303 Mass. 531 | Mass. | 1939
The essential facts are agreed. The plaintiff’s intestate was employed as a stevedore by the defend
The Federal statute under which the action was brought is U. S. C. (1934 ed.) Title 46, § 688, which provides that “in case of the death of any seaman as a result of any such personal injury [i.e. in the course of his employment] the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” The statute was put into that form by amendment contained in the merchant marine act of June 5, 1920, c. 250, § 33, 41 U. S. Sts. at Large, 1007. The provision as' to “jurisdiction” does not exclude the jurisdiction of State courts. Bainbridge v. Merchants & Miners Transportation Co. 287 U. S. 278.
The defence is, that having secured by insurance payment of compensation to its employees under the Federal longshoremen’s and harbor workers’ compensation act of March 4, 1927, c. 509, 44 U. S. Sts. at Large, 1424, U. S. C. (1934 ed.) Title 33, §§ 901-950, the defendant was relieved of other liability. The judge ordered a verdict for the defendant, and the plaintiff alleged exceptions.
The longshoremen’s and harbor workers’ compensa
Then follows in the act a special limitation upon compensation under that act, upon which this case turns. It is as follows: “No compensation shall be payable 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 eighteen tons net ...” U. S. C. (1934 ed.) Title 33, § 903 (a). A person described in that limitation is not within the word “employee” as used in the act. U. S. C. (1934 ed.) Title 33, § 902 (3).
The plaintiff contends that the plaintiff’s intestate was a
It is true that a stevedore is held to be a “seaman” within the section of the merchant marine act under which this action is brought, on the ground that loading and unloading the vessel constituted a service formerly performed by the crew, and liability to a person under that act for an injury in the course of that service ought not to depend upon the accident of his being employed by the ship or by another. International Stevedoring Co. v. Haverty, 272 U. S. 50. Buzynski v. Luckenbach Steamship Co. Inc. 277 U. S. 226. Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 145, 146. Jamison v. Encarnacion, 281 U. S. 635, 639. Uravic v. F. Jarka Co. Inc. 282 U. S. 234. Warner v. Goltra, 293 U. S. 155, 156. Puget Sound Stevedoring Co. v. State Tax Commission, 302 U. S. 90, 92. Baltimore & Ohio Railroad v. Zahrobsky, 68 Fed. (2d) 454.
But though a stevedore is a “seaman” within that act, it does not follow that he is a “member of a crew” of a “vessel” and consequently excluded from the longshoremen’s and harbor workers’ compensation act. In Nogueira v. New York, New Haven & Hartford Railroad, 281 U. S. 128, 136, Hughes, C.J., said, “It appears that the bill [which became the longshoremen’s and harbor workers’ compensation act] originally excluded a master or members of a crew of a vessel, but was amended so as to extend to them the benefits of compensation (House Rep. No. 1767, 69th Cong., 2d sess.). As these seamen preferred to remain outside of the provisions of the bill, they were finally excluded and the bill was passed with the exceptions above-quoted. (Cong. Rec., 69th Cong., 2d. sess., vol. 68, pt. 5, p. 5908.) There was no exclusion of stevedores or of those sustaining injuries upon navigable waters in loading or unloading a vessel unless it was under eighteen tons net.” See also Warner v. Goltra, 293 U. S. 155, 160. In Uravic v. F. Jarka Co. Inc. 282 U. S. 234, 239, Holmes, J., said,
Exceptions overruled.