The opinion of the court was delivered by: GODDARD
This is a motion by libelant to strike the fifth separate defense in the answer filed by respondent, Hamilton Marine Contracting Company, Inc.; and to add Travelers Insurance Company as a party or to order Travelers to assign the cause of action for injuries suffered by libelant, to libelant.
Libelant filed this suit on June 12, 1952 to recover for injuries allegedly suffered by him, as a longshoreman employed by Northern Dock Company, while loading the S/S Hoegh Silvercloud on September 6, 1945. Libelant alleges that Hamilton negligently failed to fasten a catwalk they constructed and that it collapsed while he was on it, thereby causing his injury.
In July, 1952, one of the respondents, Kerr Steamship Company, excepted to the libel on the ground that libelant had elected to, and did, receive a compensation award under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950. Judge Sugarman, of this district, found that libelant had made such an election and received a compensation award, and any cause of action against a third party was thereby assigned to his employer. The libel was dismissed as to Kerr on December 11, 1952, 110 F.Supp. 933. An appeal from this decision is pending.
Hamilton, in its answer, denies any negligence, alleges contributory negligence and laches and its fifth defense asserts that by virtue of libelant's election, the cause of action was assigned to his employer, Northern, and/or its insurance carrier, Travelers.
Libelant asserts that Travelers is the insurance carrier for both Northern and Hamilton and says that Travelers 'has failed or refused to sue the third parties responsible for libelant's injuries as it would in effect be suing itself, being also the insurance carrier for the Hamilton Marine, and thereby failed and breached its obligation as trustee for libelant.' Libelant thus seems to assume that he may sue, or require Travelers to sue.
Title 33 U.S.C.A. § 933, provides:
'Compensation for injuries where third persons are liable.
'(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, * * * to receive such compensation or to recover damages against such third person.
'(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.
'(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.
'(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:
'(1) The employer shall retain an amount equal to --
'(A) the expenses incurred by him in respect to such proceedings or compromise * * *;
'(B) the cost of all benefits actually furnished by him to the employee ...