The opinion of the court was delivered by: KALODNER
The issue here is as to whether one Nicholas Rusin, a bargeman employed by the plaintiff, Warner Company, was "a master or member of a crew" within the meaning of the Federal Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq.
The pertinent provisions of the Act are as follows:
"§ 903. (a) Compensation shall be payable under this chapter in respect of disability or death of an employee * * *. No compensation shall be payable in respect of the disability or death of -- (1) A master or member of a crew of any vessel * * *."
"§ 905. The liability of an employer prescribed in section 904 of this chapter shall be exclusive and in place of all other liability of such employer to the employee * * *."
Section 902 -- "Definitions" -- provides: "(3) The term 'employee' does not include a master or member of a crew of any vessel * * *."
The Warner Company contends that Rusin came within the category of "a master or member of a crew" and was thus not entitled to any award under the provisions of the Longshoremen's Act.
The complaint, and the motion to dismiss the complaint, agree that the single question before the court is that of the jurisdiction under the Longshoremen's Act.
The facts as summarized in the original findings of the Commissioner are as follows:
"On March 11, 1938 said claimant while performing services for the employer upon the navigable waters of the United States, sustained personal injury resulting in his disability while he was employed as a boatman on Barge No. 59, then afloat on the waters of the Schuylkill River near Christian Street in said Philadelphia;
"That his duties consisted of general care of the barge or lighter to which he was at any time assigned, including making lines fast and unfast at docks and tightening or slackening them as necessary; that he had no other duty in connection with the operation of said vessels; that the vessel on which he was injured had no motive power of its own; that it was propelled either by towing or, for shorter distances, by winding up a cable by means of a capstan operated by hand; that the movements of the barge were confined to waters in the Schuylkill and Delaware Rivers within about 30 miles of the plant of the employer in Philadelphia; that he was the only person employed aboard the barge at the time of his injury;
"That on said date claimant was engaged in moving to a pier by means of a hand capstan the barge on which he was employed; that he succeeded in propelling it the greater part of the required distance against some difficulties of wind nd tide, in addition to the weight of the boat; that the capstan bar then pulled out striking him in the chest."
The itinerary of Rusin's barge at various times covered ports of call in Pennsylvania, New Jersey and Delaware; the Delaware, Schuylkill, Christiana, Cooper and Rancocas Rivers; and included trips sixty miles in length, which sometimes took fifteen days between loading and discharging, although the barge was not actually under way except for a fraction of the time -- i.e. for periods of fifteen or sixteen hours. The barge never went to sea. Rusin was continuously aboard. He lived, ate and slept on the ...