action to be barred by a statutory assignment.
Based on these cases, the defendant would have me hold that Dunbar's initial receipt of benefits more than six months prior to commencement of this action now bars his claim. Although the facts of this case appear to fall within the district court decisions which have followed Liberty, I conclude, with all respect, that those decisions depart from the scenario Congress contemplated in enacting Section 33(b).
While an arrangement which would expedite the "award," and resulting assignment, might, in certain circumstances, be beneficial both to employers and to employees, in that it would permit the employer, the party typically having the greater resources, to proceed with the court action without superfluous administrative hurdles, section 33(b) does not in terms specify, and does not by apparent implication suggest, any such procedure. Nor has the Labor Department established such a procedure, apart from the Office of Workers' Compensation Programs' informal settlement mechanism. The Longshoremen's and Harbor Workers' Compensation Act is to be construed liberally; but that prescription is designed to promote the interests of the injured employee. See Voris v. Eikel, 346 U.S. 328, 333, 74 S. Ct. 88, 91, 98 L. Ed. 5 (1953). It is common ground that, "(n)arrow statutory construction should not deprive the injured employee of either his compensation or his claim in damages against third parties." Potomac Electric Power Company v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295, 296 (1965). Liberal construction which yields such disfavored consequences must also be avoided.
In support of its motion for summary judgment, Retla asserts only that Dunbar has filed a claim with the Office of Workers' Compensation Programs, that his employer has submitted the forms required by law, and that Dunbar has received compensation from his employer commencing on a date more than six months prior to bringing this lawsuit. It is well settled, however, that "mere acceptance of compensation payments does not preclude an injured employee from thereafter electing to sue a third party tortfeasor." American Stevedores v. Porello, 330 U.S. 446, 456, 67 S. Ct. 847, 853, 91 L. Ed. 1011 (1947). Apart from the filing of the claim itself, plaintiff has undertaken no action which might properly be construed as an election permanently to surrender his tort claim. Indeed there has been no substantial involvement by this plaintiff with the Office of Workers' Compensation Programs which might have alerted him to the fact that acceptance of compensation from his employer might later be viewed as a forfeiture of his rights against third parties. To allow an assignment of a claimant's entitlement to sue to be triggered by the mere acceptance of benefits and the passage of time, at a point when the claimant is most in need of those benefits, would increase the likelihood that the assignment will be unwitting and unwilling, for both employer and employee a result at odds with the purpose of the Act generally and this section in particular.
In the alternative, defendant, the time charterer of the vessel, has moved that this case be transferred to the United States District Court for the Southern District of Texas, Galveston Division, pursuant to 28 U.S.C. § 1404.
In Civil Action No. 79-94, a case in which Dunbar is suing International Union Lines, as the vessel's owner, for the injuries which have given rise to the instant suit, I entered an order, and explanatory opinion, denying the motion of International Union Lines to transfer that case to the Southern District of Texas. Dunbar v. International Union Lines, Ltd., (E.D.Pa.1979). As I stated in that opinion, the possibly greater availability of witnesses points somewhat toward transferring this case to Galveston. However, Dunbar's averment there uncontradicted by International Union Lines and here uncontradicted by Retla that he would be unable to afford the expense of prosecuting the case in Galveston, "weighs heavily in favor of retaining the case in this district." And here, as there, the defendant has asserted no special ties to the Southern District of Texas.
In my opinion in Dunbar's suit against International Union Lines, I placed some reliance on the economy of conducting these two related cases in a single forum. Having denied the earlier transfer motion, I now reaffirm that the single forum should and shall be the Eastern District of Pennsylvania. Wherefore, an order will enter denying defendant's motion for summary judgment and denying defendant's alternative motion to transfer this action to the Southern District of Texas.