word "seamen" was a broader term than "master or members of a crew".
I fail to see how the plaintiff's case is helped by the decision in Gale v. Union Bag and Paper Corp., supra, since all of the cases referred to clearly indicate that Congress intended the word "seamen" to have a broader connotation than "officers or members of a crew". Therefore, it seems obvious that it can readily be conceded for the purposes of the present case that the barge captains may come within the generally recognized classification of "seamen" and yet not come within the meaning of the phrase, "officer or member of the crew".
I have next to consider the recent case in this circuit of Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, 694, certiorari denied 313 U.S. 577, 61 S. Ct. 1104, 85 L. Ed. 1535. While this case is not relied on in the plaintiff's brief, defendant urges that it is distinguishable on its facts from the instant case. The Loverich case was an action for compensation for illness and injuries resulting from a fire on board an oil barge. The testimony disclosed that the employee involved was a licensed junior engineer and water tender, and qualified as an able seaman and barge master, second mate and third mate. He ate and slept on board the barge. During his employment he was paid by the month. He operated the entire barge, whose voyages sometimes took six weeks. During the trial, no question was raised with respect to the coverage of this employee under the Longshoremen's Act. The question arose for the first time on appeal for reasons which appear in the opinion of the United States Circuit Court of Appeals. That court ruled that the plaintiff came within the term "master or member of a crew". The ruling turned largely on the fact that the plaintiff was an experienced qualified seaman -- that he ate and slept on board and that the voyages of the barge sometimes took as long as six weeks (cf., in the instant case, the longest voyage of the barges was six hours).
In distinguishing the South Chicago Dock case, supra, the Circuit Court of Appeals said: "He was not a mere watcher of a coal chute * * *. He was a licensed junior engineer and water tender and qualified as an able seaman and barge master, 2nd mate and 3rd mate. * * * He operated the entire barge, whose voyages sometimes took six weeks. He was, therefore, in our judgment, not a harbor worker, but as seaman."
As far as the research of counsel and court has been able to determine, there is no reported case in which the present problem has been considered. This is, therefore, a case of first impression as far as the Social Security Act is concerned.
The plaintiff strenuously contends that the judicial interpretation of language in other federal acts is of little or no value in interpreting the language under consideration in the Social Security Act. However, the court is here called upon to interpret a phrase which is practically identical with one appearing in another recent Act of Congress, and which language has been given judicial interpretation by the Supreme Court of the United States, as well as by several lower courts. It is a well known rule of statutory construction that Congress must be considered to have used words in a Statute in their known and ordinary significance and with their popular import: Old Colony R.R. Co. v. Commissioner, 284 U.S. 552, 52 S. Ct. 211, 76 L. Ed. 484; Deputy v. Du Pont, 308 U.S. 488, 493, 60 S. Ct. 363, 84 L. Ed. 416.
At the time of the passage of the Social Security Act in August of 1935, as previously indicated in this opinion, the phrase "master or member of a crew" in the Federal Longshoremen's Act had been judicially interpreted in the De Wald v. B. & O.R. Co. case, supra. Moreover, and of even greater significance, is the fact that the history of the legislation in connection with the Longshoremen's Act (as referred to by the Supreme Court in the South Chicago Dock case), was known and available at the time of the consideration by Congress of the Social Security Act. The adoption of practically identical language in the Social Security Act for the exclusion of "officer or member of the crew" does not by any means appear to be accidental; quite to the contrary. I am of the opinion that the adoption of practically identical language was made by Congress with the intention of excluding the same class of persons or employees from the Social Security Act as were excluded by the Federal Longshoremen's Act in the class "master or member of a crew".
In its reply brief the plaintiff strenuously contends that Article 10 of Regulations 91 (promulgated by the Acting Commissioner of Internal Revenue with the approval of the Acting Secretary of the Treasury on November 9, 1936) is broad enough to embrace the barge captains in the description of the term "officers and members of crews". Plaintiff points out that Section 808 of the Social Security Act, 42 U.S.C.A. § 1008, expressly authorized the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to make regulations. The case of Fawcus Machine Co. v. United States, 1931, 282 U.S. 375, 51 S. Ct. 144, 75 L. Ed. 397, is cited for the proposition that if the administrative regulations contemporaneously construing a statute and made for its enforcement under an express general authorization contained therein, are not unreasonable or inconsistent with the statute, they should not be overruled by the court except for weighty reasons. The difficulty with the plaintiff's position in this respect is that while I recognize Article 10 of the Regulations to be very broad on its face, I must take into consideration the history of the legislation as it pertains to the disputed clause of the act and, therefore, even if it be conceded arguendo that the Commission's regulation is broad enough to embrace bargemen within the exclusion of "officer or member of the crew", I must conclude that if such is a proper interpretation of the regulation, then the regulation would be inconsistent with the statute. With all due sympathy for the plaintiff's position, I might add that were it not for the legislative and judicial history of the language in dispute, the emphasis which the plaintiff ascribes to the regulations might be of more decisive effect.
The plaintiff's contention that Congress intended to eliminate administrative difficulties in excluding "officer or member of the crew" in the Social Security Act, and therefore all "seamen" must be considered to have been embraced within this class, is without merit. I cannot see that administrative difficulties would arise from a ruling that such bargemen are not exempt from the provisions of the Social Security Act. It should be just as simple a matter to collect the tax with respect to the compensation of these bargemen as it would be in connection with harbor and dock workers who work on land. Moreover, it is a well-recognized principle of statutory construction, particularly in matters of taxation, that one who seeks to come within an exempt class has the burden of proof that he comes within such exemption or exception.
I therefore have reached the conclusion that the barge captains in the present case are subject to the imposition of the Social Security Tax and do not fall within the exempt class of "officer or member of the crew".
Conclusions of Law.
1. The taxes collected by the defendant from the plaintiff were lawfully assessed and collected.
2.The barge captains employed by the plaintiff were not "officer or member of the crew" within the meaning of the exemption granted by Section 811(b) (5) of the Social Security Act.
3. Defendant is entitled to judgment in his favor, together with costs and disbursements of this action.
An order for judgment may be submitted in accordance with this opinion.