The opinion of the court was delivered by: INCH
This is a proceeding brought pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(b), to set aside, as not in accordance with the law, a compensation award, known as a death benefit, pursuant to an order made by the Deputy Commissioner, dated May 5, 1943, 33 U.S.C.A. § 919(f).
The order directs payment by the plaintiff Railroad Company, a self-insured employer, to the intervenors-defendants on the claims arising out of the death of one Gallagher, employed by plaintiff.
The plaintiff Railroad Company owned and operated a tug, Cutchogue, in the harbor of New York.
At the time of the accident, Gallagher was the first mate of the tug which was preparing to dock a carfloat and had gone to the bow of the float to handle the lines and signal the captain of the tug, when he went overboard and was drowned. Thereafter the father, mother, and brother of the deceased filed claims with the United States Employees' Compensation Commission demanding funeral expenses and death benefits under the provisions of the Longshoremen's and Harbor Workers' Compensation Act. The mother of the deceased died prior to the first hearing. The intervenors-defendants are the father and brother.
The matter came on for a hearing before the Deputy Commissioner on February 3, 1943, and the plaintiff Railroad Company resisted the claims on the sole ground that the Commissioner did not have jurisdiction owing to the fact that Gallagher, at the time of his death, was a member of the crew of the tug.
Thereafter the Deputy Commissioner made an award and signed and entered an order allowing the aforesaid claims of the father and brother of the deceased and directing the payment of compensation to them.
The testimony taken before the Deputy Commissioner has been stipulated and agreed on and pursuant thereto has been submitted to the court and is comparatively brief, shows no contradictions, and is properly confined to this question of jurisdiction, to wit, whether the deceased, at the time of his death, "was a member of the crew of the tug Cutchogue"? The Commissioner after the close of the hearings made findings of fact and these findings need special attention because on them rests the award and the subsequent order.
At the outset it needs no citation of authority to say that this court does not and cannot weigh the evidence before the Deputy Commissioner. The findings of the Deputy Commissioner, provided there is some evidence to support them may not be disturbed. Also the question is not presented of whether the tug, at the time in question, was engaged in navigation, on navigable water, and had a "crew". This latter has sometimes caused considerable trouble. See Hawn v. American Steamship Company, 2 Cir., 107 F.2d 999.
Also the mere finding that Gallagher was a member of the crew does not, as a matter of law, determine the issue here presented, for such membership is a question of fact as to the nature of such membership. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732.
Finally the multitude of cases which have been or could be cited relating to laborers, longshoremen, barge captains, caretakers, and similar workers are not material in this case for we not only have a tug engaged in "navigation" but a "crew" of a tug so engaged, of which Gallagher was a member. The sole issue is Was Gallagher such a member of this crew of the tug at the time of his death as to be excluded by the Act? If he was, the plaintiff Railroad Company is right in its contention that his death was not covered by the Act in question and as a seaman, rights arising from his death, are to be enforced under the Jones Act, if at all. If he was not such a member of the crew then the Deputy Commissioner was correct.
The Deputy has found, and there is ample evidence to support his findings, "that on October 1, 1941, (the day Gallagher died) he had been previously assigned to the tug Cutchogue as the mate. That the tug was used to tow and transfer carfloats about the harbor. That the crew of the tug, in addition to the deceased as the mate, consisted of the captain, engineer, oiler, fireman, deckhand and floatman. That the captain was in charge of the navigation and operation of the said vessel and the only one licensed to pilot it. That the mate (Gallagher) handled the decklines when undocking, cleaned the brass and floor of the pilot house, spliced the ropes, and when the floats were being docked he stood on the bow of the float to signal the captain of the tug in the pilot house in regard to the vessel's movement and handle the lines of the float. That he could and did pilot the vessel when the captain was present". (Italics mine).
However, the Deputy Commissioner concluded, that at the time of his death, deceased was not a member of the crew of any vessel within the definition of Section 2, of the said Act.
Section 2, 33 U.S.C.A. § 902(3) and Section 903(a) (1) are very brief. They read: "(3) The term 'employee' does not include a master or a member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net". Section 903(a) (1): "No compensation shall be payable in ...