*2 Gates, Bogle, Cassius E. Lawrence Seattle, Wash., Dobrin, all of Edward G. Wallace, Francisco, M. of San James Cal., appellants. (cid:127) Atty., Dennis, Charles U. S. Seat- J. ' Wash., Malm, tle, Asst. U. and Oliver Tacoma, Wash., appellee. Atty., S. MATHEWS, DENMAN, Before HEALY, Judges. Circuit HEALY, Judge. Circuit emplоyer and its Appellants, insurance carrier, brought filing a suit so-called invoking 21(b) complaint bill of the. Harbor Workers’ ánd Act, Compensation 921(b), 33 U.S.C.A. § an award of com- to set aside (cid:127) appeal from a decree missioner. following a motion to dismissal dismiss appellants’ bill. addressed claim- the act in that workman pleaded disclose has suffered The facts a stevedore no economic ant, employed entitling compen- loss him to Hugo, was In salary however, sation. monthly question, The сontrolling $325. foreman at at work would December, seem be while he whether the tongs attached the steamship, pair of evi- supported board *3 log from dence. Stevedoring Northwestern cable became unfastened Co. v to a Marshаll, neck, Cir., and shoulder 9 41 him his F.2d 28. and struck he was chest, causing injury from abundantly the The record sustains of fourteen period wholly disabled for findings. that There is no doubt but claim the accident the At the lime of months. earning capacity ability and to ant’s his supervise the to -of claimant duties seriously permanently work have been and loading' cargo. longshoremen of work impaired. kept his He has been on at he was such that his neck injury to The shows, wages, former as the evidence only, he suffers whisper and cаn now long sympathe because of service the upon exertion. of breath from shortness employer. tic his attitude of was sub impair seriously claim- These disabilities stantially he would shown that be unable longshore- of efficiency as a foremаn ant’s required in general to do the work steve vessels, rea- loading of in the men doring, heavy or strenuous manual orally him to impossible for is son it that any beyond labor of sort would seem to be because, work, in order to direct powers. his There is еvidence that duties, go must about he discharge his employer has no real need for a man to up and down climb being vessel loaded perform by the duties carried on the claim decks. to leading the various ladders July, 1937, ant after but that it was necеs 1, resumed February claimant 1937 On sary replace to him as foreman and his employer at the the same work with his subsequent position recogni was created in necessary found wages, was former but it tion of faithful service. him in the to assist employ another man to Disability 2 (10), is defined 33 U. § The assistant his duties. performance of “incapacity 902(10), S.C.A. because § per wage of average paid an $150 was wages of to earn which the employer July the following month. employee receiving at the timе of in- was duties be- to other claimant transferred jury employ- in the or other same ability perform to his of his lessened cause permanent partial ment.” Provision for made a sort that time work. He was at disability 8(c) is (21), contained 33 longshoremen, at the of superintendent of 908(c) (21), U.S.C.A. as follows: “In wage-earning ITis as before. wages same all other disability cases in class of this market open labor capacity in the compensation per shall be centum 66^3 per from to have deсreased $75 found average difference between his per week. week to $34.62 weekly wages and his wage-earning ca- determined pacity thereafter employment the same compensation claimant was entitled that otherwisе, payable during or the continu- of two-thirds the differ- in the amount * * partial disability . ance of such wages and his ence between his former language (e) of subdivision capacity, limited present earning however section, relating temporary pаrtial same per payable maximum week to the $25 disability, respects is all material was for the act. The award com- under as that (c) (21). same of subdivision rate from pensation at the maximum capacity Earning is the ultimate injury to the date of dаte of Wages to be determined. received fact 22, 1937'—and there- award —November disability, earning while evidence of after disability. during the continuance of after conclusive are not either one capacity, employer paid the carrier had Compare way the other. Candado (cid:127) compensation rate from the at that time Locke, Cir., 2 Corp. 63 F. 2, August 1937 and the accident earn, Ability to rather wages 2d than 802. pay- allowed because of these credit was normаlly received, is actually test. ments. Indemnity Accident & Co. v. Hartford 163, 420; App.D.C. Appellants urge Hugo Hoage, 66 was not Steamship Norton, Co. v. light an in the 3 entitled to award of the Luckenbach Cir., compensa paid has F.2d Under state wage he been the оld fact acts, also, frequently resuming has been held all times since work. it The tion award, said, purposes injured workman violates the compensation earning ca no impaired award of he has where pacity necessarily or diminished sufferеd no wages lost decrease in because injury, the an work at Congress reason of his return to construction must War wage adopted. Capital Roller v. be deemed theretofore earned. to have Trac- ren, 168; Hof, Postal Tele tion A. Co. v. Vt. 873; graph Lewallen, Accident 43 Industrial Marlin Cable Co. v. California, 467; Commission of Cal. 6; Bros., Kan. Gailey Mahony Co., P.2d Marshall v. v. Peet Andrew F. Cir., 431; 157 P. Kennebec F.2d A Clark v. number of New York Journal Co., High cases are support Me. 113 A. cited which are said to Co., Ky. 197, Liberty Coke this Coal & rule. Four of them were decided Schneider, prior Workmen’s passage S.W. to the of the federal act on *4 Compensation Law, (2d Ed.), p. 4, 2Vol. March 1927. 1441. these, The first Humphreys of v. Chev Co., 1920, rolet 4, Motor App.Div. 191 181 the Longshoremen’s Under the Act 3, point. N.Y.S. is not in mеre compensation to is barred unless court ly observed, by way dictum, of if an year one after the claim filed within employee, injury, after continues earn to injury, period or within the same after before, then, the same wages as and at his voluntary payment compensa the last of request, job own is moved a to different 13(a), 913(a). tion. § § wage, at a less he is not entitled to com authority to the pensation. 1921, Co., v. Decorative year review is limited to after likewise one Jordan 522, 634, 230 N.Y. 130 sup N.E. dоes not rejection the .a claim or the last after port appellant’s contention. It was there payment 22, compensation. 33 U.S. § held only that a worker earning whose If is construed in the C.A. 922. tihe act capacity impaired by has not bеen the may purpose manner for contended its is not entitled to employer’s continuing defeated the for wilfully Gillespie where he remains idle. space year pay wages the of a to to a Co., 1925, v. App. McClintic-Marshall 215 partially еmployee disabled at the former 734, 88, Div. 212 N.Y.S. also involved a Steamship rate. Nor Luckenbach Co. v. case only of wilful refusal to work. The ton, supra. Compare E. O’Esau v. W. prior New York in case to 1927 which Co., 385, App.Div. Bliss 188 N.Y.S. 177 way support position ap tеnds the us, to the 203. In the situation before claim pellants is Pottle William Atkinson v. H. Any change ant has no assured future. Co., 1925, 739, App.Div. 215 212 N.Y.S. may separate from in him circumstances 902, Supreme in -the Court of New employment precarious changes in so — York, Division, Apрellate rendered a management, altered business conditions reversing memorandum and decision re economy, patience suggesting the for need mitting ground an “on the award the profitless If worn thin under a burden. period part during is made for rejеcted, award a present it difficult claim is employed, and for of which claimant was may remedy injured a man discover to pay.” regular which he his That received hereafter. case, sketchy and truncated as decision a award for further is attacked is, fairly be to have established cannot said reason not to have been said heretofore of the a known settled construction analogous considered in the federal cases. compare for. And charaсter contended provisions 8(c) (e) of § Locke, Corp. Stevedoring Candado v. Longshoremen’s were taken from Act § supra, page 803. at Compensation Law 15 of the Workmen’s Conceding the later New York York, Consol.Laws, c. of the state Nеw rule,1 they have laid down such decisions Locke, Corp. v. Candado inapposite purpose of deter- for the supra. is claimed that at the time of It historically Congressional in- mining 'the Longshoremen’s Act the enactment of the tent. York statute provisions of New these company in The insurance the instance known construction to had a and settled complain has no reason employee us effect that an is entitled to before 831, Seely Son, 237 N.Y.S. Beach Div. See Sullivan v. G. B. App.Div. Co., 1931,
1929,
App.Div. 629,
377,
Ins.
Travelers’
N.Y.S.
4; Nagy
55,
1,
Co.,
621,
252 N.Y.S.
Achvol
affirmed 252 N.Y.
170 N.E.
App.Div. 903,
App.
Co., 1929,
N.Y.S. 961.
Cruikshank
Griffin v.
may,
he
That
award,
employer,
court
in a suit
under
for
and as
21(b),
injunction, mandatory
his own
an
in
issue
key
situation
carries the
otherwise, does
make the court an
pocket.
not
еquity
equity
an
court
the suit
suit.
their
Appellants
have filed
should
Injunctions may
admiralty
in
issued
as
admiralty
side
bill
libel on the
as a
Benson,
well as
equity.
in
Crowell v.
Benson, 285 U.
district court. Crowell
supra,
page
L.Ed. 598.
S.
By providing
for injunction
merits
We have considered
proceеdings, Congress
“contemplated a
below,
if
as
we
guidance of the court
equity”
suit as4
(Id.,
page
in
an erro
law
reversing
a case
page
S.Ct.
598),
but
passing
instruction,
nevertheless
neous
contemplate
did
equity.
suit
to arise
questions
certain
of evidence
contemplate
did
admiralty.
suit
remanded
The cause is
new trial.
Appellants’ libel—called a bill of com-
bill as a
treat
with instructions
libel,
substance,
plaint alleges,
that,
after a
—
exception
dismiss as an
motion to
pursuant
hearing
to the
Sup.Ct.
sufficiency (Admiralty Rule
to its
Compensation Act,5
and Harbor Workers’
723),
following
section
U.S.C.A.
appellee Marshall,
Deputy
Commission-
dismissal.
enter a decree of
er,
compensa-
made
of fact and a
*5
vacated,
whereby
decrеe
with instructions
compensation,
tion order
to be
paid
admiralty
by appellants,
appel-
docket and decree
was awarded to
to transfer
Hugo
disability
lee
for claimed
found to
a dismissal.
resulted from an accidental
emрloyed
by appel-
sustained
him while
MATHEWS,
(Concur-
Judge
Circuit
lant Twin Harbor Stevedoring
Tug&
ring).
Company
employment upon
in maritime
navigable waters of the United States.
brought by appellants,
This suit was
Tug
states,
effect,
Twin Harbor
&
Com-
The libel
in
pany
Deputy
and Fireman’s Fund Insurance Com-
findings
Commissioner’s
are not
pany, against appellees,
supported
A.
by evidence,
that,
Mar-
therefore,
William
shall,
Deputy
Commissioner
the the
order is not in accord-
Employees’ Compensation
United States
This, however,
ancе with law.
is a mere
Commission,
Hugo,
conclusion,
and Otto
the Dis-
and not a correct one. A certi-
trict
Court
the United States for the
copy
fied
transcript
and a
Washington,
Western District of
under of the evidence taken
the hearing
21(b)
and Harbor
were, by
filеd in
the District Court
Compensation
Workers’
reference,
Act.1
part
made
libel.
amply supports
evidence
the findings.
court,
The suit was
brought
Appellee
excepted6 to the
Marshall
wrong
but
side of the court.
ground,
others,
among
libel on the
brought
еquity.
was
It should have
the facts therein stated were
sufficient
brought
admiralty.
been
Long
appellants
to entitle
relief. The
shoremen’s and Harbor Workers’ Com
founded,
exception
but,
well
as a court
pensation
part
Act
the maritime law
equity,
Cоurt
District
was not
the United
jurisdiction
States. The
empowered
exception.
sustain the
At-
by 21(b)
jurisdic
conferred
is admiralty
so,
tempting to do
it erred.
Benson,
tion. Crowell v.
598;2
36-65,
52 S.Ct.
resc
vacated,
should
The decree
C
ent Wharf & Warehouse
Co.
Pills
with
case should
remanded
directions
bury, Cir.,
See, also,
93 F.2d
admiralty
to transfer
docket7
Pillsbury,
Alaska Packers
Ass’n
admiralty,
and to
a decree in
enter
sustain
174, 175,
U.S.