The opinion of the court was delivered by: BYERS
These are cross motions concerning the award by a Deputy Commissioner of the Department of Labor of compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. to the widow of the Captain of the service-lighter Lexington who was drowned in this harbor on June 12, 1950 under undisclosed circumstances. Apparently the decedent fell into the waters at the foot of Court Street, while moving from a dock in the Bushey yard, across a float and the barge Lillian Petrie, to the Lexington which was moored alongside the latter. He and his companion Oleson had stopped in a saloon and partaken of the traditional 'couple of beers' on their way to these respective craft at around or later than 11 p.m. and the decedent Anderson was 'in a hurry' to reach the Lexington prior to midnight when she was to be taken in tow light to Bayonne, and there to receive a load of oil in drums.
Olesen's testimony is vague, but whether by design or otherwise, as to Anderson's disappearance from or failure to appear on the Lexington, it is unnecessary to ascertain for present purposes, since the latter's body was found afloat across the slip on the morning of the 13th. It is possible to surmise that perhaps he was sufficiently employed in interstate commerce to explain why no claim was asserted under the Workmen's Compensation Law of New York, McK. Consol. Laws, c. 67, if that is the fact, although its coverage applied to employees of the American Lighterage Corporation, one of these plaintiffs. A more realistic form of litigation would be presented in an action by the employer against the insurance company for alleged breach of the policy for failure to pay this loss; in that guise the contract of insurance would be a evidence, and the question if any of coverage of this decedent could be decided in light of its terms.
As it is, the matter must be disposed of by way of examining the report of the Deputy Commissioner to whom the policy was not submitted.
The question for decision is the frequently controverted one of whether Anderson was an 'officer or member of a crew of a vessel' so as not to fall within the jurisdiction of the Deputy Commissioner under this Act.
The order under review recites:
(1) That the employer is a common carrier engaged in the transportation of freight by water in and about this harbor. The testimony shows that in addition the Lexington went as far as New Haven, Bridgeport, Greenwich, Troy and Albany.
(2) That Anderson was employed as Captain aboard the Lexington which was without means of self-propulsion and steering apparatus, the dimensions of which were 115 x 32 1/2 (depth of sides not stated). This vessel had a cargo capacity of 400-450 tons.
There was a cabin on deck, equipped with a bunk, blanket, stove, cooking utensils and a clothes closet.
(3) The lighter was equipped with a gasoline hoist for loading and discharging cargo, which was operated when necessary by the decedent. The testimony as to the frequency of this service is vague, but probably means that on occasion when taking cargo from a dock, other than barrel cargo which would be rolled or trucked, the gasoline hoist was used, if there was no hoist on the dock.
(4) That the primary and principal duties of the decedent were
(a) supervision of the loading and unloading of cargo on the lighter to secure proper stowage;
(b) to check cargo on the dock, and obtain receipts and B/Ls.