Before LUMBARD, Chief Judge, and MAGRUDER and WATERMAN, Circuit Judges.
Alfonse Marchica, a longshoreman employed by Monti Marine Corporation, was injured in the course of his employment on March 18, 1958 aboard defendant's vessel "General Buckner." On November 16, 1959 Marchica accepted compensation from plaintiff Liberty Mutual Insurance Company, his employer's workmen's compensation insurance carrier, under an award pursuant to Section 33 (33 U.S.C.A. § 933) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. On March 7, 1960, less than four months after Marchica's acceptance of the compensation award, but only eleven days prior to the expiration of a two-year time bar within which the United States could be sued for having caused Marchica's injuries,*fn1 plaintiff instituted an action against the defendant United States, alleging that Marchica's injuries were caused by defendant's negligence and the unseaworthiness of its vessel. Upon defendant's motion Judge Bartels of the United States District Court for the Eastern District of New York dismissed the action as prematurely brought. Plaintiff appeals. The sole question on appeal is whether under the provisions of 33 U.S.C.A. § 933 plaintiff was empowered to commence this action on March 7, 1960.
Section 933(h) provides that: "Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section." Therefore, once appellant made compensation payments under the award to Marchica it was subrogated to the rights against third persons possessed by the employer it had contracted to cover.
Sections 933(a) and (b) provide:
"§ 933. 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 or a person or persons in his employ is liable in damages, he need not elect whether 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 entiled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award." (Emphasis supplied.)
In his opinion below in this case, Liberty Mutual Ins. Co. v. United States, D.C.E.D.N.Y.1960, 183 F.Supp. 944, Judge Bartels construed the emphasized language to mean that the injured employee had an exclusive right to sue during the six months subsequent to a compensation award, and the statutory assignment of the employee's cause of action gave the employer no right to sue until the termination of this six month period. We are in accord with this interpretation. It is supported by the legislative history of the section as that history is set out and discussed by the lower court at 183 F.Supp. 945-946. We hold that during the six months' period within which the employee retains the cause of action neither the employer nor its subrogated compensation carrier may initiate an action against an alleged third party tort-feasor, but of course can obtain reimbursement for compensation payments out of any sum the employee may recover in a suit initiated by him during that time. International Terminal Operating Co. v. Waterman Steamship Co., 2 Cir., 1959, 272 F.2d 15, certiorari denied 1960, 362 U.S. 919, 80 S. Ct. 671, 4 L. Ed. 2d 739.
Appellant complains that this interpretation of the statutory language is unrealistic for if, as here, an injured employee does not choose to bring suit against the third party and does not accept a compensation award until within six months of the time-bar expiration date, the employer and its insurance carrier are forever prevented from obtaining any reimbursement from the tortfeasor. We recognize this to be so, but the unfortunate position in which plaintiff finds itself to be is not a unique one. See, e.g., Hartford Accident & Indemnity Co. v. Eastern Air Lines, D.C.S.D.N.Y.1957, 155 F.Supp. 263; Hartford Accident & Indemnity Co. v. United States, D.C.S.D.N.Y.1955, 130 F.Supp. 839. If relief from operation of the statute is indicated it must be sought from the Congress and not from the courts.
LUMBARD, Chief Judge (dissenting).
Since I think that the plaintiff was entitled to maintain its suit against the United States, the alleged tort-feasor, in order to vindicate its claim as a partial subrogee of the rights of the injured longshoreman, I would reverse the order of the district court which granted summary judgment and dismissed the complaint.
My brethren here deny relief to the plaintiff-insurer on the ground that the employer (to whose rights the insurer is subrogated), under the recently enacted amendment to 33 U.S.C.A. § 933(b), is assigned the rights of the employee only upon the expiration of six months from the date of the compensation award. What they overlook entirely is the equitable doctrine of subrogation, which grants the employer ...