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EMPLOYERS' MUT. LIAB. INS. CO. v. MCLELLAN

October 6, 1969

EMPLOYERS' MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Insurance Carrier, and the Flying Tiger Line, Inc., Employer, Plaintiffs,
v.
John D. McLELLAN, Jr., Deputy Commissioner, Second Compensation District Bureau, Foreign Compensation District, United States Department of Labor, and John Johnstone, Defendants



The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

 This is an action to review and set aside an award of Workmen's Compensation death benefits in favor of defendant Johnstone, father of the decedent employee. The award was made by a Deputy Commissioner of the Bureau of Compensation pursuant to the Longshoremen's and Harbor Workers' Compensation Act as amended, 33 U.S.C. § 901 et seq., as made applicable to employment at certain defense base areas and elsewhere by the Defense Base Act as amended, 42 U.S.C. §§ 1651-1654. Both sides now move for summary judgment pursuant to Rule 56, F.R.Civ.P., on the record before the Deputy Commissioner.

 The decedent employee, James M. Johnstone, was a flight engineer on a Flying Tiger Line airplane which crashed and burned at Adak, Alaska, en route from Travis Air Force Base, California, to Kadena Air Base, Okinawa. The flight was performed under contract between the employer, Flying Tiger Lines, and the Government for services in the transportation of cargo to the defense establishment in Okinawa. The crash occurred when the plane attempted to land for refueling at the United States Air Station at Adak and thus the plane never reached its overseas destination. Decedent was trapped in the plane and died the same day from burns he received.

 Plaintiffs, the employer and its insurance carrier, attack the award on two main grounds, contending

 
(1) that the contract between the Government and the employer for services in the transportation of cargo between the continental United States and Okinawa was not within the coverage of the Defense Base Act as it extended the provisions of the Longshoremen's and Harbor Workers' Compensation Act and therefore the Deputy Commissioner had no jurisdiction over the claim; and
 
(2) that there is no substantial evidence in the record as a whole to support the Deputy Commissioner's decision that the claimant father (a) was partially dependent on the decedent employee at the time of death and (b) was entitled to continuing payments of death benefits.

 42 U.S.C. § 1651(a)(4) provides, in part, that the Longshoremen's and Harbor Workers' Compensation Act, as amended, applies in respect to the injury or death of any employee engaged in any employment "under a contract entered into with the United States * * * where such contract is to be performed outside the continental United States * * * for the purpose of engaging in public work, * * * but nothing in this paragraph shall be construed to apply to any employee of such contractor or subcontractor who is engaged exclusively in furnishing materials or supplies under his contract."

 Plaintiffs contend that the contract in question was not entered into for the purpose of engaging in public work. The statute defines "public work" as "any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project." 42 U.S.C. § 1651(b)(1). In my view, the legislative history and the case law plainly indicate that the statutory definition of public work is sufficiently broad to encompass the activities in the case at bar.

 In Republic Aviation Corp. v. Lowe, 69 F. Supp. 472 (S.D.N.Y.1946) the plaintiff employer brought an action, as in this case, to set aside a compensation award made under the Defense Bases Compensation Act. The plaintiff employer, a manufacturer of aircraft, had contracted with the United States Army to furnish technical representatives and test pilots to the Government to instruct in and assist with the assembly, servicing, alteration and repair of the aircraft manufactured by the employer. The deceased was killed on the island of Ia Shima while performing services for the employer as a test pilot under the contract. At the time of the suit the statute defined "public work" as "any fixed improvement or any project involving construction, alteration, removal, or repair for public use of the United States or its Allies, including but not limited to projects in connection with the war effort, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project." The court held that a liberal construction of the statute was required and that a public work, within the meaning of the statute, was involved.

 The statutory definition of the term "public work" was amended to its present form in 1958, in order to clearly indicate that movable projects, including service projects, were within the coverage of the statute. S.R.No.1886, 85th Congress, 2nd Session; U.S.Code Cong. & Admin.News 1958, p. 3321.

 Since the amendment of the statute several decisions have approved a liberal reading of the phrase "public work" to more clearly carry out the remedial purposes of the statute. In Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46 (9th Cir. 1966), the decedent, an airplane pilot, was killed when his plane crashed while transporting military personnel from Travis Air Force Base in California to Vietnam via Manila, pursuant to a contract between his employer and the Government. Relying in part on the Republic Aviation case, supra, and the subsequent legislative changes in the statute, the court held that "section 1651(b)(1) [was] sufficiently broad to encompass the type of employment in which the applicant's decedent was involved." 370 F.2d at 49.

 In Alaska Airlines, Inc. v. O'Leary, 216 F. Supp. 540 (W.D.Wash.1963), five crew members of plaintiff's aircraft were killed when the plane crashed at Shemya, Alaska, en route to Tachikawa Air Force Base, Japan, from Travis Air Force Base, California. The plane was operating pursuant to a contract between the decedent's employer and the Military Air Transport Service which called for the transportation of Government-owned material to Japan. The court held that the contract was one to be performed for the purpose of engaging in public work.

 The contract in the case at bar which provided for the transportation of cargo and passengers to Kadena Air Base, Japan, was plainly a contract entered into for the purpose of engaging in public work and thus comes within the coverage of 42 U.S.C. § 1651(a)(4). The employer's contention that it was engaged exclusively in furnishing materials or supplies under the contract and thus not subject to the provisions of the Act is not persuasive. The employer provided the service of air transport, an activity clearly within the coverage of the Act. It did not manufacture or otherwise furnish materials or supplies except that it quite naturally furnished the aircraft necessary to fulfill its primary obligation of air transport. It cannot be supposed that when Congress said those engaging exclusively in furnishing materials or supplies are not covered by the Act it meant to exclude contracts such as that under consideration. This view is reinforced by the Congressional desire, expressed in the legislative history, to include service projects. Accordingly, I hold that the contract between the employer and the Government was entered into for the purpose of engaging in public work.

 Plaintiffs next argue that the contract was not to be performed outside the continental United States and for that reason not subject to the coverage of the Act. The flight originated at Travis Air Force Base, California, and was destined for Kadena Air Force Base, Okinawa. However, death occurred in the United States when the plane crashed in Alaska. It is apparent that the contract was to be performed outside the continental United States within the meaning of the statute. While it may be that performance was to take place partially within the United States in that loading of the aircraft would necessarily take place here, the purpose of the contract was to transport supplies outside of the continental United States. The performance within the United States, while necessary, was incidental in contrast to the performance without the United States. In any event, the statute does not say that all aspects of performance under the contract have to occur outside of the continental United States. Plaintiffs have advanced no reason why Congress would have sought to exclude an accident occurring under ...


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