This is аn appeal' from a judgment of the District Court dismissing appellants’ petition for an order enjoining enforcement of a compensation award made by the Deputy Commissioner to appellee Robert Marko-vich under the Longshoremen’s & Harbor Workers’ Act, 33 U.S.C.A. § 901 et seq.
On October 18, 1950, Markovich was injured while performing service as a fastener in work incidental to the repair of the tugboat El Sol which was then located on a marine railway at the yard of his employеr, Western Boat Building Company, in Tacoma, Washington. While walking alongside a lifeboat on the upper side of the ship, he lost his balance, and fell over the side, a distance of about forty feet. The marine railway upon which the El Sol was located is about 150 feet long and the lower portion thereof extends into the water. While thus undergoing repairs, the stern of the vessel was partially submerged in the waters of Puget Sound at high tide. It is not disputed that the waters of Puget Sound are navigable.
Shortly after his injury, appellee-Mark-ovich filed a claim for compensation with the Department of Labor and Industries of the State of Washington. The claim was allowed November 14, 1950, but was being further investigated. Monthly payments to Markovich began December 15, 1950, and three such monthly awards of $75.00 each had been paid at the time of the trial.
On January 10, 1951, while receiving compensation from the State of Washington, appellee-Markovich filed a claim for benefits with appellee-Deputy Commissioner, under the Longshoremen’s and Harbor Workers’ Act, and, after hearing, an order was entered making an award to him.
The appellant-employer contends that the Deputy Commissioner was without jurisdiction to make this award since appellee’s injury (1) did not occur on navigable waters and (2) compensation therefor was and could be validly provided by the Compensation Act of the State of Washington, RCW 51.04.010 et seq. It will be observed that Section 3 of the Longshoremen’s Act provides that compensation shall be payable 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.”
At the outset, therefore, we must determine whether the disability of appellee resulted “from an injury occurring upon the navigable waters of the United States (including any dry dock).” If not, the Federal legislation is inapplicable.
Although the Deputy Commissioner found that the stern of the vessel was partially submerged in navigable waters at high tide while the vessel was undergoing repair on the marine railway, we deem it unnecessary to decide whether Federal' jurisdiction may properly be tied to such an adventitious circumstance. Rather the legislative history of the Federal Act compels us to conclude that a marine railway
is
included within the statutory parenthetical expression “any dry dock,” and that, therefore, the first prerequisite to Federal jurisdiction is present. Viewing the Act in the-environment of its enactment, our reaction, is the same as that of the Fifth Circuit when
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it was presented with this very question in Maryland Casualty Co. v. Lawson, 5 Cir., 1939,
“Appellants contend that a marine railway is not a dry dock within the meaning of the law, relying upon Norton v. Vesta Coal Co., 3 Cir.,63 F.2d 165 , and Rohlfs v. Dept. of Labor and Industries,190 Wash. 566 ,69 P.2d 817 , which are in point but not controlling. We held to the contrary in Continental Casualty Co. v. Lawson, 5 Cir.,64 F.2d 802 , and decided that a marine railway is to be considered a dry dock within the meaning of the statute. Our decision finds support in Butler v. Robins Dry Dock & Repair Co.,240 N.Y. 23 ,147 N.E. 235 , in which it was held that a workman injured while engaged in repairing a vessel in a graving dock was cоnstructively on navigable waters when the accident occurred.
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“In enacting the Longshoremen’s and Harbor Workers’ 'Compensation Act is was clearly the intention of Congress to give the same rights and remedies to those employed in work of a maritime nature as are enjoyed by other workers under the provisions of state workmen’s compensation acts. The act is to be liberally construed to effect its purpose. Baltimore & Philadelphia Steamboat Co. v. Norton,284 U.S. 408 , 409,52 S.Ct. 187 ,76 L.Ed. 366 .
“In construing thе act we are not bound by technical definitions but must interpret it by giving to the words used their ordinary meaning. Courts of admiralty may take notice of terms in .general use in maritime affairs. Brown v. Piper,91 U.S. 37 ,23 L.Ed. 200 . In nautical parlance ‘dry dock,’ ‘floating dock’ and ‘marine railway’ are inter changeable terms. Necessarily, all are located on navigable waters and used for exactly the same purposes, i. e., to raise a ship out of the water to permit exаmination and repairs to her hull which are impossible while she is afloat. A ship’s master speaks of ‘dry docking’ Ihis vessel regardless of which method is to be used. That the words have a common meaning is illustrated by this case. Although operating a marine railway, appellant calls itself a dry dock.
“There are few dry docks, technically considered, in the United States. Floating docks or marine railways or both are to be found at every seaport. It must be presumed that Congress intended to protect the great majority of laborers employed on floating docks and marine railways as well as the comparatively few workmen employed on what are to be technically considered dry docks. We entertain no doubt that in extending the law to cover ‘any dry dock’ Congress intended to include marine railways. Cf. International Stevedoring Co. v. Haverty,272 U.S. 50 ,47 S.Ct. 19 ,71 L.Ed. 157 , and Warner v. Goltra,293 U.S. 155 ,55 S.Ct. 46 ,79 L.Ed. 254 .” (Emphasis supplied.)
Appellants contend that the Washington Workmen’s Compеnsation Act provided the exclusive remedy for compensation to Markovich. This argument necessarily implies that the payment of compensation under the state law ousts the federal jurisdiction. With such a statement we cannot agree. The record does not clearly indicate whether or not there has been a specific adjudication by the Washington Commission upon the issue whether the Federal or State compensatiоn law was applicable, and appellee-Markovich vigorously contends that the three compensation payments made to him by the State of Washington were voluntary in nature.’ Even if it be assumed, arguendo, however, that the Washington Commission had adjudicated and granted the award under the state act, we do not regard such action as constituting a bar to claimant’s rights under the federal law.
In the recently decided case of Newport News Shipbuilding & Dry Dock Co. v. O’Hearne, 4 Cir.,
“It is true that the Virginia Commission accepted jurisdiction in this instance and awarded compensation, and that the courts have been inclined in doubtful cases to uphold awards by state as well as by federal administrative authority; Davis v. Department of Labor and Industries,317 U.S. 249 , 250,63 S.Ct. 225 ,87 L.Ed. 246 ; but in the Pittman case awards have been made by both authorities and it is incumbent upon this court to decide between thеm. We hold that the case falls within the purview of the federal statute and outside the permissible scope of the state enactment.”
Payments theretofore made for compensation under the award of the state commission were merely credited upon the award of the Deputy Commissioner. See also Massachusetts Bonding & Insurance Co. v. Lawson, 5 Cir., 1945,
Appellants tell us that the lower court erred in failing to accord a
de novo
hearing on the question of whether Markovich was injured on navigable waters, their contention particularly being that “this is a. jurisdictional issue under the case of Crowell v. Benson,
“A different question is presented where the determinations of fact are fundamental or ‘jurisdictional,’ in the sense that their existence is a condition precedent to the operation of the statutory scheme. These fundamental requirements are that the injury occurs upon the navigable waters of the United States, and that the relation of master and servant exists. These -conditions are indispensable to the aрplication of the statute, not only because the Congress has so provided explicitly (section 3), but also because the power of the Congress to enact the legislation turns upon the existence of these conditions.
“It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency- — in this instance a single deputy commissioner — for the final determination of the еxistence of the facts upon which the enforcement of the constitutional rights of the citizen depend. * * * That would be to sap the judicial power as it exists under the Federal Constitution”.
We confess an inability to comprehend: the difference between these different varieties of fact questions. Later decisions do-not provide any formula for ascertaining when a fact becomes “jurisdictional” or “fundamental,” nor have the commentators, agreed on the proper categorization.
1
As aptly stated by Mr. Justice Frankfurter: “The opinions in Crowell v. Benson * * *" and the casuistries to which they have given rise bear unedifying testimony of the morass into which one is led in working out problems of judicial review over administrative decisions by loose talk about jurisdiction.” City of Yonkers v. United States, 1944,
In paragraph IV of their “Petition for Injunction,” appellants clearly indicate that there is no dispute concerning the facts as to which they seek de novo review: “ * * * That while working aboard the tug El Sol which had been pulled out of the navigable waters * * * by plaintiff’s marine railway, the said Markovich fell from said tug to the shore below * * It will thus be seen that appellants allege that the injury occurred while Markovich was employed on a ship resting on a marine railway. That a marine railway is equivalent to a dry dock within the meaning of the Longshoremen’s and Harbor Workers’ Act we have heretofore noted. There is, therefore, no issue present to be judicially reviewed.
We do not understand Crowell v. Benson to afford
a trial de novo as a matter of right
under circumstances where there is no real issue of fact presented. See Luckenbach S. S. Co., Inc. v. Lowe, D.C.1951,
We have already determined that the injury to claimant occurred upon navigable waters or upon a dry dock, within the scope of the Federal Act. But appellants urge that, even though this be true, claimant’s employment and injuries “were purely matters of local concern and unconnected with navigation and essentially non-man-time in character * * The latter part of this assertion is so lacking in substance that we summarily reject it at the outset. Suffice it to say that we think the employment of Markovich was
typically
maritime in nature. See North Pacific Steamship Co. v. Hall Bros. Co.,
Appellants suggest that the instant facts are strikingly similar to those of Alaska Packers Ass’n v. Industrial Accident Commission of the State of California,
We fail to find any such “striking similarity” in factual patterns between case at bar and Alaska Packers. There, while standing on the land in Alaska, claimant endeavored to push into1 navigable water a stranded boat, 26 feet long, and in so doing sustained physical injury. At the time of the accident, the fishing season was over, the nets had been removed, and the immediate purpose was to float thе boat to a dock nearby so that it might be lifted therefrom and stored for the winter, as was the usual practice. Although the claimant was employed as a fisherman in season, his off-season duties were those of a general worker in and around a cannery. Such employment might well be said to’ be non-maritime and not within exclusive admiralty jurisdiction, but the facts there are a far cry from those presented to us now. Accordingly the rule there evoked hаs no place in the decision of the instant controversy.
A convenient starting point for the brief historical review of the law applicable to> facts such as these is Southern Pacific Co.
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v. Jensen, 1917,
Some five years after the Jensen decision, however, in 1922, an exception was recognized in cases where the matter was maritime but local in character, this exception being thereafter referred to as the so-called “local concern” doctrine. To such situations, if the work of the claimant was only incidentally related to admiralty, the state compensation acts were allowed to apply.
This local concern doctrine was in vogue until Parker v. Motor Boat Sales, 1941,
It was upon such an uncertain foundation that Davis v. Department of Labor and Industries, 1942,
“There is, in the light of the cases 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.”
The above noted pronouncement of the Court was undoubtedly intended to provide solace to those injured workmen who, theretofore, had been belatedly informed that their choice of remedy was inappropriate, and that the frustrating task of renewing their claim in another forum must be undertaken before recompense might be had. But for the legal marksman whose client had suffered injury the “twilight zone” doctrine 3 fostered by the Davis decision may have made more obscure the forum at which he must aim.
Moores’ Case,
“It would seem, therefore, that although apparently some heed must still be paid to the line between State and Federal authority as laid down in the cases following the Jensen case, the most important question has now become the fixing of the boundaries of *415 the new ‘twilight zone,’ and for this the case gives us no rule or test other than the indefinable and subjective tеst of doubt. Mr. Justice Frankfurter says that ‘Theoretic illogic is inevitable so long as the employee * * * is permitted to recover’ at his choice under either act. 317 U.S. at page 2S9,63 S.Ct. at page 230 . Probably therefore our proper course is not to attempt to reason the matter through and to reconcile previous authorities, or to preserve fine lines of distinction, but rather simply to recognize the futility of attempting to reason logically about ‘illogic,’ and to regard the Davis case as intended to be a revolutionary decision deemed necessary to escape an intolerable situation and as designed to include within a wide circle of doubt all water front cases involving aspects pertaining both to the land and to the sea where a reasonable argument can be made either way, even though a careful examination of numerous previous decisions might disclose an apparent weight of authority one way or the other.”
On appeal to the United States Supreme Court, the Massachusetts decision was affirmed per curiam, causing considerable speculation among the commentators as to the true meaning of the Davis case which it interpreted. 4
Whether or not the Supreme Court has adopted, in toto, the interpretation of Davis v. Department of Labor and Industries, supra, attributed to it by the Massachusеtts court, can only be surmised. It is suggested by appellants that Baskin v. Industrial Accident Commission,
On remand,
The decisions in the Moores and Baskin cases, say appellants, indicate that the Supreme Court has “greatly broadened the rule of the Davis case,” and it is their contention that the Davis “twilight zone” doctrine, as subsеquently enlarged, is here controlling.
We agree that Davis is decisive, but we conclude that it dictates a result contrary to that for which appellants here contend. We perceive a vital distinction between the instant facts and those of the Davis, Moores, and Baskin cases. In none of the three had the federal authorities taken any action under the Longshoremen’s Act. In the instant action, however, the Deputy Commissioner has, upon hеaring, assumed jurisdiction and made an award under the Federal Act.
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That such action by the Deputy Commissioner under the Federal Act is all important is made clear by the following language of Mr. Justice Black, for the majority in the Davis case, supra,
“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 mill be rejected only in cases of apparent error.” (Emphasis supplied.)
We find no such apparent error in the judgment of the district court and that judgment is affirmed.