201 F.2d 437 | 5th Cir. | 1953
Dissenting Opinion
dissenting.
This accident occurred over dry land-some four hundred feet from the water’s, -edge. That part of the marine railway on. which the ship rested differed from a dry-dock in the respect upon which the Longshoremen’s Act turns in that it was not in or over navigable waters. The Jones. Act is amphibious. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42, 63 S.Ct. 488, 87 L.Ed. 596. The Longshoremen’s Act, on the other hand, is restricted to compensation for injuries occurring on navigable waters. Swanson v.
Further, “Congress made clear its purpose to permit state compensation protection whenever possible”. Davis v. Department of Labor and Industries, 317 U.S. 249, 252, 253, 63 S.Ct. 225, 227, 87 L.Ed. 246; see Parker v. Motor Boat Sales, 314 U.S. 244, 249, 250, 62 S.Ct. 221, 86 L.Ed. 184. Ashore is the natural habitat of the State compensation acts, and it seems to me that the Longshoremen’s Act cannot survive on land. I, therefore, respectfully dissent.
Lead Opinion
Filed under the provisions of the Longshoremen’s Act of March 4, 1927,
The claim of appellant was- that the place where, and the circumstances under which, the injuries occurred are such that the Louisiana State Compensation Act, LSA-R.S. 23:1021 et seq., furnished the exclusive remedy; that the Longshoremen’s and Harbor Workers’ Compensation Act was therefore inapplicable; and that the deputy commissioner was without jurisdiction or authority to make an award. In short, its position was that the language, “navigable waters of the United States, including any dry dock”, as those words are used in Section 3(a) of the Act, 33 U.S.C.A. § 903(a) dpes not extend to and include the marine railway.
The commissioner, as vigorously contending that a marine railway is a dry dock within the meaning of the Act, filed a motion for summary judgment.
The district judge, on the authority of two cases decided by this court, Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, and Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, granted the motion and entered judgments dismissing the suits with costs.
Here seeking their reversal, appellant concedes that the decisions of this court, on which the district judge, relies, do- support the judgments. It insists, however, that these cases were wrongly decided; that they have been in effect overruled by later decisions of the Supreme Court; and that this court should now disavow them.
We cannot agree with these views. Quite to the contrary, we are of the clear opinion that the cases were when decided well decided; that no case since decided furnishes any sound basis for a different view; and that many cases which have been decided since
The judgments appealed from were, rightly -entered. They are affirmed.
. 44 Stat. 1424, 33 U.S.C.A. § 901 et seq.
. By stipulation or by uneontroverted testimony, it was established that, at the time of the explosion the barge had been hauled out of the Mississippi River on the cradle of a marine railway, and that both cradle and barge at the time of the explosion and for some time previously thereto had been at rest ashore at a point some 400 feet from the water.
. DeBardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481; Newport News Shipbuilding & Dry Dock Co. v. O’Hearne, 4 Cir., 192 F.2d 968; Massachusetts Bonding & Insurance Co. v. Lawson, 5 Cir., 149 F.2d 853; Western Boat Bldg. Co. v. O’Leary, 9 Cir., 198 F.2d 409.