had been a painter for about thirty-five years; that he had never served as a master or officer; that he had never had any seamen's or master's certificates or papers of any kind; that in 1908 he had worked as a seaman on a Merchant and Miners vessel plying between Philadelphia and Boston for about six months; that in 1930 he had worked on a dredge owned by the United States Engineering Department along shore for "a couple of months". He was employed by the Warner Company for about two years, from mid-1936 to mid-1938. When he left the Warner Company in 1938 he was employed intermittently as a painter by Girard College in Philadelphia for about two years. He was re-employed by the Warner Company about three months before the accident.
While the plaintiff in its brief (p. 6) described Rusin as "an experienced seaman, having spent most of his life in that occupation prior to being employed by the Warner Company", there was no testimony offered by the plaintiff in support of that contention.
The sum and substance of the testimony then is that Rusin was employed as a bargeman with duties substantially similar in nature to the bargemen in De Wald v. Baltimore & O.R. Co., 4 Cir., 71 F.2d 810; Diomede et al. v. Lowe, Deputy Commissioner, 2 Cir., 87 F.2d 296; The A.H. Chamberlain, D.C., 206 F. 996, 998; South Chicago Coal & Dock Co. et al. v. Bassett, Deputy Commissioner, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, 694, certiorari denied 313 U.S. 577, 61 S. Ct. 1104, 85 L. Ed. 1535.
In all of the cases cited, with the exception of Loverich v. Warner Co., supra, it was held that the barge masters did not come within the category of "a master or member of a crew" and hence were subject to the exclusive jurisdiction of the Longshoremen's Act.
In the Loverich case, the United States Circuit Court of Appeals for this Circuit ruled that the bargeman employed upon one of the Warner Company barges of the same type as that involved in the instant proceeding came within the category of "a master or member of a crew" and was therefore exempt from the scope of the Longshoremen's Act, and allowed him to recover in admiralty.
In Berwind-White Coal Mining Co. v. Rothensies, D.C., 45 F.Supp. 55, 60, decided May 15, 1942, in which the question involved was whether "barge captains" were exempt from social security taxes as an "officer or member of the crew", I ruled that the barge captains, performing substantially the same duties as the bargeman in the instant case, were not exempt.
In my opinion, I discussed in detail the history of the Longshoremen's Act and the decisions thereunder. I there pointed out that the Loverich case turned largely on the fact that the bargeman was an experienced, qualified seaman, as stated in the opinion of the Circuit Court at page 694 of 118 F.2d: "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 a seaman."
Since the bargeman in the instant case was not an experienced, qualified, licensed or certificated seaman, I am of the opinion that the ruling in the Loverich case is not dispositive of the question here involved.
It is important to note that the Circuit Court of Appeals in the Loverich case specifically noted that the fact situation there was an "exception" such as was explained and applied by the Supreme Court of the United States in South Chicago Coal & Dock Co. et al. v. Bassett, Deputy Commissioner, supra.
In Berwind-White Coal Mining Co. v. Rothensies, supra. I pointed out that in its opinion the Supreme Court of the United States in the South Chicago Coal & Dock Co. case, in discussing the legislative history of the Longshoremen's Act, stressed the fact that it was at one time amended so as to include a master and members of a crew of a vessel; that later the bill was amended so as to exempt "seamen"; that in final passage, however, the words "master or member of a crew" were substituted for "seamen."
Referring to this final change, the court said at page 257 of 309 U.S., at page 547 of 60 S. Ct., 84 L. Ed. 732: "* * * We think that this substiution has an important significance here. For we had held that longshoremen engaged on a vessel at a dock in navigable waters, in the work of loading or unloading, were 'seamen'. International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19, 71 L. Ed. 157; Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S. Ct. 88, 73 L. Ed. 232. And, also, that such seaman if injured on a vessel in navigable waters, unlike one injured on land, could not have the benefit of a state workmen's compensation act. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L.R.A.1918C, 451, Ann.Cas.1917E, 900. We think it is clear that Congress in finally adopting the phrase 'a master or member of a crew' in making its exception, intended to leave entitled to compensation all those various sorts of longshoremen and harbor workers who were performing labor on a vessel and to whom state compensation statutes were inapplicable."
In Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 50 S. Ct. 303, 74 L. Ed. 754, the Supreme Court also pointed out the changes made in the Longshoremen's and Harbor Workers' bill.
The phrase "master or member of a crew" was interpreted in the case of De Wald v. Baltimore & O.R. Co., 4 Cir., 1934, 71 F.2d 810, prior to the passage of the Social Security Act. 42 U.S.C.A. § 301 et seq. In this case the Circuit Court of Appeals for the Fourth Circuit held that a bargeman whose functions were very similar to the barge captains in Berwind-White Coal Mining Co., supra, did not come within the meaning of the phrase "master or member of a crew". The bargeman's duties in the De Wald case consisted of the checking and supervising of the loading and checking of cargoes from the barge to steamships, and vice versa; seeing that the cargo was safely loaded and unloaded; opening and closing hatches on the barge, and putting in gangway boards; pumping water out of the barge, and making lines fast and unfast at docks or alongside vessels when the barge was moved about the harbor. The bargeman was not responsible for the navigation of the barge, and performed no duty in connection with such navigation, except the incidental one of making lines fast or unfast when tying up at docks or alongside vessels. The barges had no motive power equipment or steering apparatus, and were towed by tug boats.
Said the court, in ruling that the bargeman was not a "master" or "member of a crew", at page 813 of 71 F.2d: "Obviously De Wald was not a master. The A. H. Chamberlain, D.C., 206 F. 996. The judge below readily reached this conclusion. Nor in our opinion was he a member of a crew. He was the only man working on the barges in any capacity. 'Crew' is a collective noun and signifies 'the ship's company.' The Marie, D.C., 49 F. 286; Seneca Washed Gravel Corporation v. McManigal [2 Cir.], 65 F.2d 779; United States v. Winn, 28 Fed.Cas. page 733, No. 16,740."
In Diomede et al. v. Lowe, Deputy Commissioner, 2 Cir; 1937, 87 F.2d 296, the employee involved was in entire charge of a non self-propelled dump scow. He lived on board the scow, which was operated within New York Harbor, and occasionally outside the Harbor. His duties consisted of the loading and dumping operations of the scow; watching for leaks; making minor repairs; pumping out water; fastening and unfastening lines from the scow to the dock and from the tug boat to the scow, and keeping running lights in order and visible.
The Circuit Court of Appeals for the Second Circuit held in the Diomede case that the employee could not be classified as a "master" because he had no men to command and no ship to navigate; and further, that he was not a "member of a crew" because he was not aiding in navigation.
Said the court at page 298 of 87 F.2d:
"In The A. H. Chamberlain, D.C.E.D.N.Y., 206 F. 996, 998, in a well-considered opinion, the District Judge said, speaking of the status of one who was in charge of a scow: 'The captain of a scow or barge, who does the work of a deckhand, and does not have the right to control the vessel's movements nor employment, and can act only as agent, in the sense that any sailor might act under specific direction of his captain, is not a master.'
"We agree and think it impossible to classify an employee in charge of a dump scow, a boat without means of self-propulsion, and unmanned except for its 'captain,' as the master of a vessel. De Wald v. Baltimore & O.R. Co., supra. A 'master' without men to command, without a ship to navigate, and subject to the orders of the tug captain when the scow is in tow, is a notion difficult to accept and untenable when it is sought thereby to exclude the decedent from the remedy provided by the Act.
"Nor was the decedent the member of a crew. * * * 'The word "crew" is used in the statute to connote a company of seamen belonging to the vessel, usually including the officers. It is the "ship's company". United States v. Winn, 28 Fed. Cas. p. 733, No. 16,740. The crew is usually referred to and is naturally and primarily thought of as those who are on board and aiding in the navigation without reference to the nature of the arrangement under which they are on board. The Bound Brook, D.C., 146 F. 160, 164; The Buena Ventura, D.C., 243 F. 797, 799.'"
In Moore Dry Dock Co. v. Pillsbury et al., 1938, 100 F.2d 245, the Circuit Court of Appeals for the Ninth Circuit cited with approval the ruling in Diomede v. Lowe, supra, and De Wald v. Baltimore & O.R. Co., supra.
In Blaske v. Bassett, D.C., 35 F.Supp. 315, 316, the court distinguished between the "sort of work performed by longshoremen and harbor workers, and * * * the duties of those employees on a vessel who are naturally and primarily on board to aid in the navigation of the boat", and ruled that a man performing substantially the same duties as the bargeman in the instant case came within the jurisdiction of the Longshoremen's Act and was not "a master or member of a crew".
For the reasons above stated, I am of the opinion that the bargeman Rusin in the instant proceeding did not come within the category of "a master or member of a crew," and accordingly the motion to dismiss the complaint is granted.
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