce.

Such physician or physicians as the employee, employer, or carrier

may select and pay for may participate in an examination if the

employee, employer, or carrier so requests. Proceedings shall be

suspended and no compensation be payable for any period during

which the employee may refuse to submit to examination.

‘

PRESUMPTIONS

33 USC § 920.

Sec. 20. In any proceeding for the enforcement of a claim for

compensation under this Act it shall be presumed, in the absence of

substantial evidence to the contrary—

(a) That the claim comes within the provisions of this Act.

(b) That sufficient notice of such claim has been given.

of the injured employce. ‘

(d) That the injury was not occasioned by the willful intention of

the injured employee to injure or kill himself or another.

RESO ee

ARS

REVIEW OF COMPENSATION ORDER

33 USC § 921.

Sec. 21. (a) A compensation order shall become effective when

filed in the office of the deputy commissioner as provided in section

19, and, unless proceedings for the suspension or setting aside of

such order are instituted as provided in subdivision (b) of this section,

shall become final at the expiration of the thirtieth day thereafter.

(b) If not in accordance with law, a compensation order may be

suspended or sct aside, in whole or in part, through injunction pro-

ceedings, mandatory or otherwise, brought by any party in interest

against the deputy commissioner making the order, and instituted

in the Federal district court for the judicial district in which the

injury occurred (or in the United States District Court for the Dis-

trict of Columbia if the injury occurred in the District). The orders,

writs, and processes of ‘the court in such proceedings may run, be

served, and be returnable anywhere in the United States. The pay-

ment of the amounts required by an award shall not be stayed

pending final decision in any such proceeding unless upon application

for an interlocutory injunction the court, on hearing, after not less

than three days’ notice to the parties in interest and the deputy com-

missioner, allows the stay of such payments, in whole or in part, where

irreparable damage would otherwise ensue to the employer. The

order of the court allowing any such stay shall contain a specific

finding, based upon eviden¢e submitted to the court and identified

[Norrie MP1] —30 465

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MARITIME PERSONAL INJURIES

by reference thercto, that such irreparable damage would result to

the employer, and specifying the nature of the damage.

a compensation order making an award, that-has become final, any

beneficiary of such award or the deputy commissioner making the

order, may apply for the enforcement of the order to the Federal

district court for the judicial district in which the injury occurred

(or to the United States District Court for the District of Columbia

if the injury occurred in the District). If the court determines that the

order was made and served in accordance with law, and that such

employer or his officers or agents have failed to comply therewith, the

court shall enforce obcdicnce to the order by writ of injunction or

by other proper process, mandatory or otherwise, to enjoin upon such x

person and his officers and agents compliance with the order. ;

(d) Proceedings for suspending, setting aside, or enforcing a

compensation order, whether rejecting a claim or making an award,

shall. not be instituted otherwise than as provided in this section

and section 18.

SP REM NA SPENT RI EAE A

APPEARANCE OF UNITED STATES ATTORNEY

FOR SECRETARY OF LABOR OR DEPUTY COMMISSIONER

33 USC § 921a.

Sec. 21a. ‘In any court proceedings under section 21 or other

provisions of the Lengshoremen’s and Harbor Workers’ Compensation

Act, it shall be the duty of the United States attorney in the judiciai

district in which the case is pending to appear as attorney or counsel

on behalf of the Secretary of Labor or his deputy commissioner when

either is a party to the case or interested, and to represent such Secre-

tary or deputy in any court in which such case may be carried on

appeal.

MODIFICATION OF AWARDS :

33 USC § 922. ’

Src. 22. Upon his own initiative, or upon the application of any ;

party in interest, on the ground of a change in conditions or because

of a mistake in a determination of fact by the deputy commissioner,

the deputy commissioner may, at any time prior to one year after the

date of the last payment of compensation, whether or not a compen-

sation order has been issucd, or at any time prior to one year after

the rejection of a claim revicw a compensation case in accordance

with the procedure prescribed in respect of claims in section 19,

and in accordance with such section issue a new compensation order

which may terminate, continuc, reinstate, increase, or decrease such

compensation, or award compensation. Such new order shall not

affect any compensation previously paid, except that an award in-

466 {Norris MPI]

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THE COMPENSATION ACT

creasing the compensation rate may be made effective from the date

of the injury, and if any part of the compensation due or to become

due is unpaid, an award decreasing the compensation rate may be

made effective from the date of the injury, and any payment made

prior thereto in excess of such decreased rate shall be deducted from

any unpaid compensation, in such manner and by such method as

may be determined by the deputy commissioner with the approval of

the Secretary.

PROCEDURE BEFORE THE DEPUTY COMMISSIONER

33 USC § 923.

Sec. 23. (a) In making an investigation or inquiry or conducting

a hearing the deputy commissioner shall not be bound by common

law or statutory rules of evidence or by technical or formal rules of

procedure, except as provided by this Act; but may make such inves-

tigation or inquiry or conduct such hearing in such manner as to

best ascertain the rights of the parties. Declarations of a deceased

employce concerning the injury in respect of which the investigation

or inquiry is being made or the hearing conducted shall be received

in evidence and shall, if corroborated by other evidence, be sufficicnt

to establish the injury.

(b) Hearings before a deputy commissioner shall be open to the

public and shall be stenographically reported, and the deputy com-

missioners, subject to the approval of the Secretary, are authorized

to contract for the reporting of such hearings. The Secretary shall

by regulation provide for the preparation of a record of the hearings

and other proceedings before the deputy commissioners.

WITNESSES

- 33 USC § 924.

Sec. 24. No person shall be required to attend as a witness in

any proceeding before a deputy commissioner at a place outside of the

State of his residence and more than one hundred miles from his

place of residence, unless his lawful mileage and fee for one day's

attendance shall be first paid or tendered to him; but the testimony

of any witness may be taken by deposition or interrogatories accord-

ing to the rules of practice of the Federal district court for the judicial

district in which the case is pending (or of the United States District

Court for the District of Columbia if the case is pending in the

District),

WITNESS FEES

33 USC § 925.

SEc. 25. Witnesses summoned in a proceeding before a deputy

commissioner or whose depositions are taken shall receive the same

fees and mileage as witnesses in courts of the United States.

467

MARITIME PERSONAL INJURIES

COSTS IN PROCEEDINGS BROUGHT WITHOUT REASONABLE GROUNDS

33 USC § 926.

Sec. 26. If the court having jurisdiction of proceedings in respect

of any claim or compensation order determines that the proceedings

in respect of such claim or order have been instituted or continued

without reasonable ground, the costs of such proccedings shall be

assessed against the party who has so instituted or continued such

proceedings.

POWERS OF DEPUTY COMMISSIONERS

33 USC § 927.

Src. 27. (a) The deputy commissioner shall have power to pre-

serve and enforce order during any such proceedings; to issue

subpoenas for, to administer oaths to, and to compel the attendance

and testimony of witnesses, or the production of books, papers, docu-

ments, and other evidence, or the taking, of depositions before any

designated individual competent to administer oaths; to examine

witnesses; and to do all things conformable to law which may be

necessary to enable him effectively to discharge the duties of his office.

(b) If any person in proceedings before a deputy commissioner

disobeys or resists any lawful order or process, or misbchaves during

a hearing or so ncar the place thercof as to obstruct the same, or

neglects to produce, after having been ordered to do so, any pertinent

book, paper, or document, or refuses to appear after having been

subpoenaed, or upon appearing refuses to take the cath as a witness,

or after having taken the oath refuses to be examined according to

law, the deputy commissioner shall certify the facts to the district

court having jurisdiction in the place in which he is sitting (or to the

United States District Court for the District of Columbia if he is

sitting in such District) which shall thereupon in a summary manner

hear the evidence as to the acts complained of, and, if the evidence so

warrants, punish such person in the same manner and to the same

extent as for a contempt committed before the court, or commit such

person upon the same conditions as if the doing of the forbidden act

had occurred with reference to the proccss of or in the presence of the

court.

FEES FOR SERVICES

33 USC § 928.

Src. 28. (a) No claim for Icgal services or for any other services

rendered in respect of a claim or award for compensation, to or on

account of any person, shall be valid unless approved by the deputy

commissioncr, or if proceedings for review of the order of the deputy

commissioner in respect of such claim or award are had before any

court, unless approved by such court. Any claim so approved shall,

468

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THe COMPENSA’:0N ACT

in the manner and to the extent fixed by the deputy commissioner or

such court, be a licn upon such compensation.

(b) Any person (1) who reccives any fec, other consideration, or

any gratuity on account of services so rendered, unless such consider-

ation or gratuity is approved by the deputy commissioner or such

court, or (2) who makes it a business to solicit employment for a

lawyer or for himself in respect of any claim or award for compensa-

tion, shall be guilty of a misdemeanor, and upon conviction thereof,

shall, for each offense, be punished by a fine of not more than $1,000

or by imprisonment not to excecd one year, or by both such fine and

imprisonment.

RECORD OF INJURY OR DEATH

33 USC § 929.

Sec. 29. Every employer shall keep a record in respect of any in-

jury to an employee. Such record shall contain such information of

disease, other disability, or death in respect of such injury as the

Secretary may by regulation require, and shall be available to inspec-

tion by the Secretary or by any State authority as such times and

under such conditions as the Secretary may by regulation prescribe.

REPORTS

33 USC § 930.

Sec. 30. (a) Within ten days from the date of any injury or death

or from the date that the employer has knowledge of a disease or in-

fection in respect of such injury, the employer shall send to the Sec-

retary a report setting forth (1) the name, address, and business of

the employer; (2) the name, address, and occupation of the employee;

(3) the cause and nature of the injury or death, (4) the year, month,

day, and hour when and the particular locality where the injury or

death occurred; and (5) such other information as the Secretary may

require. A copy of such report shall be sent at the same time to

the deputy commissioner in the compensation district in which the

injury occurred.

(b) Additional reports in respect of such injury and of the condi-

tion of such employee shall be sent by the employer to the Secretary

and to such deputy commissioner at such times and in such manner

as the Scerctary may prescribe.

evidence of any fact stated in such report in any procceding in respect

of any such injury or death on account of which the report is made.

(d) The mailing of any such report and copy in a stamped enve-

lope, within the time prescribed in subdivisions (a) or (b), to the

Secretary and deputy commissioner, respectively, shall be a com-

pliance with this section.

469

MARITIME PERSONAL INJURIES

of him by this section shall be subject to a civil penalty not to excecd

$500 for each such failure or refusal.

(f) Where the employer or the carrier has been given notice, or

the employer (or his agent in charge of the business in the place where

the injury occurred) or the carrier has knowledge, of any injury or

death of an employce and fails, neglects, or refuses to file report

thereof as required by the provisions of subdivision (a) of this section,

the limitations in subdivision (a) of section 13 of this Act shall not

bevin to run against tie claim of the injured employce or his depend-

ents entitled to compensation, or in favor of cither the employer or

the carrier, until such report shall have been furnished as required

by the provisions of subdivision (a) of this section.

PENALTY FOR MISREPRESENTATION

33 USC § 931.

Src. 31. Any person who willfully makes any false or misleading

statement or representation for the purpose of obtaining any benefit

or payment under this Act shall be guilty of a misdemeanor and on

conviction thercof shall be punished by a fine of not to excced $1,000

or by imprisonment of not to excced one year, or by both such fine

and imprisonment.

SECURITY FOR COMPENSATION

33 USC § 932.

Src. 32. (a) Every employer shall sccure the payment of compen-

sation under this Act—

(1) By insuring and kceping insured the payment of such compen-

sation with any stock company or mutual cempany or association, or

with any other person or fund, while such person or fund is authorized

(A) under the laws of the United States or of any State, to insure

workmen's compensation, and (1B) by the Secretary, to insure payment

of compensation under this Act, or

(2) By furnishing satisfactory proof to the Secretary of his financial

ability to pay such compensation and receiving an authorization

from the Sceretary to pay such compensation directly. The Secretary

may, as a condition to such authorization, require such employer to

deposit in a depository designated by the Secretary either an indemnity

bond or securities (at the option of the employer) of a kind and

in an amount determined by the Secretary, and subject to such condi-

tions as the Secretary may prescribe, which shall include authoriza-

tion to the Secretary in case of default to scll any such securities

sufficient to pay compensation awards or to bring suit upon such

bonds, to procure prompt payment of compensation under this Act.

470

THE COMPENSATION ACT |

Any employer securing compensation in accordance with the provi-

sions of this paragraph shall be known as a sclf-insurer.

(b) In granting authorizaton to any carrier to insure payment of

compensation under this Act the Secretary may take into considcra-

tion the recommendation of any State authority having supervision

over carriers or over workmen’s compensation, and may authorize any

carrier to insure the payment of compensation under this Act in a

limited territory. Any marine protection and indemnity mutual

insurance corporation or association, authorized to write insurance

against liability for loss or damage from personal injury and death,

and for other losses and damages, incidental to or in respect of the

ownership, operation, or chartcring of vessels on a mutual assess-

ment plan, shall be deemed a qualificd carrier to insure compensation

under this Act. The Secretary may suspend or revoke any such

authorization for good cause shown after a hearing at which the

carrier shall be entitled to be heard in person or by counsel and to

present evidence. No suspension or revocation shall affect the liability

of any carrier already incurred.

COMPENSATION FOR INJURIES WHERE THIRD PERSONS ARE LIABLE

33 USC § 933.

Sec. 33. (a) If on account of a disability or death for which com-

pensation is payable under this Act the person entitled to such com-

pensation determines that some person other than the employer or a

person or persons in his employ is liable in damages, he necd not elect

whether to reccive such compensation or to recover damages against

such third person.

(b) Acceptance of such compensation under an award in a com-

pensation order filed by the deputy commissioner shall operate as an

assignment to the employer of all right of the person entitled to

compensation to recover damages against such third person unless

such person shall commence an action against such third person within

six months after such award.

employer of all right of the legal representative of the deceased (here-

inafter referred to as “representative”) to recover damages against

such third person. .

(d) Such employer on account of such assignment may either

institute proceedings for the recovery of such damages or may com-

promise with such third person either without or after instituting

such proceeding.

(ec) Any amount recovered by such employer on account of such

assignment, whether or not as the result of a compromise, shall be dis-

tributed as follows:

471

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MARITIME PERSONAL INJURIES

(1) The employer shall retain an amount equal to—

(A) the expenses incurred by him in respect to such proceedings or

compromise (including a reasonable atturney’s fee as determined by 5

the deputy commissioner); ‘

(B) the cost of all benefits actually furnished by him to the em- F

ployee under section 7; Li

(D) the present value of all amounts thereafter payable as com- f

pensation, such present value to be computed in accordance with a

schedule prepared by the Secretary, and the present valuc of the cost

of all benefits thereafter to be furnished under section 7, to be esti-

mated by the deputy commissioncr, and the amounts so computed

and estimated to be retaincd by the employer as a trust fund to pay

such compensation and the cost of such bencfits as they become due,

and to pay any sum finally remaining in excess thereof to the person

entitled to compensation or to the representative; and

(2) The employer shall pay any excess to the person entitled to

compensation or to the representative, Iess onc-fifth of such excess

which shall belong to the employer. e

(f) If the person entitled to compensation institutes proceeding:

within the period prescribed in section 33(b), the employer shall be

required to pay as compensation under this Act a sum equal to the

excess of the amount which the Secretary determines is payable on

account of such injury or death over the amount recovered against

such third person.

(g) If compromise with such third person is made by the person

entitled to compensation or such representaiive of an amount Iess than ,

the compensation to which such person or representative would be

entitled to under this Act, the employer shall be liable for compensa-

fion as determined in subdivision (f) only if such compromise is made

with his written approval.

(h) Where the employer is insured and the insurance carrier has

assumed the payment of the compensation, the insurance carrier shall

be subrogated to all the rights of the employer under this section.

(i) The right to compensation or benefits under this Act shall be

the exclusive remedy to an employee when he is injured, or to his

cligible survivors or legal representatives if he is killed, by the neeli-

gence or wrong of any other person or persons in the same employ:

Provided, That this provision shall not affect the liability of a person

other than an officer or cmployce of the employer.

COMPENSATION NOTICE

33 USC § 934.

Src. 34. Every employer who has sccured compensation under

the provisions of this Act shall keep posted in a conspicuous place or

472

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THE COMPENSATION ACT [

places in and about his place or places of business typewritten or

printed notices, in accordance with a form prescribed by the Sccre-

tary, stating that such employer has secured the payment of compen-

sation in according with the provisions of this Act. Such notices

shall contain the name and address of the carrier, if any, with whom

the employer has sccured payment of compensation and'the date of

the expiration of the policy.

SUBSTITUTION OF CARRIER FOR EMPLOYER

33 USC § 935. ' ;

Sec. 35. In any case where the employer is not a self-insurer, in

order that the liability for compensation imposed by this Act may be

most effectively discharged by the employer, and in order that the

administration of this Act in respect of such liability may be facilitated,

the Secretary shall by regulation provide for the discharge, by the

carrier for such employer, of such obligations and duties of the em-

ployer in respect to such liability, imposed by this Act upon the em-

ployer, as it considers proper in order to effectuate the provisions of

this Act. For such purposes (1) notice to or knowledge of an em-

ployer of the occurrence of the injury shall be notice to or knowledge

of the carricr, (2) jurisdiction of the employer by a deputy commis-

sioner, the Secretary, or any court under this Act shall be jurisdiction

of the carricr and (3) any requirement by a deputy commissioncr, the

Scerctary, or any court under any compensation order, finding, or

decision shall be binding upon the carricr in the same manner and to

the same extent as upon the employcr.

INSURANCE POLICIES

33 USC § 936. '

Sec. 36. (a) Every policy or contract of insurance issucd under

authority of this Act shall contain (1) a provision to carry out the pro-

visions of section 35, and (2) a provision that insolvency or bankruptcy

of the employer and/or discharge therein shall not relieve the carrier

from payment of compensation for disability or death sustained by

an employce during the life of such policy or contract.

(b) No contract or policy of insurance issued by a carrier under

*-4his Act shall be canceled prior to the date specified in such contract

or policy for its expiration until at least thirty days have clapsed after

a notice of cancellation has been scent to the deputy commissioner

and to the employer in accordance with the provisions of subdivision

CERTIFICATE OF COMPLIANCE WITH THIS ACT

33 USC § 937.

Sec. 37. No stevedoring firm shall be employed in any compensa-

473

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MARITIME PERSONAL INJURIES

tion district by a vessel or by hull owners until it presents to such

vessel or hull owners a certificate issued by a deputy commissioner

assigned to such district that it has complied with the provisions of

this Act requiring the securing of compensation to its employces.

Any person violating the provisions of this section shall be punished

by a fine of not more than $1,000, or by imprisonment for not more

than one year, or by both such fine and imprisonment.

PENALTY FOR FAILURE TO SECURE PAYMENT OF COMPENSATION

33 USC § 938.

Sec. 38. (a) Any employer required to secure the payment of

compensation under this Act who fails to secure such compensation

shall be guilty of a misdemeanor and, upon conviction thercof, shall

be punished by a fine of not more than $1,000, or by imprisonment

for not more than one year, or by both such fine and imprisonment,

and in any case where such employer is a corporation, the president,

secretary, and treasurer thercof shall be also severally liable to such

fine or imprisonment as herein provided for the failure of such cor-

poration to secure the payment of compensation; and such president,

secretary, and treasurer shall be severally personally liable, jointly

with such corporation, for any compensation or other benefit which

may accrue under the said Act in respect to any injury which may

occur to any employce of such corporation while it shall so fail to

secure the payment of compensation as required by section 32 of this

Act.

(b) Any employer who knowingly transfers, sclls, encumbers,

assigns, or in any manner disposes of, conceals, secretes, or destroys

any property belonging to such employer. after one of his employces

has been injured within the purview of this Act, and with intcnt to

. avoid the paymcin of compensation under this Act to such employce

or his dependents, shall be guilty of a misdemeanor and, upon con-

viction tLereof, shall be punished by a fine of not more tian $1,000,

or by imprisonment for not more than one year, or by both such fine

and imprisonment; and in any case where such employer is a corpora-

tion, the president, secretary, and treasurer thereof shall be also

severally liabl: to such penalty of imprisonment as well as jointly

liable with suc corporation for such fine.

under this Act.

ADMINISTRATION AND VOCATIONAL REHABILITATION

33 USC § 939.

Sec. 39. (a) Except as otherwise specifically provided, the Secic-

tary shall administer the provisions of this Act, and for such purpose

the Secretary is authorized (1) to make such rules and regulations,

474

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THE COMPENSATION ACT Tt

(2) to appoint and fix the compensation of such temporary technical

assistants and medical advisers, and, subject to the provisions of the

civil service laws, to appoint, and, in accordance with the Classifica-

tion Act of 1923, to fix the compensation of such deputy commis-

sioners (except deputy commissioners appointed under subdivision

(a) of section 40) and other officers and employees; and (3) to make

such expenditures (including expenditures for personal services and

rent at the scat of government and elsewhere, for law books, tooks of

reference, periodicals, and for printing and binding) as may be neces-

sary in the administration of this Act. All expenditures of the Secre-

tary in the administration of this Act shall be allowed and paid as

provided in section 45 upon the presentation of itemized vouchers

therefor approved by the Scerctary.

(b) The Sceretary shall establish compensation districts, to include

the high seas and the arcas within the United States to which this

Act applies, and shall assign to each such district one or more deputy

commissioners, as the Secretary deems advisable. Judicial proceed-

ings under sections 18 and 21 of this Act in respect of any injury or

death occurring on the high scas shall be instituted in the district

court within whose territorial jurisdiction is located the office of the

deputy commissioner having jurisdiction in respect of such injury or

death (or in the United States District Court for the District of

Columbia if such oflice is located in such District).

manently disabled employees and shall arrange with the appropriate

public or private agencies in States or Territories, possessions, or the

District of Columbia for such rehabilitatiun. The Secretary may in

his discretion furnish such prosthetic appliances or other apparatus

made necessary by an injury upon which an award has been made

under this Act to render a disabled employce fit to engage in a

remuncrative occupation. Where necessary rehabilitation services are

not available otherwise, the Secretary of Labor may, in his discretion,

use the fund provided for in section 44 in such amounts as may be

necessary to procure such services, including necessary prosthetic

appliances or other apparatus. This fund shall also be available in

such amounts as may be authorized in annual appropriations for the

Department of Labor for the costs of administering this subsection.

DEPUTY COMMISSIONERS

33 USC § 940.

Sec. 40. (a) The Secretary may appoint as deputy commissioncrs

any member of any board, commission, or other agency of a State to

act as deputy commissioner for any compensation district or part

thereof in such State, and may make arrangements with such board,

commission, or other agency for the use of the personnel and facilities

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MARITIME PERSONAL INJURIES

thereof in the administration of this Act. The Secretary may make

such arrangements as may be deemed advisable by him for the pay-

ment of expenses of such board, commission, or other agency, incurred

in the administration of this Act pursuant to this section, and for the

payment of salarics to such board, commission, or other agency, or the

members thereof, and may pay any amounts agreed upon to the

proper officers of the State, upon vouchers approved by the Sec-

retary.

(b) In any Territory of the United States or in the District of

Columbia a person holding an office under the United States may be

appointed deputy commissioner and for services rendered as deputy

commissioner may be paid compensation, in addition to that he is

receiving from the United States, in an amount fixed by the Secretary

in accordance with the Classification Act of 1923.

under subdivision (a) of this section) may be transferred from one

compensation district to another and may be temporarily detailed

from one compensation district for service in another in the discretion

of the Secretary.

(d) Each deputy commissioner shall maintain and keep open dur-

ing reasonable business hours an oflice, at a place designated by the

Secretary, for the transaction of business under this Act, at which

office he shall keep his official records and papers. Such office shall

be furnished and equipped by the Sceretary, who shall also furnish

the deputy commissioner with all necessary clerical and other assist-

ants, records, books, blanks, and supplics. Wherever practicable such

office shall be located in a building owned or Icased by the United

States; otherwise the Secretary shall rent suitable quarters.

reason ceases to act as such deputy commissioncr, all of his official

records and papers and office equipment shall be transferred to his

successor in oflice or, if there be no successor, then to the Secretary

or to a deputy commissioner designated by the Secretary.

(f) Neither a deputy commissioner nor any business associate of a

deputy commissioner shall appear as attorney in any preceeding

under this Act, and no deputy commissioner shall act in any such

case in which he is interested, or when he is employed by any party

in interest or related to any party in intcrest by consanguinity or

affinity within the third degree as determined by the common law.

SAFETY RULES AND REGULATIONS

33 USC § 941.

Src. 41. (a) Every employer shall furnish and maintain employ-

ment and places of employment which shall be reasonably safe for his

employees in all employments covered by this Act and shall install,

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THE COMPENSATION ACT

furnish, maintain, and use such devices and safeguards with particular

refercnce to equipment used by and working conditions established

by such employers as the Secretary may determine by regulation or

order to be reasonably necessary to protect the life, health, and safety

of such employees, and to render safe such employment and placcs of

employment, and to prevent injury to his employees. However, the

Secretary may not make determinations by regulation or order under

this section as to matters within the scope of title 52 of the Revised

Statutes and Acts supplementary or amendatory thereto, the Act of

June

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