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June 15, 1971

Michael J. COLLURA et al., Defendants

Zavatt, District Judge.

The opinion of the court was delivered by: ZAVATT

ZAVATT, District Judge.

Plaintiff and the defendants Michael J. Collura (Collura) and Aetna Insurance Company (Aetna) move for summary judgment in this case concerning a Compensation Order and Award of the Defendant Collura, Deputy Commissioner of the Second Compensation District of the United States Department of Labor, Bureau of Employees' Compensation (the Bureau), entered on July 22, 1969 pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.

 Plaintiff, Rex Investigative and Patrol Agency, Inc. (Rex), is a small family-owned corporation in the detective and watchmen's service business. At all times relevant to the resolution of the issues involved on this motion, Rex was performing watchmen's services for Merritt-Chapman and Scott Corporation (Merritt-Chapman), to wit, patrolling the deck of and pier adjacent to Merritt-Chapman's vessel, the CURB, which docked at Pier 22, Staten Island, New York. In supplying said services, Rex employed the defendant Wesley Sarco (Sarco) who, on October 15, 1967, while on patrol aboard the CURB, sustained an injury to the lower back.

 Sarco filed a claim with the New York State Workmen's Compensation Board, which was denied on March 15, 1968 in a "Notice of Decision" which contained the notation "closed disallowed no jurisdiction." Thereafter, on March 25, 1968, Sarco filed a claim for compensation with the Bureau. With reference to this claim, several informal conferences with the Deputy Commissioner were scheduled, on notice to Rex, none of which it attended. For this reason, the case was set down for a formal hearing on May 13, 1969. The alleged invalidity of the order and award that issued following that hearing is the basis for the plaintiff's motion.

 The Order of the Deputy Commissioner found, in relevant part, that the defendant Sarco, while performing services as a watchman aboard the CURB, was in the employ of the plaintiff; that, in the performance of said duties, he was injured while the vessel was afloat upon the navigable waters of the United States, within the jurisdiction of the United States Workmen's Compensation Bureau; that his average weekly wage at the time of the injury was $131.30 per week; that as a result of the injury he was wholly disabled from October 16, 1967 to March 10, 1968, for which he was entitled to $70.00 per week; that as of March 11, 1968, the temporary total disability ended, and Sarco became temporarily and partially disabled, preventing Sarco from returning to his duties as a watchman; that, nevertheless, he continued working as a porter for which he earned $100.00 per week until July 20, 1969; that for this period he was entitled to 71 weeks of compensation at the rate of two-thirds the difference between his average wage at the time of the accident and his wage subsequent thereto, or $20.87 per week; that the total award was $2,951.77; and, further, that the employer had not secured compensation insurance for liability under the Act. Because of his finding that Rex was an "uninsured employer," the Deputy Commissioner directed the employer (and not the defendant Aetna Insurance Company) to pay the full amount of the award to Sarco.

 The Plaintiff's Contentions

 In support of its motion for summary judgment, plaintiff makes the following claims:

 (1) The Compensation Order is invalid because the Deputy Commissioner lacked jurisdiction over the claim for compensation;

 (2) Plaintiff was denied due process of law at the hearing because (a) it was unrepresented by counsel and (b) the hearing was held without the presence of Aetna, an allegedly necessary party;

 (3) The Deputy Commissioner erred in directing the Order against the plaintiff alone because plaintiff's liability for compensation was covered by an insurance policy with Aetna;

 (4) The Deputy Commissioner erred in his computation of the compensation award;

 (5) The Order was invalid because the Deputy Commissioner's findings were not supported by substantial evidence.

 In its first claim, plaintiff concedes that Sarco was aboard the CURB at the time of the accident but claims that his presence was merely a "temporary incident" of his employment on the pier and, therefore, Sarco's claim was not within federal cognizance. This conclusion is erroneous. 33 U.S.C. § 903 requires only that the injury occur upon the navigable waters of the United States in order for compensation to be payable under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), not the employment itself. The Deputy Commissioner quite properly found, on the undisputed evidence in the record, that the injury to Sarco occurred while the CURB was afloat upon navigable waters. In addition, even if Sarco's employment were to be deemed primarily land-based, his temporary presence aboard the vessel would be sufficient to sustain jurisdiction under the Act. Parker v. Motor Boat Sales, 314 U.S. 244, 62 S. Ct. 221, 86 L. Ed. 184 (1941). Furthermore, it would seem that even if the place of employment, rather than the place of injury, is the test for jurisdiction under the statute, there is some basis for concluding that a good deal of Sarco's responsibility was concerned with patrolling the deck of the CURB (16* ). Finally, it would also appear that inherent in the New York State Workmen's Compensation Board's order dismissing for lack of jurisdiction was the finding that this claim properly belonged before a federal, rather than a state, agency.

 Plaintiff's second and most serious argument concerns the alleged denial of due process in the proceedings before the Deputy Commissioner arising from plaintiff's lack of representation by counsel at the hearing. It is a fundamental principle of constitutional law that the essential elements of due process are adequate notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). As to the right to counsel, however, plaintiff misconceives the concept of due process. Plaintiff cites a long line of cases concerning the right to counsel at various ...

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