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December 2, 1938

LOWE, Deputy Com'r of Employees' Compensation Commission, et al.

The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is an action for a mandatory injunction to direct Samuel S. Lowe, Deputy Commissioner of the Second Compensation District, to set aside findings of fact, order and opinion, and restraining him from enforcing said order, dated June 16, 1938, and that he be further directed to make a new order allowing the plaintiff's claim for compensation and awarding him such sum or sums as he is entitled to pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

The Deputy Commissioner found the facts as follows: "That on the 7th day of April, 1937, the claimant above named was in the employ of the employer above named at New York, in the State of New York, in the Second Compensation District, established under the provisions of the Longshoremen's and Harbor Workers Compensation Act, and that the liability of the employer for compensation under said Act was insured by State Insurance Fund; that on said day and for nine or ten years prior thereto, claimant herein was performing service as a scow captain for the employer; that for about seven years immediately preceding said day, he had been in charge of the Scow 'Seaboard No. 16'; that he lived aboard the said scow and went with it from place to place within the harbor of New York and to Port Jefferson, Long Island, and sometimes to points in Connecticut on Long Island Sound; that the scow was a flat-decked vessel with bulkheads on each end, about nine feet high, which formed a wall against which the cargo of sand which was usually carried was piled; that the bulkhead on the sternend of the scow formed an outer wall of a cabin about twenty feet square on the deck of the scow which the claimant occupied; that about two or three times a month it was customary to load a cargo of sand at Port Jefferson, and that the sand was pumped out of the Bay, put through the employer's plant and loaded on to the scow, while wet; that when loaded on the scow it was about 25% salt water; that although the bulkhead was supposed to be watertight, some of the water which drained from the sand ran underneath the bulkhead into the claimant's cabin, so that each time sand was loaded at Port Jefferson, the floor of his cabin became damp; that the cabin floor was not continuously wet, but remained wet for three or four hours after the sand was loaded; that about five months prior to April 7, 1937, the claimant contracted a cold and began to cough and that he continued to cough and feel badly, until on April 7, 1937 he was referred by the employer to the United States Marine Hospital for examination; that examination disclosed an advanced pulmonary tuberculsis and a tuberculosis of the larynx; that he entered the Marine Hospital on April 8, 1937, and since that date has been wholly disabled because of tuberculosis; that written notice of injury was not given to the employer within thirty days, but that the employer had knowledge of the claimant's condition and has not been prejudiced by lack of such written notice; that the average annual earnings of the claimant herein at the time of his injury amounted to the sum of $952.12."

 Upon those findings, the Deputy Commissioner ordered that the claim be rejected for the reason that the disability is not the result of an accidental injury arising out of and in the course of employment.

 The clinical record of the plaintiff's case at Ellis Island sets forth the following diagnosis: tuberculosis, pulmonary, chronic, far advanced, tuberculosis of the larynx.

 Dr. William T. Power, called on behalf of the plaintiff testified that he examined plaintiff at the request of plaintiff's attorney, on April 16, 1938, and found in effect a condition of far advanced tuberculosis, and that he was not positive whether this was an arrested or quiescent T. B. case. Dr. Power further testified that the condition of the employment did not cause the tuberculosis condition, but that at most it may have aggravated a condition which previously existed, but which was, for some time previously, arrested. He further testified that it would be unusual in a man over 50 to develop tuberculosis from some unsanitary condition.

 The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A., at Section 903 provides: " Coverage. (a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. * * *"

 And, at Section 902 provides, so far as is necessary for consideration herein:

 " Definitions. When used in this chapter -- * * *

 "(2) The term 'injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment. * * *"

 The findings of fact of the Deputy Commissioner were sustained by the evidence, and are final. Southern Shipping Co. v. Lawson, D.C., 5 F.Supp. 321; Wheeling Corrugating Co. v. McManigal, 4 Cir., 41 F.2d 593.

 The statute is remedial in its character and should be given a reasonably broad construction. Rothschild & Co. v. Marshall, D.C., 56 F.2d 415; Baltimore & Ohio R. Co. v. Clark, D.C., 56 F.2d 212; Pacific S.S. Co. v. Pillsbury, D.C., 52 F.2d 686; Wheeling Corrugating Co. v. McManigal, supra; Lumbermen's Mut. Casualty Co. of Illinois v. Lowe, D.C., 5 F.Supp. 447, but, in giving a broad construction to the statute, we must remember that it is to be construed so as not to be unfair to either party.

 In the case now before this Court there is no testimony to show an accidental injury, and plaintiff's contention of his right to compensation must be based, if it is to be sustained, on the disability due to an occupational disease.

 It does not seem to me that there was shown any causal relationship between the employment of the plaintiff, ...

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