No. 3410.
The question in this ease is whether the Longshoremen’s and Harbor Workers’' Compensation Act of March 4, 1927, e. 509, 44 Stat. 1424, 33 USCA §§ 901 to 950, covers the ease of a workman who has been injured while engaged in the construction of a new ship that has been launched and nearly but not quite completed. On February 27, 1930, Robert A. Taylor, an employee of the Charleston Dry Dock & Machine Company at Charleston, S. C., was engaged in drilling holes for the placing of lights on the mast of U. S. lightship No. 115, a vessel which the company was building. She had been launched and was then afloat at a dock in the Cooper river, and was 96 or 97 per cent, complete. While doing the work, Taylor fell to the deck and received injuries from which he died on the same day. His parents filed a claim for compensation under the act in the office of the appropriate deputy commissioner, which was contested by the employer and by United States Casualty Company, its insurance carrier, on the ground that the injury and death of the employee occurred under circumstances not covered by the act, and that therefore the United States Employers’ Compensation Commission lacked jurisdiction in the premises.
The deputy commissioner found the facts outlined above, and rejected the claim on the ground that the construction of a new vessel does not involve a maritime contract. The claimants then brought a bill of complaint against the deputy commissioner under the provisions of section 921 of USCA title 33 to secure an injunction restraining him from enforcing the order of rejection and to cause it to be set aside. The case was considered on the record made before the deputy commissioner; and the District Judge, observing that the question was new and not free from difficulty, held that the deceased was engaged in maritime employment at the time of his death, and that his injury and death fell within the purview of the act. He therefore decreed that the order of the deputy commissioner be reversed, and that he proceed to award compensation to the claimants in the manner provided by the statute. Subsequently, the insurance company was granted leave to intervene, and brought the case to this court on appeal.
The gist of the argument presented to sustain the decision of the District Court is that the place of the accident is the test of the jurisdiction of the Commission over claims for compensation for personal injury, just as the jurisdiction of the federal courts over maritime torts, as distinguished from their jurisdiction over matters of contract depends upon the locality of the wrong, State Industrial Commission v. Nordenholt Corp.,
State Legislatures first provided compensation for industrial injuries, irrespective of fault or negligence, and the attempt was made to apply the state laws to workmen engaged in maritime employment upon navigable waters; but it was held that the acts when so applied were in conflict with the provisions of article 3, § 2, and article 1, § 8, of the Federal Constitution, whereby Congress was given paramount power to fix and determine the maritime law which shall prevail throughout the country. Southern Pacific Company v. Jensen,
Emphasizing these considerations, the appellee contends that it was the intent of Congress to exercise, its power to the full extent, and that, if an injury has occurred on navigable water, and the other limitations of the act are observed, it is immaterial that the employee was not engaged in maritime employment or in the execution of a maritime contract in the literal sense of these terms. We are not concerned with the power of Con-' gress to include within the scheme of a federal compensation law the kind of employment involved in this ease, unless it appears that it was the intention of Congress to cover it within the terms of the act. Congress obviously did not intend to cover all possible maritime employees, for by section 903 it expressly provided that no compensation should he payable in respect of the disability or death of a master or member of a crew of any vessel, or any person engaged in loading, unloading, or repairing a small vessel under eighteen tons net. There are other limitations in the act. Section 902(4) defines the term “employer” as an employer any of whose employees are employed in maritime employment, in whole or in part,1 upon the navigable waters of the United States. The term “employee” is not otherwise defined, but the act is obviously restricted to persons engaged in maritime employment. So it was said by the Chief Justice in Nogueira v. N. Y., N. H.
&
H. R. Co.,
Section 903(a) of the act provides: “Compensation shall be payable under this
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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 Sts~te law." We are par-. ticularly concerned here with so much of this limitation as restricts recovery to those instances where recovery through workmen's compensation proceedings may not validly be provided by state law. The significance of this phrase was brought out in Crowell v. Benson,
We conclude from these pronouncements of the Supreme Court that the federal act is applicable only to workmen engaged in maritime employment, and that compensation under the act may lawfully be paid only in those cases in which a state has no authority to act. The phrase "may not validly be provided by State law" obviously refers to the authority of a state to act and not to the inquiry as to whether a state has exercised its power. Congress intended to occupy only a portion of the field (the crews of ships being excepted) from which the states are excluded, and to abstain altogether from duplicating the work of the states in the field which they arc permitted to enter. Concurrent remedies in both state or federal pro-. ceèdin~s are not available. It was the original policy of Congress to leave to the states, as far as possible, to provide compensation to workers fó~ industrial accidents, and this policy has been continued in the present statute. It is noteworthy that by this course of action the requirement of uniformity in matters of admiralty and maritime jurisdiction is observed. Southern Pacific Company v. Jensen,
We come then to the nature of the injured man's employment in this case, and to determine whether it lay within the scope of permissible state compensation legislation. He was engaged upon navigable waters in the completion of a new ship launched but not quite finished or placed in navigation as an instrumentality of commerce. Such work is not maritime in the accepted meaning of that term. In Grant Smith-Porter Co. v. Rohde,
It follows that the deputy commissioner was barred from awarding compensation in this ease by the limitation imposed by section 903(a) of the act. This conclusion is in harmony with the provisions of section 902(4), which defines an employer under the act as one whose employees are employed in maritime employment; for workmen so engaged may not be provided with compensation by state law. We think it is clear that Congress used the words “maritime employment” in the same sense as they were used by the Supreme Court in the cited cases pertaining to state compensation laws, for these decisions ■were in the mind of Congress when it passed the act of 1927 in order to provide for compensation to maritime workers that the states eould not supply.
South Carolina, unlike most of the states, has not seen fit to pass a workmen’s compensation act. But this circumstance is not material in the pending ease, for our decision depends upon the existence, and not upon the exercise, of the power of the state to give to its people the benefits of such legislation.
No. 3411.
This ease, although docketed as a separate suit, is in effect a cross-appeal by the ■complainants and successful parties below in the foregoing suit from so much of the decree ■of the court as permitted intervention by the insurance carrier. After the District Court had rendered its original decree, United States Casualty Company, the insurance carrier for the employer, filed a petition in tho ease praying that the decree be set aside, and that it he allowed to intervene as party •defendant so that it might prosecute an appeal to this court. It had been a party to the proceedings before the deputy commissioner, and its counsel had assisted the United States attorney in defending the suit in the District Court, but it had not been a formal patty thereto. The United States attorney, on behalf of tho deputy commissioner, filed an answer to the intervening petition to the effect that he did not desire to prosecute an appeal, hut did not object to intervention by tho carrier for that purpose. The complainants demurred to the petition on the ground that the court was without power under the act to allow the intervention. The District Court vacated the decree and granted the petition, making the casualty company a party defendant in the ease upon condition that it adopt the answer of the deputy commissioner and be bound by the testimony that had been taken. Thereafter a formal decree was entered, whereby the prior decree was confirmed against the deputy commissioner and the casualty company. The casualty company appealed from the reversal of the decision of tho deputy commissioner, as we have seen, and the complainants in the District Court appealed from its order permitting the carrier to intervene.
The complainants contend that the District Court was without power to allow an intervention after the rendition of its final decree, and that the casualty company had no such interest in the litigation as entitled it to intervene. The carrier’s interest is said not to be direct and immediate, but secondary and consequential, the primary liability resting upon the employer. References are made to the several sections of the act which provide, without mentioning the carrier, that notice of injury or death must be given to the employer, section 912(a); that liability to pay compensation may be controverted by the employer, section 914(a), and that the claimant and employer may each present evidence at the hearing, section 919(d). There are, however, other sections of the act which show conclusively that the sections quoted, while mentioning only the rights and liabilities of the employer, have a direct bearing upon the rights and obligations of the insurance carrier, and clearly contemplate the right of the carrier to be heard in opposition to any claim. Undoubtedly the carrier is an interested party within the meaning of section 919(b), which provides that, within ten clays after a claim for compensation has been filed, the deputy commissioner shall give notice thereof to tho employer and any other person whom he considers an interested party; and within the meaning of section 919 (e), which directs the deputy commissioner to order a hearing upon the application of any interested party upon ten days’ notice to all interested parties; and within the meaning of section 921(h), which authorizes any party in interest to bring injunction proceedings to suspend or set aside a compensation order which is not in accordance with law. Section 919(h) requires the injured employee to submit to a physical examination by a duly qualified physician designated
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by
the
commission, and such physicians as the employer, employee, or carrier may select and pay for may participate in the examination. Under the similar provisions of the New York Compensation Act (Consol. Laws N. Y. c. 67), upon which the federal act was modelled [see Wheeling Corrugating Company v. McManigal (C. C. A.)
An important part of the whole scheme of administration under the act is that eontained in section 932, which requires the employer to secure payment, of compensation in divers ways, including insurance with any stock company or mutual company or assoeiation authorized by law to insure Workmen’s compensation. Section 935 makes sweeping provisions- for the substitution of the carrier for the employer in order that the liability for compensation may be most effieiently discharged and the administration of the law may be facilitated. The Commission is directed to provide,by regulation for the discharge by the carrier for the employer, of such obligations imposed by the act as the Commission considers proper in order to earry the law into effect. The section provides that “for such purposes (1) notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier, (2) jurisdiction of the employer by a deputy commissioner, the eommission, or any court under this chapter shall be jurisdiction of the carrier, and (3) any requirement by a deputy commissioner, the eommission, or any court under any compensation order, finding, or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer-
These provisions of the statute show that the insurance carrier of an employer has such an interest in the claim of an injured employee as to justify the carrier’s intervention in a suit to review the compensation order of the deputy commissioner. Equity Rule 37 (28 USCA § 723) provides that any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention; and it is well established that, if the party applying for intervention has a direct legal interest in the pending litigation, so that he will obtain immediate g’ain Or suffer loss from any judgment that may be rendered between the original parties, the court is authorized, in its discretion, to allow the intervention to take place; and in some instances intervention is a matter of right. Smith v. Gale,
The claimants, however, contend that the carrier may not properly be made a party defendant in the suit in equity because section 921(b) of USCA, title 33, directs that the suit be brought against the deputy commissioner, while section 921a, 33 USCA, imposes the duty upon the United States attorney to appear for him in the District Court and in any court to which the ease may be carried on appeal. If this interpretation is correct, the result would be that only the losing party before the deputy commissioner, whether it be the injured workman on the one hand, or the employer or the insurance carrier on the other, would have the right to be heard in the injunction suit in either the District Court or in the Circuit Court of Appeals, and the successful party before the deputy commissioner would have no right to defend the advantage which he had won. This conclusion is too unreasonable to be entertained.
The injured employee, the employer, an(j yle earrier are all clothed with a suifi-cjent interest in the result of such a suit as f-0 5e grafted permission to intervene as a matter of course, under the established prac-t;C0 prevailing in equity; and it cannot be supposed that it was the intent of Congress to forbid this just procedure merely because it failed expressly to authorize the joining of the successful party before the deputy commissioner as a defendant in the subsequent suit. On the contrary, the court should be all the more ready to exercise its discretion so that the act may be enforced according to its spirit, and a speedy decision of controverted eases may be accomplished. Indeed, it would seem to be good practice for the plaintiff in the equity suit to notify all adverse interested parties of the institution of the ease so that any one who desires may apply for leave to intervene; and the deputy commissioner should perhaps be required to do so by regulation promulgated by the Commission under the authority of section 939 of USCA, *527 title 33. An interested person who is not a party to the suit may well dispute the authority o£ the District Court to hind him by its decree, and, if it be held that the decree of the District Court is not binding upon, him, then, if the action of the deputy commissioner is reversed and a new award is made in accordance with the decree of the District Court, a second suit could he brought therein to review the final action of the deputy commissioner.
The petition for intervention in this case was not too late. Counsel for the carrier had been permitted to take part in tlio case to support the finding of 'the deputy commissioner, and the petition of intervention was promptly filed after the adverse decree. Equity Rule 37 (28 USCA § 723), above quoted, declares that intervention may be permitted at any time, and the decisions show that it may
ho
allowed after a final decree when it is necessary to do so to preserve some right which cannot otherwise be protected. United States v. Northern Securities Co. (C. C.)
The right of the carrier to intervention in such a case as the one now before the court does not seem to have been denied heretofore, for the cases show that in practice permission to intervene has been freely granted. New Amsterdam Casualty Co. v. Hoage, 60 App. D. C. 40,
The order of intervention was well founded, but the decree on the merits of the case must be reversed.
Case No. 3410, reversed.
Case No. 3411, affirmed.