The opinion of the court was delivered by: ABRUZZO
This is an action to set aside an award made by the Deputy Commissioner of the United States Employees' Compensation Commission which award granted death benefits to a widow and minor child of a deceased fisherman who met his death during the course of his employment.
The case is submitted to me based upon all of the proceedings had before the Deputy Commissioner which include a transcript of the testimony taken. The proceedings before the Commission were brought for the recovery of death benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 903(a)(1), which provides as follows:
'Sec. 903. 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. No compensation shall be payable in respect of the disability or death of-
'(1) 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 eighteen tons net; or * * * .'
Benjamin L. Bishop, a plaintiff in this action, was the owner of a fishing vessel Amanda Bishop, and was engaged in commercial fishing in the coastal waters of the United States. The deceased, Linus Goss, was employed as one of the fishing crew. This fishing vessel was about 80 feet long and 20 feet wide, with a gross tonnage of 52 and a net tonnage of about 15. It was manned by a fishing crew of about 16 men consisting of Benjamin L. Bishop, a captain, an engineer, a first mate, a striker-boatman, a cook, and an ordinary fishing crew which included the deceased.
On June 10, 1942, between 12:30 and 2:45 P.M., while the vessel was cruising around to locate proper fishing grounds in the coastal waters of the United States, the deceased sustained personal injuries when he fell overboard from the vessel, resulting in his death by drowning.
These fishing operations were carried on from Monday to Friday of each week, and it was customary for the men to go home for the week end.
The deceased was apparently a casual worker not permanently attached to the vessel. He was engaged generally in fishing, his rate of employment depending upon the amount of fish caught, to wit, seven and eight cents per 1,000 fish caught, from which was deducted his pro rata cost of the food that he ate. The men of the ordinary fishing crew were required to know how to catch fish and to handle and mend nets in the course of the fishing operation, but they were not required to have any knowledge of navigation, had no duties to perform in connection with navigation, and were not required to sign articles as seamen.
The Hartford Accident and Indemnity Company is the insurer of the owner of the vessel, Benjamin L. Bishop, and is a plaintiff in this action. The plaintiffs contend that on the basis of these facts, the deceased, at the time of his death, was a member of the crew within the exceptions to coverage of Section 903(a)(1) of the Longshoremen's and Harbor Workers' Compensation Act.
Conversely, the contention of the defendant, Maud Goss, is that the deceased was not a member of the crew within the contemplation of the said exceptions to coverage.
The decision in this case must necessarily rest upon interpretation of this section as to whether or not the deceased was a member of the crew. That must necessarily depend upon what the framers of this section intended it to cover and what it was designed to accomplish. A review of some of the cases heretofore decided might, therefore, be helpful in reaching a proper conclusion.
There is an unanimity of authority for the proposition that the award of the Deputy Commissioner should not be disturbed unless it be shown that such an award was arrived at without a basis in fact, and that the court on review will not weigh the evidence to determine whether it preponderates in favor of the Deputy Commissioner's findings. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. ...