*2
BRYAN,
Before
SIB-
FOSTER, and
Judges.
LEY, Circuit
BRYAN,
Judge.
Circuit
appeal
This is an
from a decree dismiss-
ing
enjoin
a bill to
the enforcement of a com-
pensation
award which
made in reliance
Longshoremen’s
provisions
Act,
Harbor
Workers’
Stat.
chapter
challenged
USCA,
18. The
deputy
award was made
commissioner
Joseph I.
who was in-
Roberts,
in favor of
jured
repairing
while
Elsie
a small
D.,
tugboat
tons net.
of less than five
At
injury the
was on a marine rail-
time of
boat
way,
which it had been thereto-
means of
navigable
from the
fore removed
of the Miami
waters
was do-
river. Roberts
ing
employment by
work under
He
owner
boat.
was a
car-
first-class
penter,
steady job.
but
have a
Dur-
ing the winter months he was able to secure
reasonably regular employment in a boat-
during
yard, but
the dull summer season he
usually
carpenters.
laid off with other
deputy
during
The
commissioner found that
year immediately preceding
the date of
paid
he had been
$500,
about
two others small amounts
stated;
which were not
but the award was
earnings, amounting
based on the annual
$1,700, of another
same
practically
class whose
con-
Appellants
tinuous. The
are the owner of
the boat and the insurance carrier. Their
main contention is that the
covered
because it occurred on a
railway. They
also make the minor
deputy
contention that
commissioner,
even if he had
compen-
to award
sation, made an excessive award and one
dissenting.
Judge,
SIBLEY, Circuit
theory.
founded
an erroneous
“coverage”
of the act is found in sec-
(a),
(a),
USCA 903
in so
which,
materia] here,
far as is
is as follows: “Com-
payable
chap-
shall be
under this
respect
disability
ter in
or death
anof
em-
ployee,
disability
if the
re-
sults from an
(in-
waters of the United States
cluding
dock) and
for the
disability
through
or death
workmen’s com-
pensation proceedings may
pro-
by State
vided
law.”
railway.
appear
up
previ
on marine
also
parenthesis
doubt
The words in
ously
(4),
Parsons,
intimated
The Robert
(4)
W.
section
impor
pages
33 and
“employer” is
defined.
the term
“any dry 8, 48
was there resolved
the words
in favor
question whether
tant
*3
admiralty jurisdiction
the
marine rail of
over marine
to include a
rail
are intended
dock”
ways
the
in
depending upon
has
in
cases
contract.
In
way.
question
answered
That
the East State Industrial
of State of New
negative
the District Court
Commission
Ship
Corp.,
York
Virginia in Colonna’s
v. Nordenholt
of
S.
ern District
the
and
S. Ct.
(2d)
22 F.
R.
yard Lowe,
A. L.
was
that
Appeals for the Third Cir
it
said
of
award under
state com
Court
Circuit
pensation
Woolley dissenting,
theory
Norton v.
cuit,
in
law not made on the
that
judge
committed,
F.
tort
Elsey) 63
has been
the law
(The
but that
Vesta
Co.
Warren
Coal
advised under
as we are
which such an
is made is read
(2d)
166. So far
award
directly in
part
into and
of
no other decision
becomes
the contract
there has been
of
court
employee.
of
be
between
except
decision
the
point,
the
pur
the Lowe And the
opinion
in
same is
of
made
true
an award
low in this case.
recovery
theory
suant to
proceeds
consideration,
the
act under
the
Case
*
**
tort; and,
sphere
designed
sought for maritime
“within its
there
of
among
accomplish
general purpose
cases
to
citing
others the
the same
after
Rohde, 257
the
Laws of the
Ship Co.
Workmen’s
Smith-Porter
Grant
321, 25
Benson,
22, 40,
states.”
Crowell
S.
S. Ct.
L.
S.U.
Indemnity
Un
ques
Millers’
52 Ct.
598. The
R.
59, 46 Ct.
Braud,
270 U.
tion whether
a maritime tort
over
derwriters v.
proposi
support
in
the
70 L. Ed.
of
could be asserted under the
may
states,
exclusively
valid
compensation laws
laws of the
in
tion that state
existed
in
even in cases
provide
important
de
ly
admiralty,
exclusive relief
was an
one when the
torts,
applica
volving
Rohde,
the
cisions were rendered in
maritime
necessarily
Braud,
work
local
other similar
referred to in
law does
eases
any
Lowe,
fea
Shipyard
supra;
to
prejudice
characteristic
Co.
“material
Colonna’s
law,”
opin
general
passage
importance
maritime
since
aet
ture of
rail
that,
and the
the vessel
question
largely disappeared.
“since
of that
has
held
ion
way
then
were
both
recovery
she was drawn
passage,
Before
to
sustained
high land, and the
longshoremen
harbor workers could be
nonmari
tort was
conditions,
under
pas
Since its
for maritime torts.
rather
Virginia Compensation Act
time,” the
of in
sage,
is awarded in ease
applica
exclusively
federal aet was
than
jury regardless
negligence
fault
Elsey the
case of the Warren
In the
ble.
employer, employee,
servant, or
as
fellow
con
insisting
a strict
majority opinion,
adopt
com
sumed risk.
dock,”
“dry
holds that
of the term
struction
after it had un
of its own
until
impute to
speculation, to
be mere
would
it
1922 to
successfully attempted in 1917 and
something
Congress an intention “to include
state
under
authorize
Notwithstanding
say it
included.”
it did
provision
laws, as
the ancient
well
agree
decisions,
obliged to
we feel
two
(1
73),
Judiciary
Stat.
Act
the later
dissenting opinion
ease
in
to
right
suitors,”
“saving
to
to
addition
adopt
Woolley,
to
a more liberal
Judge
juris
admiralty
maritime
to invoke the
correctly
phrase, as he
interpretation of the
remedy,
diction,
right
common law
“the
of a
“any
it,
dry dock.”
quotes
competent
give
to
law is
common
where the
1922 were both
acts of 1917 and
it.” The
Congress to
power
within the
It was
to be unconstitu
Court
employees working on marine rail
extend to
delegate
undertook
tional
right
ways
the same
and,
states,
in vio
to the
power
employ
course of their
in the
jury received
Constitution, to
3, 2, of the
lation
article
admittedly
provided for
em
ment
it
of federal courts
power
with the
graven dry interfere
working on
ployees
maritime
within the
cases
Steamship Indeed,
North Pacific
docks.
(40
Stat.
jurisdiction;
that of
Brothers,
249 U.
S. Ct.
v. Hall
Co.
Stewart, 253
Ice Co. v.
Knickerbocker
in a
221, 63 L. Ed.
438, 64 L. Ed.
A. L.
dry dock,
shipyard
to as a
was referred
of 1922
Stat. 634
US
1145; and that
[28
of the service was
said that the nature
it was
Washington
v. W. C.
(3), 371])
§§41
were made while
CA
whether
the same
219, 44 Ct.
Dawson &
afloat,
dry dock, or hauled
or in
York v. Nordenholt
New
opinion
the sion of State of
In
a and a thereon sometimes dock, is Shipyard v. a maritime Colonna’s tort. dry doek, Pa to be in and while in North said F.(2d) 843; Aus Lowe 22 Giske v. Brothers, 119, Hall 249 S. Co. v. cific S. (Wash. Super. Ct.) A. M. C. 1200. 1931 trem 222, 510, L. 221, 63 Ed. Justice Pit 39 Ct. S. seem to mark the first contention These cases dry dock, page 123 ney a first on with called it railway navigable waters. a marine is inaccuracy by quotation indicated conscious Parsons, 191 decisions The Robert W. any marks, it is not nevertheless a dock of 8, 73, 17, 48 Ed. and North 24 L. S. S. Ct. U. According and care to the dictionaries sort. Bros., 119, v. Hall 249 U. S. S. Co. S. Pacific literature, recep a is dock water for ful only go 221, 63 L. Ed. to S. Ct. ship, usually adjacent to wharves tion a point that a a launched contract to by also extension are which an term is whether she be ship a maritime contract spoken of as Webster’s International docks. They nothing touching- or not. ruled afloat City Lecraw, 17 Dictionary; of Boston v. working a injuries. carpenter A under such ship page at 15 L. Ed. How. 118. stevedore, like a seaman or if up water, when she enters and ties docks jured the wharf or on other land must on wet dock fitted the wharf. The is with to sought have redress under the state laws. keep gates the water in to and vessel goes dry when tide afloat out. A dock is tried, Congress unavailingly, first .to gates keep to out after fitted the water bring compensa workers under harbor state receded has the tide has or been water laws, injuried although navigable on away ship may so pumped that the be worked injuries because on The effort failed waters. dry it. A is sub within dock on navigable belong admiralty. waters to Wash merged reception ship for the Co., 264 ington W. Dawson & S. v. U. by ship is pumping which raised Ed. L. 646. But ship In all of floats it lifted. of the court state decisions laws several They navigable in fair floats out. are sense navigable allowed effect on when been waters railway The marine waters. old injurious harmony to and uniform ancient one Greek civilization. There an ity of maritime Millers’ law. Underwriters A Braud, across the Isthmus of Corinth. modem L. 46 S. Ct. (D. one is described in The Professor Morse 470; Rohde, Ed. Grant Smith-Porter Co. v. 469, C.) where an its sub 42 S. Ct. 66 L. 257 U. S. Ed. merged end was held nonmaritime. one No To resulting A. L. R. resolve the un 1008. recently certainty contended that land end was the present Long until navigable was one aim of Act, Injuries persons waters. on ves Harborworkers’ Its shoremen’s dry graven floating coverage dock whether or sels extends section admiralty jurisdiction “disability are to be in be or only held death results [which] navigable navigable waters. Gonsalves from an any Co., (including Dry Dock waters of United States Morse disability 228; Dry dry dock) for the 69 L. Ed. Butler Robins compensation 235; through Co., 147 N. E. Dock workmen’s 240 N. Y. may not be Cases, proceedings Brandeis’ O’Hara’s and Mass. indicates, not an N. law.” The last clause In citation E. the last Chief State acts, but compensation Rugg dry state Justice dock is effort restrict said: “Whether Dry 1157; every (N. S.) Morse Gonsalves v. jurisdiction that to so divide or fed a state Dock 45 S. Ct. may either will fall under does the clause State Industrial Commission But eral act. Corp., State of York v. will have New Nordenholt the federal act not mean that page laws U. at state greater scope state Grant Smith-Porter nonexistent. That are narrow or Rohde, 42 Ct. page act will Co. at no Florida bring if it If act injury within the federal A. R. ship Massachusetts. on a side track of marine New York or would be in cleavage definite, the water is uniform line feet from within think a I conforming is, any down, to which he carried point laid to be she was intended legal drawn. is no to be familiar there distinction previously occurring wit, construction An extension injuries, to railways shipyards should come marine would waters navigable at.least pow occurring land should question raise a serious constitutional act and federal Dry by-giving docks er which be avoided the words can dealt with under state laws. be plain By including to avoid dry meaning. were mentioned used their that are “any navigable the decisions waters correctness dock” doubt of the naviga dry they places fairly included though sometimes that can be ship waters; in and out waters, floats held to ble places into and out of in wa of them. float say did not did not mean ter. act is that the federal noted It is to be leg railways shipyards. inWhen sort, law of the elective not a sup islating as the maritime services and contracting par consent *6 plies give that should rise to a lien on part of their contract. Under ties becomes they ma desired include the services of a is due optional acts such railway along rine employer agreed pay it. because similar, they used in their both terms Davis, Inc., Ford, Bacon & v. Volentine proper meanings. well-understood and employment A.) F.(2d) 800. If USCA 972. If in this §§ obligations be a maritime injuries could have covered to harbor work irrespec admiralty enforced therefore be occurring ers on land, they I think intention ripens place tive ally Injuries did not. happening about obligation to North Pa pay. the contractual ship on permanently dry Bros., Hall cific S. Co. v. under the law of the land and are con Ed. 510. But the federal trolled this compulsory Congress. act of (33 901), plainly section 4 USCA applying independently compulsory, employer employee. or And of either consent operates the act expressly displaces rights who because of the parties of third PUEBLO DE TAOS et ARCHULETA al. damages, claims for whether at death have VECHTEN, (VAN SAME et v. ANAYA al. admiralty. Section 5 law in Intervener). power 905). It is an exeition of in mari sphere police like the power time on land. Nos. authority in its over the sea Appeals, Circuit Court of Tenth Circuit. cannot aiithority intrude April 10, 1933. any greater proprie states over the land with ty than the states can intrude the sea. reasoning avails keep state com applying from statutes to maritime prevent application avails inju statute to occurrence, ries of their on land. regardless nature occurred, seaman, in which whether as ship’s carpenter, always stevedore or boundary jurisdiction. served to mark Transport Imbrovek, Atlantic v.Co. 51 L. R.