Before CHASE, CLARK, and FRANK, Circuit Judges.
Libelant is the non-dependent adult son and administrator of a longshoreman who was killed on November 12, 1945, while employed by Turner & Blanchard, Inc., the impleaded respondent, to work on a vessel owned by the United States and operated by the War Shipping Administration, the original respondents. He instituted the present action the next year as legal representative of the deceased.*fn1 The United States answered the libel and upon its motion Turner & Blanchard, Inc., was then impleaded. In answer to the petition filed by the United States against it, Turner & Blanchard, Inc., alleged payment of $1,000 into a special Treasury Fund pursuant to the order of the Deputy Commissioner of the Second Compensation District made upon determination that there was no person entitled to compensation under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901 et seq., 944;*fn2 it therefore asked for dismissal of the libel and the petition as to it. Thereafter, on October 31, 1950, the United States moved for an order of dismissal of the libel. It contended that by virtue of the payment by the employer into the special fund pursuant to the Commissioner's order libelant no longer enjoyed the capacity to sue as legal representative of the deceased, since his right of action had been assigned to the employer by operation of 33 U.S.C.A. § 933(c).*fn3 The District Court agreed and entered a final decree dismissing the libel. From this decree libelant appeals.
The question is therefore a narrow one of interpretation of the statute. It is whether by force of § 933(c) the payment of $1,000 into the special fund operates as so complete and effective an assignment of a right of action for wrongful death accruing to a legal representative under a state statute that nothing remains for the representative to pursue. Two decisions have so held. Moore v. Christiensen S.S. Co., 5 Cir., 53 F.2d 299, and Adreance v. Lorentzen, Sup., 6 N.Y.S.2d 834. Other cases have so intimated. Doleman v. Levine, 295 U.S. 221, 228, 55 S. Ct. 741, 79 L. Ed. 1402; Chapman v. Griffith Consumers Co., 71 App.D.C. 64, 107 F.2d 263; Terminal Shipping Co. v. Branham, D.C.Md., 47 F.Supp. 561, affirmed Branham v. Terminal Shipping Co., 4 Cir., 136 F.2d 655. We agree.
The statutory language and intent seem reasonably clear. Following state models, notably that of New York, the Act provides for payments to an injured longshoreman and to the dependents of one killed without respect to fault; but it preserves whatever rights may exist against third-party tort-feasors, allowing claimants under the Act an election between such suit and the compensation provided, but giving the right thus to seek reimbursement to any employer upon his paying compensation. In that event any amounts recovered in excess of his expenditures go to the person entitled to compensation or to his representative. 33 U.S.C.A. § 933(e)(2). But where in the event of death there are no dependents payment of a fixed sum into a fund for the permanently disabled by successive accidents or those undergoing vocational rehabilitation is required instead, with like assignment of the right of action to ensure the employer's reimbursement. There is perhaps a slight ambiguity in that the Act first defines "compensation" as the "money allowance payable to an employee or to his dependents as provided for in this chapter," 33 U.S.C.A. § 902(12), but twice later in both §§ 933(c) and 944(c)(1) the payment into the fund for death is referred to as "compensation." Hence when the statute provides that the payment of "such compensation into the fund" shall operate "as an assignment to the employer of all right of the legal representative of the deceased * * * to recover damages against such third person," § 933(c),*fn4 it quite literally takes away all right from libelant and vests it in the employer, who thereafter controls it under § 933(d). And since the employer joined with respondent in asking dismissal below and affirmance of the dismissal here, libelant has no ground of objection on this appeal.
Libelant, however, contends that Congress could not have had such an intent, particularly because it thus leads to absurd and unjust results. He cites Seas Shipping Co. v. Sieracki, 328 U.S. 85, 102, 66 S. Ct. 872, 881, 90 L. Ed. 1009, to the effect that while Congress did intend the remedy of compensation to be exclusive as against the employer, it did not intend "this remedy to nullify or affect others against third persons." But as the Court stated, it was acting upon explicit provisions of the Act itself to preserve the right of the longshoreman himself against third persons.It had nothing to do with the case of a statutory assignment provided for on death of the longshoreman and lack of any dependents. Here, as Justice Stone had pointed out in Doleman v. Levine, 295 U.S. 221, 228, 55 S. Ct. 741, 79 L. Ed. 1402, on payment of $1,000 by the employer into the special fund, the right of the legal representative is by the statute assigned to the employer.No case holds otherwise.
Nor do we think there is made any such showing of absurdity or injustice as to suppose or require a contrary legislative intent.Libelant objects to control of the ultimate course of litigation against the third person by the employer, who has an interest, opposed to that of the legal representative, to get a comparatively small reimbursement quickly rather than a delayed greater recovery. But Congress obviously had to make a choice whether primarily to protect the employer's claim to reimbursement or the representative's claim to varying and - under a few statutes - possibly heavy damages. That it chose the former, in line with its general treatment of claims against third persons in the entire section, was well within the area of its reasonable discretion. The contention that this is an unconstitutional delegation of legislative power by making choice of recovery "subject to the whim and caprice of the employer" is surely fanciful. The further suggestion that this may make unreasonable discriminations between rights of recovery vested by state law in the legal representatives and those vested directly in named relatives not necessarily dependents likewise touches upon a matter of legislative discretion. In view of the diversity among death damage statutes in this country, Congress would have had difficulty in devising a single and non-confusing formula treating all quite alike. Had it intended some distinction among suits by representatives, it would undoubtedly have said so; but in that event it would presumably have singled out for discriminatorily unfair restriction such rights of action as those created in Connecticut, for example, which are in legal form for the benefit of the estate only, though distribution is eventually made to next of kin after paying costs and administration expenses. Selection of the case of a right in the representative for operation of the legal transfer has the merit of definiteness and simplicity, as well as of equal fairness with other suggested compromises. Hence the statutory language must be held to operate according to its natural intent.
We do not think a court is justified in rewriting the legislation so as to divide up the precisely described "all right," which is transferred to the employer under § 933(c), into two separate rights, diversely treated and separately enforced against a third person (whether he assents to this increased burden or not), while incidentally repealing or restricting the broad power to compromise conferred on the employer by § 933(d). However desirable such rewriting might seem from the standpoint of non-dependent relatives, favorably protected in certain accommodating states, such relatives, unlike dependents of the deceased, do not seem to have been an object of Congressional solicitude. When further it is borne in mind that the new provision would operate diversely as differing state laws govern - thus being inapplicable to those rights of action which are viewed as belonging to the deceased and continued only for his estate - the resulting diversity and confusion suggests that the power of framing better legislation "is with Congress, not us." Pillsbury v. United Engineering Co., 1952, 72 S. Ct. 223, 225.
Libelant's additional contentions may be shortly stated. He attacks the Deputy Commissioner's determination that no one was entitled to compensation as having been made without notice or hearing. He had made no request for a hearing which is to be granted "upon application of any interested party." 33 U.S.C.A. § 919(c). Moreover and in any event there is no dispute that the determination was correct on the facts. Hence libelant has not been injured, and there is no denial of due process under the Fifth Amendment or violation of the procedural requirements of § 919. Nor does the outright dismissal ordered by the court below conflict with Admiralty Rule XVIII of the Southern District of New York providing for joinder in case of "changes of interest in the suit." Non-dependents have no real interest in the suit. Moore v. Christiensen S.S. Co., supra, 5 Cir., 53 F.2d 299. Any other result would destroy the right of the employer to compromise provided by § 933(d). And any supposed laches of respondent in moving to dismiss has thus not injured the libelant.
FRANK, Circuit Judge (dissenting).
My colleagues, as I understand them, have interpreted the Longshoremen's and Harbor Workers' Compensation Act to mean this:
An employee subject to the Act is killed on the job but leaves no dependent relatives behind who are eligible for compensation. The employer is required to pay instead $1,000 into a statutory fund. In return, he receives the unfettered right to sue, settle or bury all claims of the seaman, his estate, or any of his relatives against a third-party responsible for the death. The estate and the relatives are stymied. They cannot themselves prosecute any suits against the third party in any court, state or federal, under any statute, state or federal. The employer takes over all such rights against the third party. Presumably, the assignment is to give the employer some indemnity for his $1,000 payment.
To be sure, anything he recovers over that $1,000, he must return to the estate or the relatives. This fact, however, remains: Most employers are fully insured for any compensation they pay out; practically speaking, neither the employer nor his insurer (because of the paucity of the $1,000 contribution) will undertake an expensive, time-consuming, worrisome lawsuit to recover $1,000. If they do anything at all, more likely it will be to compromise the third-party claim for a sum sufficient to indemnify themselves but not to compensate anyone else. The employer or his ...