This is а proceeding to set aside an order of the Deputy Commissioner, United States Employees’ Compensation Commission, requiring the complainant Ford as employer, to pay $1,000 into the special fund created by section 44(c) (1) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq.
The facts are briefly and succinctly stated by the Deputy Commissiоner as a result of hearing at which the employer, Ford, was represented by experienced counsel, and no additional evidence has been submitted here.
On July 4,1942 the tanker “S. S. Esso Augusta” was docked in navigable waters at the Recreation Pier in Baltimore City for repairs by the Bethlehem Steel Company which had leased the pier. Ford, the employer, had contracted with the ship to furnish watchman service while the ship was lying at the pier. Bernard Schnur was one of the watchmen so employed by Ford. The deck of the ship as she lay at the pier was 20 feet or more from the surface of the pier. The access to the ship from the pier was furnished by a long wooden ladder which was based on the pier and lashed to the deck gunwale of the ship. It was Schnur’s duty to relieve the watchman on the ship’s deck at 11 p. m. on July 4, 1942. About that time he began to ascend the ladder but when he was almost at the top he slipped and fell therefrom to the concrete dock below. From the injuries thus sustained he died on July 27, 1942. He left no dependents entitled to compensation under the Act but the employer’s insurance carrier voluntarily paid total disability benefits for more than two weeks during the em *99 ploye’s incapacity, and subsequently paid $200 on account of funeral and burial expenses. The ladder giving access from the ship to the pier was the property of the Bethlehem Steel Company and was furnished by it for that purpose as was its customary practice. It also appeared from the testimony taken before the Deputy Com•missioner that the ship’s side was close to the dockside, the distance between the dock and the ship’s side varying from two to three feet.
The Longshoremen’s Act is, of course, a compensation act which is applicable “only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” 33 U.S.C.A. § 903. It also does not apply in the case of a master or member of a crew of any vessel, but it is not contended here that Schnur, the employe, was a master or membеr of the crew of the ship. As the authority of the Deputy Commissioner to make an award in this case was dependent upon the jurisdictional conditions that the injury to the employe must have occurred on navigable waters of the United States, and of such a nature that it could not validly be provided for by state compensation law, the complainants in this case contend that the finding of the existence of the condition that the injury occurred on navigable waters is a jurisdictional fact which must be determined
de novo
by this court and, therefore, the rules which generally prevail in this class of cases that the award made by the Deputy Commissioner will not be set aside if it is based on substantial evidence, should not control. This proposition was еstablished by Crowell v. Benson,
The question to be decided is whether the federal or the state compensation law applies. Maryland has a workmen’s compensation law, Code Md.1939, art. 101, § 1 et seq., which, for this case, differs in effect from the federal law only in that it makes no requirement for a payment by the employer into a special fund, where the deceased employe leaves no dependent, such as is required by the federal act, 33 U.S.C.A. § 944(c) (1). In the instant case the insurance carrier covered the employer’s liability under both the federal and state compensation laws. For the purpose of determining jurisdiction, compensation acts are treated as delictual rather than contractual. Thus the ordinary test between their respective applicabilities is the test of admiralty jurisdiction in tort cases. The familiar general rule for admiralty jurisdiction is that-the place where the tort occurs controls. Thus if the tort occurred on navigable waters the admiralty has jurisdiction, with the possible exceptions that the activities must have been of a maritime nature, and also in that very limitеd class of cases where although the injury occurred on navigable waters, the Supreme Court has held that the state law should be operative because the particular activities were of a purely local nature having no necessary maritime feature. Grant Smith-Porter Ship Co. v. Rohde,
This is one of the so-called “ladder or gangway cases” which in the past have frequently been considered by the courts with respect to the boundary line between federal and state jurisdiction, in both tort am-* compensation cases with some divergence in results. See Robinson on Admiralty, pp. 84-86. What was said by Chief Justice Hughes in The Admiral Peoples,
In that case certiorari was granted by the Supreme Court to settle asserted conflict of decisions on the point. Prior to the decision in that case the rule which had
*100
been very generally but not universally applied was illustrated by the case of The Atna, D.C.,
But since the decision in The Admiral Peoples, supra, all the federal casеs which I have noted have taken the view that the rule furnishing the test as to jurisdiction has now been changed to the effect that the ladder or gangway, furnishing ingress to or egress from the ship, has been regarded as a part of the ship’s equipment and therefore passengers or employes using it for either ingress or egress are considered to be at the time within the admiralty jurisdiсtion.
In The Admiral Peoples case the court was dealing with a libel
in rem
against the ship by a passenger who sustained personal injuries in traversing a gangplank from the vessel to the dock. Plaintiff alleged that the gangplank was defectively constructed or arranged in that there was an insufficient guardrail near the shore end of the gangway and an unobservable step dоwn from the end of the gangway to the dock, in consequence of which the passenger fell from the gangway onto the dock sustaining injuries. In holding that the case was within the admiralty jurisdiction, Chief Justice Hughes said: “The basic fact in the instant case is that the gangplank was a part of the vessel. It was a part of the vessel’s equipment which was placed in position to enаble its passengers to reach the shore. It was no less a part of the vessel because in its extension to the dock it projected over the land. * * * Neither the short distance that she [the plaintiff] fell, nor the fact that she fell on the dock and not in the water, alters the nature of the cause of action which arose from the breach of duty owing to her while she was still on the ship and using its facility for disembarking.” See Minnie v. Port Huron Terminal Co.,
In The Shang Ho, D.C.,
In the very recent case of Brady v. Roosevelt S. S. Co., in the Supreme Court of the United States,
Carroll Stevedoring Co., Inc., v. United States, D.C.Mass.,
The Berwindglen, D.C.,
And in Richards v. Monahan, D.C.Mass.,
In Robinson on Admiralty, pp. 84-86, after reviewing the ladder cases including those just referred to, the author says (note 132 at the bottom of page 86): “Thus, apparently all gangplank injuries fall to the admiralty.”
Counsel for the complainants here seeks to distinguish the instant сase from the recent ladder cases on the ground that in this case it appears the ladder belonged to and was furnished by the Bethlehem Steel Company, the lessee of the dock, and that it does not definitely appear in some of the cases just reviewed that the ladder did not belong to the ship; although it is contended in fact by adverse counsel that in Richards v. Monahan, supra, the ladder was furnished by the dock rather than by the ship. However, I deem this circumstance immaterial as bearing on the test of jurisdiction. No doubt it would be a relevant fact where the suit is against the ship for a tort based on negligence arising from the alleged defects in the ladder or gangway.
In this case the Deputy Commissioner found that the employе had ascended the ladder to a point where he was over the water when he fell from the ladder, and the award made seems to have been influenced importantly by that consideration. Complainants’ counsel contends that the complainants are entitled to a finding of this fact de novo by the court. I think it must be admitted that the testimony on which the Deputy Commissioner made the particular finding affords at the best but a very uncertain basis therefor. But again I regard this circumstance as immaterial under the cases reviewed as affecting the test of jurisdiction.
I am entirely in accord with the rule as now applied as it is simple and easily applied to situations which have heretofore been difficult of decision. And it seems entirely consistent with the real nature of the subject matter. Employes whose duties are on ships and require them to board and leave the ships are engaged in a purely maritime activity. The means of egress to and from the ship must be used by them in the performance of their duties. From time to time many of them have to be on and off the ship. In going to and fro in the performance of thеir duties it is reasonable that they should use and rely upon the safety of the only means of ingress to or egress from the ship as part of the ship’s equipment. And as their work is so essentially maritime in its nature, it is no unreasonable extension of admiralty jurisdiction and no real invasion of common-law rights, to put such employes within the admiralty jurisdiction where they are using this means of access to the ships. See O’Donnell v. Great Lakes Dredge & Dock Co.,
On this question of jurisdiction there is what is perhaps a quite significant paragraph in Davis v. Department of Labor, supra, which is, I believe, the latest case in the Supreme Court dealing with the particular subject. That was another clоse case requiring the court to determine the boundary line between the federal and state compensation acts. The proceeding there was under the state statute and it was upheld by the Supreme Court in reversing the Supreme Court of the State of Washington. The employe there had been a structural steel worker who was drowned in a navigable river whilе working for a construction company engaged in dismantling an abandoned drawbridge which spanned the river. A derrick barge was fastened to. the bridge and another barge was tied to the derrick barge. At the time of the fatal accident the employe was working on the barge from which he fell into the stream where he was drowned. The application of the statе statute was based on the so-called doctrine of purely local conditions not essentially affecting maritime matters. The court considered the possibility of the applicability of the federal compensation act and referring to cases arising thereunder said: “Faced with this factual problem we must give great— indeed, presumptive — weight to the сonclusions of the appropriate federal authorities and to the state statutes themselves. Where there has been a hearing by the federal administrative agency entrusted with broad powers of investigation, fact finding, determination, and award, our task proves easy. There we are aided by the provision of the federal act, 33 U.S.C. § 920, 33 U.S.C.A. § 920, which provides that in proceedings under that act, jurisdiction is to be ‘presumed, in the absence of substantial evidence to the contrary.’ Fact findings of the agency, where supported by the evidence, are made final. Their conclusion that a case falls within the federal jurisdiction is therefore entitled to great weight and will be rejected only in cases of apparent error.” [
A word should be said with regard to the particular procedure in- this case. The defendant filed a motion to dismiss the complaint. One ground assigned is “that there is substantial evidence to support the finding of your defendant that the injury sustained by the employe Bernard Schnur was sustained on navigable waters of the United States.” This point apparently runs counter to the decisiоn in Crowell v. Benson, supra. As the complaint expressly alleges that the accident did not occur on navigable waters and as under Crowell v. Benson that constituted an issue to be decided here on the basis of the testimony de novo, I think technically the motion to dismiss must be and it is as such overruled. At the hearing I understood counsel to agree that if the motion to dismiss is overruled, it should nevertheless be treated as an answer, and so considered the case was submitted for final decision on the record made before the Deputy Commissioner, neither party desiring to offer further evidence.
For these reasons I have concluded that the complaint should be dismissed on the merits on final decision and it is now so ordered, with taxable court costs to be paid by the complainants.