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HARBOR TOWBOAT CO. v. LOWE

May 25, 1940

HARBOR TOWBOAT CO., Inc., et al.
v.
LOWE, Deputy Com'r of U.S. Employees Compensation Commission



The opinion of the court was delivered by: COOPER

COOPER, District Judge.

George A. Gipson, then captain of the Barge "E. A. Leach," was injured while acting as such on the barge on the 25th day of July, 1938, at or near Lock 7 of the State Barge Canal in Saratoga County. He filed claim for compensation with the Deputy Commissioner for the Second District. Upon due notice to all the necessary parties the Deputy Commissioner held a hearing and found that Gipson was an employee of the Harbor Towboat Company and directed that the Harbor Towboat Company and its insurer carrier, the (American) Lumbermens' Mutual Casualty Company pay him compensation under the statute. The amount of the award was $208.86.

Thereupon the Harbor Towboat Company and its insurer carrier brought this action in this Court in the form of Libel in Admiralty for an injunction to restrain and enjoin the Deputy Commissioner from enforcing his order of award and to set the award aside.

 The action is brought under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950 -- Navigation and Navigable Waters.

 The ground of the action was that order of award of the Deputy Commissioner was not in accordance with law because of the errors therein enumerated in the libel.

 It is agreed by all parties that the one question here is whether or not the Deputy Commissioner erred in finding that Gipson was an employee of the Harbor Towboat Company.

 It is settled that the Courts cannot interfere with or set aside the decision of the Deputy Commissioner under the Act, if there has been a proper hearing and sufficient evidence exists to sustain his finding. Lumber Mutual Casualty Insurance Company v. Locke, 2 Cir., 60 F.2d 35; Pacific Emp. Ins. Co. v. Pillsbury, 9 Cir., 61 F.2d 101; Independent Pier Company v. Norton, 3 Cir., 54 F.2d 734; Voehl v. Indemnity Insurance Company of N.A., 288 U.S. 162, 53 S. Ct. 380, 77 L. Ed. 676, 87 A.L.R. 245; Del Vecchio v. Bowers, 296 U.S. 280, 56 S. Ct. 190, 80 L. Ed. 229; South Chicago, Coal & Dock Company v. Bassett, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732 decided by the U.S. Supreme Court February 26, 1940.

 The libellant here does not dispute but that such is the law, but asserts that under the facts shown at the hearing, the claimant as a matter of law, at the time of the accident was the employee servant of the New York Marine Company, the owner of the barge "E. A. Leach" and that said company and its insurance carrier, are, therefore, liable to claimant for payment of compensation to him.

 The parties stipulated to the following facts at the opening of the hearing before the Deputy Commissioner: "* * * that the barge "E. A. Leach" was the property of the New York Marine Company; that prior to June 9th, 1938, the injured claimant Gipson, had been in the employ of the New York Marine Company as a laborer about their yard; that the barge "E. A. Leach" was chartered by the New York Marine Company to the Harbor Towboat Company and that the claimant, Gipson, went with the barge as captain thereof on June 9, 1938, that Gipson was paid for his services as barge captain by checks of the charterer, the Harbor Towboat Company; and that on the same day, to wit, June 9, 1938, the barge was chartered by the Harbor Towboat Company to the Cargo Carriers Inc. and that the claimant went with it under the latter charter."

 The findings of the Deputy Commissioner on the subject of employment are as follows: "That preceding June 8, 1938, claimant above named was employed by the New York Marine Company as watchman of the Barge 'E. A. Lynch' which was then in an idle status, awaiting cargo; that on June 8, 1938, the New York Marine Company chartered the said barge to the Harbor Towboat Company; that Thomas S. Dwyer is the president, and John R. Dwyer, vice-President of the Harbor Towboat Company; that the New York Marine Company notified the claimant that he was to go with the barge when chartered, as its captain, and that when it entered the 'Dwyer Service' his wages would be paid by the charterer; that the claimant acquiesced in the transfer of his service and employment from the New York Marine Company to the 'Dwyer Service'; that on June 9, 1938, unbeknownst to the claimant, the Harbor Towboat Company chartered the barge to the Cargo Carriers Inc.; that by the terms of the said charter it was stipulated and agreed that the Harbor Towboat Company 'shall provide and pay for all provisions and wages of the crew and all necessary supplies to operate the vessel * * *.' That during the entire period of his employment as captain of the barge, the claimant was paid his wages by check of the Harbor Towboat Company, which checks bore the signatures of Thomas S. and John R. Dwyer; that from June 8, 1938, claimant was in the employ of the Harbor Towboat Company."

 The libellants assert, in support of their contention that Gipson was the employee of the New York Marine Company, these things: "(a) That the claimant, the barge captain, Gipson, was employed and appointed by the owner of the barge "E. A. Leach", namely the New York Marine Company, as captain of the barge and to go with it on its charter to the Harbor Towboat Company; (b) that the payment of his wages by checks of the charterer, the Harbor Towboat Company, were advances for the account of the owner out of the Charter hire and that such payments were, therefore, actually made by the owner of the barge, the New York Marine Company; (c) that although the barge "E. A. Leach" under the second charter to the Cargo Carriers, Inc., became a part of a fleet of such boats propelled by a tug, and that in the navigation of the fleet the claimant barge captain received instructions from the tug captain, that the injured claimant, the barge captain, Gipson, was under the control of the owner of the barge, New York Marine Company, and subject to be discharged only by said owner of the barge who had hired him."

 A charter of such a barge with captain is a demise of the boat to the charterer and the captain remains the agent and employee of the owner. Zabriskie v. City of New York, D.C., 160 F. 235; Hastorf v. F.R. Long-W.G. Broadhurst Company, 2 Cir., 239 F. 852; Dailey v. Carroll, 2 Cir., 248 F. 466; Schoonmaker-Conners Company v. Rosoff Engineering Company, 2 Cir., 10 F.2d 64; Calhoun v. Daly, D.C., 18 F.Supp. 1005; Price v. Long Dock Company, D.C., 23 F.Supp. 501. The Cary Brick Company No. 8, 2 Cir., 34 F.2d 981.

 Respondent urges that most of these are negligence cases and not compensation cases.

 But that is immaterial for these cases declare the law that when a boat is chartered with the captain hired by the owner and going with the boat, as here, the captain ...


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