This is a personal injury action under the Oregon Employers’ Liability Act in which the court set aside a *4 verdict for the plaintiff and entered judgment for the defendant notwithstanding the verdict. The plaintiff has appealed. The action of the trial court was based upon the view that plaintiff’s sole remedy is under the Longshoremen’s and Harbor Workers’ Compensation Act (33 USC, Title 33, §§ 901 et seq.). This ruling presents the only question on this appeal.
The defendant is an Oregon corporation whieh operates a sand and gravel business on the Willamette River in Portland. It conducts dredging operations with the use of a dredge, barges and power-driven machinery in a portion of the river referred to in the testimony as a lagoon — a small bay or inlet roughly rectangular in shape, the entrance to whieh from the main body of the river is at the north. Otherwise, it is surrounded by land — Ross Island on the west, Hard Tack Island on the east, and a strip of land on the south connecting the two.
On the day that plaintiff was injured, March 23, 1955, and for some eight days prior thereto, he was employed by the defendant as an “oiler.” His general duties were on a dredge anchored to the shore, which was used to scoop out sand and gravel from the bottom of the lagoon and dump it on a barge. He looked after the machinery of the dredge and operated a winch to move the barge into position. If there was a breakdown in the machinery it was his duty to repair it. The barge, when filled, was moved to the crusher, whieh was located inside of the lagoon, and, after the gravel was crushed, it was carried by means of a conveyor belt to the defendant’s plant on the right bank of the river. He was injured, however, while performing a different type of work. He was ordered to assist in transferring a large gravel bin or hopper, used for loading sand and gravel into trucks, from one barge to *5 another. The hopper was so constructed that trucks could be driven under it to receive their loads. A power-driven crane on shore was employed to pick up the hopper and move it. After the hopper was moved and stowed it became the plaintiff’s job to go to the top of the hopper by means of a ladder nailed to the hopper and loosen a cable used in the moving operation. He had climbed high enough to reach the top rung of the ladder with his hand when the ladder gave way, and he fell a distance of about eight or ten feet, landing on his back on hard-packed sand in the barge and receiving serious injuries. The ladder fell upon him. The evidence shows that the ladder, which was constructed of heavy timbers, was fastened to the hopper only by nails which had been driven into wood that was rotten. No bolts or chains were used to make it secure, although it was practicable to use them. There seems to be no question about the negligence of the defendant or its violation of the provisions of the Employers’ Liability Act.
In 1927 Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act in order to provide compensation irrespective of fault for injury or death in the case of employees of employers “any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” USC, Title 33, §902 (4). Section 903 (a) provides in part:
“(a) Compensation shall be payable under this chapter in respect- of disability or death of an employee, but 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.”
*6 Liability of an employer as prescribed by the Act is made exclusive, but, if any employer fails to secure payment of compensation as required by the Act, an injured employee, or his legal representative in case death results from the injury, is given an election to claim compensation or to maintain an action at law or in admiralty for damages, in which case the defenses of negligence of a fellow servant, assumption of risk, and contributory negligence are not available to the employer. § 905
The defendant had secured payment of compensation as required by the federal Act, § 932, but had exercised its election not to be subject to the Workmen’s Compensation Law of this state (ORS 656.022).
It is contended first, on the part of the plaintiff, that the injury did not occur upon “navigable waters of the United States,” but as to this we think that there can be little doubt. The body of water upon which the injury occurred is a portion of the Willamette River, which is coneededly a navigable stream.
Willamette Iron Bridge Co. v. Hatch,
*7
The test for determining what are navigable waters of the United States was thus stated by Mr. Justice Field in The Daniel Ball,
“* * * The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”
See, also,
Crowell v. Benson,
The evidence discloses that the body of water in question fully meets this test. It is navigable in fact and therefore in law, and forms “by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The fact that the defendant owns the land partially surrounding the lagoon does not militate against this conclusion.
United States v. Chicago, M & St. P. & P. R. Co., 312
US 592, 596-597, 61 St Ct 772, 85 L ed 1064. The government has drawn harbor lines around the land, but whether water is inside or outside harbor lines is not a test of navigability. See
Port of Portland v. Reeder,
supra.
People v. The Commissioners of Land Office,
We are brought thus to the question of the application to this case of the Longshoremen’s and Harbor Workers’ Act of 1927. This is a question of federal law and the decisions of the Supreme Court of the United States are, of course, controlling.
Ten years before the Longshoremen’s and Harbor Workers’ Act was passed the Supreme Court reversed a judgment of the New York Court of Appeals which
*9
sustained an award of compensation under the New York Compensation Law to the widow and children of one Jensen, who was accidentally killed while working as a stevedore unloading cargo from a vessel berthed in the North River, navigable waters of the United States.
Southern Pacific Co. v. Jensen,
This was a five to four decision, Justices Holmes and Pitney wrote dissenting opinions, both of which were concurred in by Justices Brandéis and Clarke. There has been considerable dissatisfaction with it both among commentators and in the Supreme Court itself, but it has never been overruled, and it was cited as recently as 1958 as controlling authority.
Pennsylvania Railroad Co. v. O’Rourke,
Following the Jensen case Congress twice amended the Judiciary Act in endeavors to secure to maritime workers the benefits of state compensation laws.
1
Both amendments were held unconstitutional on the authority of the Jensen case.
Knickerbocker Ice Co. v. Stewart,
Against this background, Congress enacted the Longshoremen’s and Harbor Workers’ Compensation Act. A great deal of litigation followed in which the question involved was whether, under the circumstances of the particular ease, application of a state compensation law interfered “with the proper harmony and uniformity of” maritime law, the test laid down in the Jensen case. This history is reviewed in
Davis v. Department of Labor,
“It is settled by our decisions that where the employment, although maritime in character, pertains to local matters, having only an incidental relation to navigation and commerce, the rights, obligations and liabilities of the parties, as between themselves, may be regulated by local rules which do not work material prejudice to the characteristic features of the general maritime law or interfere with its uniformity. Grant Smith-Porter Co. v. Rohde,257 U.S. 469 ; Millers’ Indemnity Underwriters v. Braud,270 U.S. 59 ; Alaska Packers Association v. Industrial Accident Commission,276 U.S. 467 .”
Otherwise, the federal Act afforded the exclusive remedy, as provided in USC § 903. In many instances the problem of where to draw the line was extremely difficult, and fine distinctions were indulged so that it became well-nigh impossible in some instances to predict on which side of the line a particular case would fall. Two of the decisions of this court during this period are illustrative. In
Mark v. Portland Gravel Co.,
In 1941 the Supreme Court of the United States decided the case of
Parker v. Motor Boat Sales,
As stated by Professor Larson, op cit 413:
“This decision by the highest court appeared to scrap the ‘local’ exception to maritime employment, for the relation to navigation and commerce of a casual and unauthorized ride in a tiny outboard motor boat might seem to approach the vanishing-point.”
See, also, Western Boat Bldg. Co. v. O’Leary, 198 F2d 409, 414 (9th Cir 1952).
Davis v. Department of Labor, supra, however, decided in the following year, cast a different light on the matter, at least with respect to the application of state compensation laws to maritime injuries. The question there was upon the application of the compensation law of the state of Washington to the case of an injury resulting in death sustained by Davis, a structural iron worker whose employer was engaged in dismantling an abandoned drawbridge which spanned the Snohomish River, a navigable stream in the state of Washington. Davis was on a barge to which steel from the bridge had been lowered for carriage to a place of storage a short distance away. He was engaged in cutting pieces of steel into proper lengths for loading, and fell or was knocked into the stream and drowned. The Washington commission denied compensation and its ruling was affirmed by the Supreme Court of the state on the authority of Jensen and other United States Supreme Court decisions.
Without overruling the Jensen case the Supreme Court, in an opinion by Mr. Justice Black, held that *14 the decedent’s widow could validly be compensated under the Washington law. The court, after reviewing the confusion in the decisions following in the wake of Jensen and the difficulties encountered by employer and employees upon whom pressed “the horns of the jurisdictional dilemma” said:
“Harbor workers and longshoremen employed ‘in whole or in part upon the navigable waters’ are clearly protected by this federal act; but employees such as decedent here, occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.”317 US 253 .
The court continued:
“There is, in the light of the eases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.
“Faced with this factual problem we must give great — indeed, presumptive — weight to the conclusions 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, 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. It was under these circumstances that we sustained the *15 Commissioner’s findings in Parker v. Motor Boat Sales, supra.”317 US 256 -257.
In the Davis case the court did not have the benefit of findings of any agency, either federal or state. Indeed, four Washington state tribunals had rejected the claim. Nevertheless, the court, relying on the presumption in favor of constitutionality of the state statute, reversed the judgment of the Washington Supreme Court.
The radical departure from precedent in this decision is indicated when it is borne in mind that, as the Supreme Court of Washington said in its opinion (12 Wash2d 349,
The scope and impact of the
Davis
decision became more apparent in the light of the decisions in two cases following it which originated in state courts. In
Moores’s Case,
323 Mass 162,
The other state case referred to was
Baskin v. Industrial Accident Commission,
89 Cal App2d 632,
Chief Justice Qua, who wrote the opinion for the court in
Moores’s Case,
described the “twilight zone” as “an area of doubt within which the two acts overlap and the injured workman may recover under either of them.” He found support for that view in the concurring opinion of Mr. Justice Frankfurter in the
Davis
case, who said “Theoretic illogic is inevitable so long as the employee in a situation like the present is permitted to recover either under the federal act * * * or under a state statute.”
We need not pursue this line of inquiry further. It is pertinent only insofar as it may throw a light on one of the questions in this ease, namely, does the “twilight zone” doctrine apply where the injured workman is not seeking redress under any compensation statute but through the medium of an action at law? We think that it does not.
In enacting the Longshoremen’s and Harbor Workers’ Compensation Act “Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject-matter.”
Continental Casualty Co. v. Lawson,
64 F2d 802, 805 (5th Cir 1933), quoted in
De Bardeleben Coal Corp. v. Henderson,
supra;
Travelers Ins. Co. v. McManigal,
139 F2d 949 (4th Cir 1944). The preoccupation of Congress was with the compensation of injured workmen regardless of fault. As Chief Justice Hughes said in the Nogueira case,
“When the bill which became the Longshoremen’s and Harbor Workers’ Compensation Act was pending in Congress, the importance of the policy of compensation acts, and their advantages in providing for appropriate compensation in the case of injury or death of employees without regard to the fault of the employer, were distinctly recognized.”
See to the same effect
Davis v. Department of Labor,
supra,
In our view, the “twilight zone” was a contrivance— a “quasi-legislative decision,” Judge Hutcheson called it in the
De Bardeleben
case — for discouraging jurisdictional disputes as between state and federal compensation laws and not as between the Federal Compensation Law and the right to bring an action for damages under state law. See Gilmore and Black, op cit §6-52; 2 Larson, "Workmen’s Compensation Law, § 89.24. It was not recognized in
Pennsylvania Railroad Co. v. O’Rourke,
supra, which held that a railroad brakeman, injured when unloading box cars from a car float on navigable waters, could not maintain an action under the Federal Employers’ Liability Act, but that his sole remedy was under the Longshoremen’s and Harbor Workers’ Act. See
Of the numerous reported decisions which have followed the
Davis
case we have been referred to none where the doctrine was invoked to include a choice between an action for damages under state law and federal compensation except
Chappell v. C. D. Johnson Lumber Corp.,
See, also,
Scrinko v. Reading Co.,
Based on a suggestion in a scholarly law review article, 2 it is urged by counsel for the plaintiff that, since the Oregon Workmen’s Compensation Act provides for an action against an employer who elects not to come under the Act in which the common-law defenses are not available to the defendant, the Act “would apply in toto.” That is to say, that in a case such as this where the employer is not under the Act, the provision for an action at law would operate as a substitute for the compensation provision of the Act. We are not persuaded that such a course would accord with the intent of Congress. Nor do we find anything in the Davis case which supports it. Bather, we think that we should take for granted that the Davis opinion was intended to be limited to the kind of facts it dealt with and to the class of cases out of which emerged the “jurisdictional dilemma,” which it was hoped would be dissipated and vanish in the “twilight zone.” If, perhaps, a logical argument could be made for the suggestion, nevertheless, like Chief Justice Qua, we “recognize the futility of attempting to reason logically about ‘illogic’” (Moores’s Case, 323 Mass 167), and will not further attempt to illuminate so dark a subject.
*21 We think this a ease to which the Longshoremen’s and Harbor Workers’ Act clearly applies, and that compensation under it is the plaintiff’s sole remedy for his injury. He will not have lost this right through delay because, under § 913 (a), (d), the one year’s time allowed for filing a claim will not begin to run until the termination of this action.
In Newport News Shipbuilding & Dry Dock Co. v. O’Hearne, supra, where the court sustained an award under the federal Act for an injury to a welder engaged in the repair of a graving dry dock, Circuit Judge Soper, writing the opinion for the court, said with reference to the decision of that court in Travelers Ins. Co. v. McManigal, 139 F2d 949 (4th Cir 1944):
“* * * In that case we reviewed the decisions in border line cases of a maritime nature and endeavored to show the tendency of the courts, acting in the interest of humanity prior to the passage of the Longshoremen’s Act, to enlarge the jurisdiction of state compensation commissions by developing the ‘local concern’ doctrine so as to enable state commissions to make awards to injured men, and the opposite tendency, since the passage of the federal statutes, to adhere more strictly to the traditional principle that admiralty jurisdiction depends upon the location of the activities involved upon navigable waters * *
Among the cases exemplifying the more recent tendency we call particular attention to
Radcliff Gravel Co. v. Henderson,
138 F2d 549 (5th Cir 1943). The employer in that case was engaged in the same business as the defendant here, namely, the dredging of sand and gravel from the bed of a navigable lake. The case involved the death by drowning of two employees. Their job was trimming the sand and gravel as it was
*22
loaded onto barges to keep it from “forming a pyramid or being cone-shaped.” The contract of employment provided that the employer was to furnish transportation to and from the shore and dredge boat. Several employees were drowned when a small boat, propelled by an outboard motor, in which they were being transported by their employer, capsized. Awards under the federal Act to the dependents of two of them were sustained, and this without reference to the
Davis
case or the “twilight zone.” The case here is even stronger, for, at the time of his injury, the plaintiff was engaged in loading a barge. “A barge is a vessel within the meaning of the Act even when it has no motive power of its own.”
Norton v. Warner Co.,
supra,
*23
The nature of the plaintiff’s regular work, the fact, if it were such, -that it was not maritime, is not controlling. “The statute applies,” said the court in the
O’Rourke
case, “by its own terms, to accidents on navigable waters when the employer has any employees engaged in maritime service.”
The following cases tend to support the conclusion at which we have arrived:
Avondale Marine Ways v. Henderson,
We think that the judgment below was right and it is affirmed.
Notes
The Act of October 6, 1917, added to the savings clause of the Judiciary Act of 1789 the following: “and to claimants the rights and remedies under the workmen’s compensation law of any State.” The Act of June 10, 1922, amended this new matter so as to read "and to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel their rights and remedies under the workmen’s compensation law of any State,” etc. (Italics added.)
“Workmen’s Compensation for Maritime Employees: Obscurity in the Twilight Zone” by Robert E. Rodes, Jr., 68 Harv L Rev 637.