# Petition for Writ of Certiorari — Hennigan v. Placid Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1030%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1092 ## Text SS 0. 2.2.2.0 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 ll 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. 3 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- 4 shoremen’s and Harbor Worker’s Compensa- tion Act, with the consequence that, (c) the employer is exposed to no liability 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 5 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 6 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 7 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 8 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. 9 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: 10 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. ***” . : = wee _ ba . ‘“ - . = se 4 x - -~ \ - . ; - 4 ~ = - a ; 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 é ‘ : Z ; ENE Te Borne 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 opt EF ee a eee aE ET | PATO Ll TAPS RR ay FP ALE a ee CGC LEON IO NE EEE ELEC OE | FOOLED GI, rate Py Pt Pe Te ee i ene ~ a 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. (c) The deputy commissioner shall approve the qualifications of 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. ee > pert g pe - ‘oer ecm 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 ' 2 ONO OO Rw nee ere TO a =e wereg i ee ee ee ee nt ee 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 PUM WOT A He) 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 RC Cor A edn ne “a Nee 2. reas , . —— - . mag ey ee ore ‘ ~, . Grameen tT o* 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. (c) Temporary partial disability: In case of temporary partial 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 we ee Le Pe er ee cee et eS ee Se a —_— Bi 3 2 ; a ; : ° x t ‘ § ‘ ; , ; } : ; ; ° 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. (c) If there be one surviving child of the deceased, but no surviving 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. (c) In computing death benefits the average weckly wages of the “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 ? ety Ser og +S MO ons ete? “aps Se | ee — EE EL IE Fe EOE I ONLY Oe ~ — “ cov e.« tre Owe! Stoner be ee 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. (c) If either of the foregoing methods of arriving at the average 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 Be AERC HHT CON 9 EAR SARIS Pet, QE RRR ERE TN 0 a ee “ ee _ _— -_ = = —s 1 tty ME Ranta ae Te eae SFOS LE SR BOSS OOP) Ra = ap — - Pore ge ageR et: Apesge etegc™ pes Rae RNR Of OG Se ee Et! PEE ORIG, PEI 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 a el i a a ta a De Se ee ee ee en, ‘ omnes e ee a a SO FEO, ELIE wear nd ~eep ser - wrens we | £ Ob enges Oy OAS WON Oe Oh i el 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. (c) If a person who is entitled to compensation under this Act is 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 439 ‘ z po romarnoincem aD MARITIME PERSONAL INJURIES (c) Upon making the first payment, and upon suspension of pay- 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 =P arma te LL | — bag % . >. ** - ~ oe -* ~-« “+. ed _“™ «© er ee et He Gee - ee © ae 7 f - « . - & aN rr? rT werrr ors: 1 eh n* Kt Be TD DP ‘ ‘ FRO IEF Le t town 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. 461 SETS Ne EI CL MARITIME PERSONAL INJURIES 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.” 462 GP OSI J ee ee Tete Se tet 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. (c) The deputy commissioner shall make or cause to be made such 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. (c) The order rejecting the claim or making the award (referred 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 —~| £ ; ¢ : ww - -. aa SD OD Ola nn as 7 ee eg A REET TEETER Sam so Nem mee ahmne ene 7 ane —T . : e } “ Bo eens iach eo ba Sade a - — ¥ . 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. (c) Any report provided for in subdivision (a) or (b) shall not be 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 (c) Any employer who fails or refuses to send any report required 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 ! t 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. (c) The payment in section 44 shall operate as an assignment to the 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 4 OTR: See IOP TIT NG SPOT s lie. | MARITIME PERSONAL INJURIES (1) The employer shall retain an amount equal to— (A) the expenses incurred by him in respect to such proceedings or r 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 (C) all amounts paid as compensation; é (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 a IST NS: SN LS GIN PREIS 9 Ne OE AI Ra tit BONNE BELLE BRE IEP II IEE Le aL PS TIE LE SFO EE LO TIERS EPP SH US FOILED LL OG EI LEE PERIGEE 7 plate ee te GRBs Pep cw — A AEED DO aS ie ON a PO oN eee ee eee 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 (c) of section 12. CERTIFICATE OF COMPLIANCE WITH THIS ACT 33 USC § 937. Sec. 37. No stevedoring firm shall be employed in any compensa- 473 Peon srt an tiie SRR Ee nd eh ee ‘ es ne aD > is _— , Sat. WEE PAP oe OE tg OT Ly ae ~ - _ > - : ee ad i | ” Se RAD oe + pe LEIP LAGES ANOLE LON OIE SY AIREY LEON LYELL ES CNA ENE EH 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. (c) This section sis2li not affect any other liability of the employer 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 a Ra ro | 2 RT AO ROR PE FA MVE F BIS ip GE PLOT POG ITIRIE AEF Sie IIT Yet Leer” tia ee ? ei eee oe | ar 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). (c) The Secretary shall direct the vocational rehabilitation of per- 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 475 ore > pa GOr a Mere ov oo ssi 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. (c) Deputy commissioners (except deputy commissioners appointed 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. (c) If any deputy commissioner is removed from oflice, or for any 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, 476 THA S96 PM ee RP AM ES AS ‘ ‘ ‘ , _— ss 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 15, 1917 (ch. 30, 4u Stat. 220), as amended, or section 4(e) of the Act of August 7, 1953 (ch. 345, 67 Stat. 462), as amended. (b) The Sccretary, in enforcing and administering the provisions of this section, is authorized in addition to such other powers and duties as are conferred upon him— (1) to make studies and investigations with respect to safety pro- visions and the causes and prevention of injurics in employments covered by this Act and from time to time make to Congress such recommendations as he may deem proper as to the best means of preventing such injurics, and in making such studies and investiga- tions to cooperate with any agency of the United States or with any State agency engaged in similar work; (2) to utilize the services of any agency of the United States or any State agency engaged in similar work (with the consent of such agency) in connection with the administration of this section; (3) to promote uniformity in safety standards in employments covered by this Act through cooperative action with any agency of the United States or with any State agency engaged in similar work; (4) to provide foz the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe working conditions in employments covered by this Act, and to consult with and advise employers as to the best means of preventing injurics; (5) to hold such hearings, issue such orders, and make such deci- sions, based upon findings of fact, as are deemed to be necessary to enforce the previsions of this section, and for such purposes the Secre- tary and the district courts shall have the authority and jurisdiction provided by section 5 of the Act of June 30. 1936 (ch. 881, 49 Stat. 2036), as amended, and the Sceretary shall be represented in any court proceedings as provided in the Act of May 4, 1928 (ch. 502, 45 Stat. 490), as amended. (c) The Secretary or his authorized representative may inspect such places of employment, question such employees, and investigate such conditions, practices, or matters in connection with employment subject to this Act, as he may deem appropriate to determine whether any person has violated any provision of this section, or any rule or 477 APNE Ye NERS ATION EE et ete ead PN PYRE eee aoe P12" aoe o . MARITIME PERSONAL INJURIES regulation issued thereunder, or which may aid in the enforcement of the provisions of this section. No employer or other person shall re- fuse to admit the Sccretary or his authorized representatives to any such place or shall refuse to permit any such inspection. (d) Any employer may request the advice of the Secretary or his authorized representative, in complying with the requirements of any rule or regulation adopted to carry out the provisions of this section. In case of practical difficulties or unnecessary hardships, the Secretary in his discretion may grant variations from any such rule or regulation, or particular provisions thereof, and permit the use of other or different devices if he finds that the purpose of the rule or regulation will be observed by the variation and the safety of employees will be equally secured thereby. Any person affected by such rule or regula- tion, or his agent, may request the Secretary to grant such variation, stating in writing the grounds on which his request is based. Any authorization by the Secretary of a variation shall be in writing, shall describe the conditions under which the variation shall be permitted, and shall be published as provided in section 3 of the Administrative Procedure Act (ch. 324, 60 Stat. 237), as amended. A properly in- ~ dexed record of all variations shall be kept in the office of the Secretary and open to public inspection. (ce) The United States district courts shall have jurisdiction for cause shown, in any action brought by the Secretary, represented as provided in section 21a of this act, to restrain violations of this section or of any rule, regulation, or order of the Secretary adopted to carry out the provisions of this section. (f) Any employer who, willfully, violates or fails or refuses to comply with the provisions of subsection (a) of this section, or with any lawful rule, regulation, or order adopted to carry out the provi- sions of this section, and any employer or other person who willfully interferes with, hinders, or delays the Secretary or his authorized representative in carrying out his duties under subsection (c) of this section by refusing to admit the Secretary or his authorized repre- sentative to any piace, or to permit the inspection or examination of any employment or place of employment, or who willfully hinders or delays the Secretary or his authorized representative in the perform- ance of his duties in the enforcement of this section, shall be guilty of an offense, and. upon conviction thereof, shall be punished for each offense by a fine of not less than $100 nor more than $3,000; and in any case where such employer is a corporation, the officer wio will- fully permits any such violation to occur shall be euilty of an offense. and, upon conviction thereof, shall be punished also for cach offense by a fine of not Iess than $100 nor more than $3,000. The liability hercunder shall not affect any other liability of the employer under this Act. 478 A / THE COMPENSATION ACT (g)(1) The provisions of this section shall not apply in the case of any employment relating to the operations for the exploration, production, or transportation by pipeline of mincral resources upon the navigable waters of the United States, nor under the authority of the Act of August 7, 1953 (ch. 345, 67 Stat. 462), nor in the case of any employment in conncction with lands (except filled in, made or reclaimed lands) beneath the navigable waters as defined in the Act of May 22, 1953 (ch. 65, 67 Stat. 29) nor in the case of any employment for which compensation in case of disability or death is provided for employees under the authority of the Act of May 17, 1928 (ch. 612, 45 Stat. 600), as amended, nor under the authority of the Act of August 16, 1941 (ch. 357, 55 Stat. 622), as amended. (2) The provisions of this section, with the exception of paragraph (1) of subsection (b), shall not be applicd under the authority of the Act of September 7, 1916 (ch. 458, 39 Stat. 742), as amended. TRAVELING EXPENSES 33 USC $942. Sec. 42. The Secretary, deputy commissioners, and other em- ployces of the Secretary shall be entitled to receive their necessary traveling expenses and expenses actually incurred for subsistence while traveling on official business and away from their designated stations, as provided by the Subsistence Expense Act of 1926. ANNUAL REPORT 33 USC § 943. Sec. 43. The Secretary shall make to Congress at the beginning of each regular session a report of the administration of this Act for the preceding fiscal year, including a detailed statement of receipts of and expenditures from the funds established in sections 44 and 45, together with such recommendations as the Secretary deems advisable. SPECIAL FUND 33 USC § 944. Sec. 44. (a) There is hereby established in the Treasury of the United States a special fund for the purpose of making payments in accordance with the provisions of subsections (f) and (g) of section 8, of subsection (b) of section 18. and of subsection (c) of section 39 of this Act. Such fund shall be administered by the Seeretarv. The Treasurer of the United States shall be the custodian of such fund, and all moneys and securitics in such fund shall be held in trust bv such Treasurer and shall not be moncy or property of the United States. (b) The Treasurer is authorized to disburse moncys from such fund only upon order of the Secretary. He shall be required to give 479 “BARRIO ere we or * << ain A a EE DS MES. . - ba f MARITIME PERSONAL INJURIES bond in an amount to be fixed and with securities to be approved by the Secretary of the Treasury and the Comptroller General of the United States conditioned upon the faithful performance of his duty as custodian of such fund. (c) Payments into such fund shall be made as follows: (1) Each employer shall pay $1,000 as compensation for the death of an employee of such employer resulting from injury where the deputy commissioner determines that there is no person entitled under this Act to compensation for such death. The procceds of this fund shall be available for payments under subsections (f) and (g) of sec- tion 8, under subsection (b) of section 18, and under subsection (c) of section 39: Provided, That payments authorized by subsection (f) shall have priofity over other payments authorized from the fund: Provided further, That at the close of cach fiscal year the Secretary of Labor shall submit to the Congress a complete audit of the fund. (2) All amounts collected as fines and penalties under the pro- visions of this Act shall be paid into such fund. (d) The Treasurer of the United States shall deposit any moncys paid into such fund into such depository banks as the Secretary may designate and may invest any portion of the funds which, in the opinion of the Sccretary, is not necded for current requirements, in bonds or notes of the United States or of any Federal land bank. (ce) Neither the United States nor the Secretary shall be liable in respect of payments authorized under section 8 in an amount greater than the moncy or property deposited in or belonging to such fund. (f) The Comptrolicr General of the United States shall audit the account for such fund, but the action of the Secretary in making pay- ments from such fund shall be final and not subject to review, and the Comptroller General is authorized and directed to allow credit in the accounts of any disbursing officer of the Secretary for payments made from such fund authorized by the Secretary. (g) All civil penalties provided for in this Act shall be collected by civil suit brought by the Secretary. ADMINISTRATION FUND 33 USC § 945. Sic. 45. (a) There is established in the Treasury of the United States a special fund for the purpose of providing for the payment of all expenses in respect of the administration of this Act. Such fund shall be administered by the Secretary. The Treasurer of the United States shall be the custodian of such fund, and all moneys and secu- ritics in such fund shall be held in trust by such Treasurer and shall not be the money or property of the United States, (b) The provisions of subdivisions (b), (d), and (f) of section 44 shall be applicable to the fund established. 480 bird power a bY THE COMPENSATION ACT APPROPRIATION 33 USC § 946. Sec. 46. (a) There is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $250,000, which shall be covered into the administration fund cstab- lished in section 45 and shall be available for expenses incurred in the administration of this Act during the scimainder of the fiscal year ending June 30, 1927, and during the fiscal year ending June 30, 1928. All unexpended balances of any appropriations made under authority of this section, remaining in such fund on July 1, 1928, shall be covered into the Treasury of the United States as miscellaneous re- ceipts. AVAILABILITY OF APPROPRIATIONS 33 USC § 947. Sec. 47. The expenses incurred for salaries and contingent ex- penses by the Secretary in the administration (1) of the Act entitled “An Act to provide compensation for employces of the United States suffering injuries while in the performance of their duties, and for other purposes,” approved September 7, 1916, as amended, and (2) of this Act, may be paid from the appropriations for salaries and contingent expenses for the administration of such Act of September 7, 1916, and from the fund established in section 45 of this Act, in such pro- portion as the Secretary, with the approval of the Director of the Burcau of the Budget, determines to be fairly attributable to the cost of administration of the respective Acts, but the total amount paid from such appropriation and such fund in any fiscal year on account of the administration of such Act of September 7, 1916, shall not exceed the amounts appropriatcd for salaries and contingent expenses for the administration of such Act for such ycar. LAWS INAPPLICABLE 33 USC § 948. Sec. 48. Nothing in sections 4283, 4284, 4285, 4286, or 4289 of the Revised Statutes, as amended, nor in scction 18 of the Act entitled “An act to remove certain burdens on the American merchant marine and encourage the American forcign carrying trade and for ciher purposes,” approved June 26, 1884, as amended, shall be held to limit the amount for which recovery may be had (1) in any suit at law or in admiralty where an employer has failed to secure com- pensation as required by this Act, or (2) in any proceeding for com- pensation, any addition to compensation, or any civil penalty. [Norris MP1] —31 431 ona AGED IEE AI or RIDA E NADP ok RRL BAO EME DOA LOT Ae LO ORO RPA TN ate ad - MARITIME PERSONAL INJURIES EFFECT OF UNCONSTITUTIONALITY 33 USC § 949. Sec. 49. If any part of this Act is adjudged unconstitutional by the courts, and such adjudication has the effect of invalidating any payment of compensation under this Act, the period intervening between the time the injury was sustaincd and the time of such adjudication shall not be computed as a part of the time prescribed by law for the commencement of any action against the employer in respect of such injury; but the amount of any compensation paid under this Act on account of such injury shall be deducted from the amount of damages awarded in such action in respect of such injury. SEPARABILITY PROVISION 33 USC § 950. Sec. 50. If any provision of this Act is declared unconstitutional or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and the applicability of such provision to other persons and circumstances shall not be, affected thereby. , EFFECTIVE DATE 33 USC § 951. Sec. 51. Sections 39 to 51, inclusive, shall become effective upon the passage of this Act, and the remainder of this Act shall become effective on July 1, 1927. Approved, March 4, 1927. 482 (Norris MPI] ~— Une RE TR: " RR LET I es z ss en | OUTER CONTINENTAL SHELF LANDS ACT 43 USC 1331, 1332 and 1333 oe’ 43 § 1331 PUBLIC LANDS Ch. 29 § 1331. Definitions When used in this subchapter— (a) The term “outer Continental Shelf” means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the sub- soil and seabed appertain to the United States and are subject to its jurisdiction and control; (b) The term “Secretary” means the Secretary of the Interior; (c) The term “mineral lease” means any form of authorization for the exploration for, or development or removal of deposits of, oil, gas, or other minerals; and (d) The term “person” includes, in addition to a natural person, an association, a State, a political subdivision of a State, or a private, public, or municipal corporation. Aug. 7, 1953, c. 345, § 2, 67 Stat. 462. ' | 483 i a § 1332. Congressional declaration of policy; jurisdiction; construction (a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter. (b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. Aug. 7, 1953, c. 345, § 3, 67 Stat. 462. 484 § 1333. Laws and regulations governing lands—Constitu- tion and United States laws; laws of adjacent States; publication of projected States lines; re- striction on State taxation and jurisdiction (a) (1) The Constitution and laws and civil and political jurisdic- tion of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islends and fixed struc- tures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of ex- clusive Federal jurisdiction located within a State: J rovided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter. (2) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and crim- inal laws of each adjacent State as of August 7, 1953 are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending sea- ward and defining each such area. All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf. (3) The provisions of this section for adoption of State law as the law of the United States\shali never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom. Jurisdiction of United States district courts (b) The United States district courts shall have original jurisdic- tion of cases and controversies arising out of or in connection with any operations conducted on Vie outer Continental Shelf for the pur- pose of exploring for, developing, removing or transporting by pipe- Jine the natural resources, or involving rights to the natural re- sources of the subsoil and seabed of the outer Continental Shelf, and proceedings with respect to any such case or controversy may be in- stituted in the judicial district in which any defendant resides or may be found, or in the judicial district of the adjacent State nearest the place where the cause of action arose. 485 ‘ renee LIP ER ee ee re 43 §1333 : Applicability of Longshoremen's and Harbor Workers‘ Compensation Act; definitions (c) With respect to disability or death of an employee resulting from any injury occurring as the result of operations described in subsection (b) of this section, com »ensation shall be payable under the provisions of the Longshoreme’1’s and Harbor Workers’ Compen- sation Act. For the purposes of the extension of the provisiors of the Longshoremen’s and Harbor Workers’ Compensation Act t,nder this section— (1) the term “employee” does not include a master or member of a crew of any vessel, or an officer or employee of the United States or any agency thereof or of any State or foreign govern- ment, or of any political subdivision thereof ; (2) the term “employer” means an employer any of whose employees are employed in such operations; and (3) the term “United States” when used in a geographical sense includes the outer Continental Shelf and artificial islands and fixed structures thereon. Applicability of National Labor Relations Act (d) For the puyposes of ‘ie National Labor Relations Act, as amended, any unfajy labor practice, as defined in such Act, occurring upon any artificig}{sland or fixed structure referred to in subsection © (a) of this section shall be deemed to have occurred within the ju- dicial district of the adjacent State nearest the place-of location of . such island or structure. Const Guard regulations; marking of istands and structures; offenses and penalties (e) (1) The head of the Department in which the Coast Guard is operating shall have authority to promulgate and enforce such rea- sonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on the islands and structures referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deem necessary. (2) The head of the Department in which the Coast Guard is op- erating may mark for the protection of navigation any such island or structure whenever the owner has failed suitably to mark the same in accordance with regulations issued hereunder, and the owner shall pay the cost thereof. Any person, firm, company, or corporation who shall fail or refuse to obey any of the lawful rules and regulations issued hereunder shall be guilty of a misdemeanor and shall be fined not more than $100 for each offense. Each day during which such violation shall continue shall be considered a new offense. 43 § 1333 Prevention of obstruction to navigation by Secretary of the Army {f) The authority of the Secretary of the Army to prevent ob- struction to navigation in the navigable waters of the United States is extended to artificial islands and fixed structures located on the outer Continental Shelf. Provisions as non-exclusive (g) The specific application by this section of certain provisions of law to the subsoil and seabed of the outer Continental Shelf and the artificial islands and fixed structures referred to in subsection (a) of this section or to acts or offenses occurring or committed thereon shall not give rise to any inference that the application to such islands and structures, acts, or offenses of any other provision of law is not intended. Aug. 7, 1953, c. 345, § 4, 67 Stat. 462. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1030%3A1. Public record. Not legal advice.