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March 30, 1936

DIOMEDE et al.
LOWE et al.

The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

By their bill of complaint herein, plaintiffs apply to this court to set aside an order made by the Deputy Commissioner of the United States Employees' Compensation Commission for the Second Compensation District, rejecting plaintiffs' claim to compensation in a proceeding instituted under and pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

If not in accordance with law, a compensation order made by a Deputy Commissioner in such proceeding may be suspended or set aside, in whole or in part, through injunction proceedings mandatory or otherwise, brought by any party in interest against the deputy making the order, and instituted in the federal district for the judicial district in which the injury occurred. Section 21 of the act, 33 U.S.C.A. § 921. No question of procedure is involved here. Examination of the evidence adduced before the Deputy Commissioner indicates that there was substantial evidence sufficient to justify his findings of fact; the parties in interest concede the propriety of the findings in this respect. The sole question presented is whether under the facts found and reported by the Deputy Commissioner the deceased, Nicholas Diomede, comes within the coverage of section 3 of the aforesaid act (33 U.S.C.A. § 903). The Deputy Commissioner concluded that the deceased was the master of a vessel and ordered that the claim herein be rejected in view of the exception in subsection 1 of section 3 (a) of the act, 33 U.S.C.A. § 903 (a) (1), which provides that no compensation shall be payable in respect to the disability or death of a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under 18 tons net. Specifically, the point involved is whether Nicholas Diomede within the meaning of the act was "a master or member of a crew" of the scow upon which he was employed at the time he met his death.

 The findings of fact by the Deputy Commissioner describe in some detail the duties of the deceased in this case. He had been in the employ of Moran Bros. Contracting Company, Inc., for about fifteen years prior to the date of his death, and during all that time had charge of the employer's dump scow Moran No. 18. The scow was without any means of self-propulsion, being towed from pier to destination by the employer's tugs, and was used to transport ashes, mud, and refuse from the piers within the harbor of New York to dumping grounds beyond the harbor limits. Diomede was the only person engaged on the scow, which was equipped with a cabin and bunk for his use. Except upon special privilege being granted, he was expected to remain on board the scow. He was compensated at the rate of $1 per day whether the scow worked or not, and he received extra compensation to the maximum of $3 per day when the scow was loading or en voyage.

 The duties of the deceased were to supervise the loading of the scow so that the cargo would be evenly distributed and the scow ride on even keel, to be watchful lest the scow became unseaworthy, and to make minor repairs to prevent the same, to pump out water which leaked into the barge, to unfasten the lines from the dock to the scow when voyages were begun, to make fast lines from the tow to the scow, to lengthen and shorten the lines between the tow and scow as necessary en route, and to tie up the scow to the dock upon its return from a voyage. He was likewise required to open and close the hatches of the scow, to dump the cargo upon its arrival at the dumping ground, to splice the lines when necessary, and to keep running lights in order and visible.

 On the evening of July 25, 1934, the deceased left with the scow from pier 9 in the city of New York, and proceeded with another scow, both of which were under tow, out into the harbor. The intended destination was a point three miles outside of Scotland Lightship, which is beyond the harbor limits of the Port of New York. After rounding buoy No. 6 in Swash Channel, which is within the harbor limits, the captain of the tug, which had the barges under tow, signaled by means of blasts of the tug whistle to the captains of the barges to lengthen the lines between the tug and the scows. The deceased failed to respond to this signal and upon investigation he was found to be missing. His body was subsequently discovered, death having resulted from submersion.

 Upon the foregoing facts, the Deputy Commissioner concluded that the deceased was "the master of a vessel which class of employees is excluded from the benefits of the Longshoremen's and Harbor Workers' Compensation Act." The Commissioner submitted no opinion to indicate the basis of his conclusion that the deceased was a master of a vessel; counsel for defendants have not cited any authorities or attempted to state any argument which might sustain his conclusion in this respect. I am of the opinion that this holding is not in accordance with law.

 It is plain, of course, that Congress by its very choice of the words "master or member of a crew of any vessel" contained in the excepting clause of the act with which we are now concerned indicated its recognition of a distinction between the two groups mentioned. And clearly, no supportable reason can be advanced to justify the thought that Congress intended that the words so used were to be given an esoteric connotation in the sense that the commonly accepted distinction between the two groups should be ignored.

 What, then, is a "master" of a vessel, as that term has always been understood? "He is," says Hobart, C.J., "the person entrusted with the ship and the voyage"; one who may implicitly raise certain liens upon the ship, and may even impawn the ship in case of extremities, for money to relieve against her distress. Bridgeman's Case, Hob. 11, 12 Moore, 918, S.C. He is one who, for his knowledge in navigation, fidelity, and discretion, has the government of his ship committed to his care and management, and the law looks upon him as an officer, who must render and give an account of the whole charge. Molloy, De. Jur. Mar. B.II. c. 2, § 1. "Few individuals," says Jacobsen, "in any relation, have so extended a mandatum praesumptum conferred upon them, as shipmasters." Jacobs, Sea Laws, B.I. c. 1, p. 82, of Balt.Ed. of 1818. The Lex Mercatoria Americana, p. 131, says a master of a ship is he to whom is committed the government, care, and direction of the vessel and cargo. The definition given by Prof. Wilson of the words maitre de navire is master, captain, or commander of a ship. Vide Wilson's French and English Dictionary -- verbo maitre. Curtis, in his treatise on the Rights and Duties of Merchant Seamen, p. 161, states that "the master of a merchant vessel is that officer to whom is intrusted the entire command of the ship." And in one of the oldest treatises on the rights and duties of owners, freighters, and masters of ships, and of mariners (a copy of which is found in the appendix to the second volume of Peters' Admiralty Decision), the powers and responsibility of a master of a vessel are thus defined (2 Pet.Adm. appendix lxxiv):

 "A Master of a ship is no more than one, who for his knowledge in navigation, fidelity, and discretion, hath the government of the ship committed to his care and management, and by the common law, by which properties are to be guided, he hath no property either general or special, by the constituting of him a master; yet the law looks upon him as an officer, who must render and give an account of the whole charge, when once committed to his care and custody; and upon failure to render satisfaction; and thereof if misfortunes happen, if they be either through negligence, wilfullness, or ignorance of himself, or his mariners, he must be responsible."

 Unquestionably, the power and authority conferred upon and intrusted to the master of a vessel by the common, civil, and maritime law included the control and management and the government and discipline of the vessel (cf. Martin v. Farnsworth, 33 N.Y.Super.Ct. 246, wherein is contained a scholarly discussion of the subject). And this concept and understanding of supreme authority in the master of a vessel has not changed to this day. It would seem reasonably clear that when Congress enacts a maritime statute which makes reference to a "master or member of a crew of any vessel," then, aside from the question whether the persons so mentioned were only intended to come within a particular classification of seamen, it must at least be assumed that the word "master" refers to one possessed of the same power and authority which all masters of ships are generally known to have. So far as the excepting clause of the statute in question is concerned, the term "master," when coupled by the disjunctive "or" with the phrase "member of a crew," can only refer to one in such superior position; for, it is the very existence of the aforementioned power and authority in the master of any vessel which distinguishes him from all others employed upon the vessel.

 Sufficient has been stated to show that the deceased, Nicholas Diomede, cannot be held to have been a "master" in any sense of that term. True, he was the sole person employed in connection with the Moran No. 18 and, in that respect, it may be said that the Deputy Commissioner correctly stated that he had charge of the vessel; but that would not make him "master" of the vessel within the proper meaning of the term. Diomede had no control over the navigation of the vessel; the evidence shows that the captain of the tug was at all times in command when the scow was in tow. He had no authority to employ any person to work on the Moran No. 18 or any other scow, or to discharge any person. At all times he was subject to the control and orders of another. At best, he was a mere deck hand.

 Consideration of this aspect of the question may be concluded by a brief reference to The A. H. Chamberlain (D.C.) 206 F. 996, 998. There, one Doty filed a libel for wages against the scow A. H. Chamberlain, a squarebuilt scow without motive power or masts. The libelant signed himself as captain, receipted bills of lading, and generally acted as the owner's representative in whatever was necessary to be done upon the scow's trips. In other respects he was but a mere deckhand, and during the greater part of the time was the only person employed upon the scow for everything which had to be done. Judge Chatfield, holding that the libelant was not a master, stated:

 "But 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 ...

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