The opinion of the court was delivered by: WELSH
This libel in rem brought by libellant, Gilbert C. Bynum, against the vessel Mormacteal, alleges that on December 23, 1959, libellant was injured while discharging cargo aboard the respondent vessel moored at Pier A, Port Richmond, Philadelphia, Pennsylvania. Damages are sought because of the alleged negligence and unseaworthiness of the vessel. At the time of the accident, libellant-longshoreman was in the employ of Moore-McCormack Lines, Inc., owner of the Mormacteal.
Moore-McCormack Lines, Inc., owner and claimant of the S.S. Mormacteal, has filed exceptive allegations, requesting dismissal of the libel in rem on the ground that the action is in fact a suit against the employer and is thus barred by § 5 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905.
1. The United States Court of Appeals for the Third Circuit, in Smith v. The Mormacdale, 198 F.2d 849, 850, certiorari denied 345 U.S. 908, 73 S. Ct. 648, 97 L. Ed. 1344, swept aside libellant's first contention stating:
'Where the vessel is the property of the employer, an action against the vessel is realistically an action against the employer; collection of damages out of the ship is, of course, an indirect way of collecting from the owner-employer. * * * To impose this additional liability on the employer in the situation where he is also ship owner would radically distort the intent of Congress in enacting the Longshoremen's Act.'
Later in its opinion the Court stated:
'The concept of the ship as a distinct juridical entity, while it may be a convenient conceptual tool for many purposes, should not be invoked here to frustrate the clearly manifested intent of Congress to limit the employer's liability to his employee to the remedy provided by the Act.'
We have been unable to find any appellate decision since the Smith case modifying or reversing the holding therein.
2. Libellant's second contention, however, is that the holding of the Smith case has been changed by the amendment of August 18, 1959 to the Act, 33 U.S.C.A. § 933(i), which provides:
'The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.' (Italics supplied)
In his brief, libellant states that 'the above amendment clearly means that the vessel continues to be liable for its torts in rem; only officers or employees of the employer are absolved from liability'.
In this respect we think that libellant is in error in view of (a) the plain language of the amendment and (b) its legislative history.
(A) Initially, if the libellant's conclusion were sound, it would mean that the employer itself is no longer protected. We think that this proposition is not tenable. It must be remembered that § 5 of the Compensation Act is the broad provision insulating the employer from any liability in addition to that imposed by the Compensation Act. To amend such broad provision of § 5, language far more explicit than that contained in the italicized portion of the amendment of August 18, 1959 is required.
(B) In the second place, it must also be remembered that, strictly construed, § 5 of the Act does not prevent an injured longshoreman from suing, individually, a fellow employee who may have been responsible for his injuries. The 1959 amendment to § 33 simply recognized the problem and solved it by forbidding such an action. In other words, the 1959 amendment to § 33 of the Act not only does not limit the provisions of § 5, but broadens them by insulating not only the employer, but also the fellow employees of the injured party from any liability in damages to the injured party. This is made clear by the legislative history of the amendment. U.S. Code Congressional and Administrative News, 86th Congress, First Session ...