The opinion of the court was delivered by: BRIEANT
Defendants McMullen and McLellan move for summary judgment, pursuant to Rule 56, F.R. Civ. P., dismissing the complaint here, and granting judgment on McMullen's counterclaim affirming the award of the Deputy Commissioner of the United States Employee's Compensation Commission, for statutory penalty for failure to pay or stay the award, and counsel fees to be awarded against plaintiffs for instituting these proceedings without reasonable ground.
Plaintiff Overseas African Construction Corporation (hereinafter "Employer") is a Delaware corporation engaged in just those activities which its name implies. Plaintiff St. Paul Mercury Insurance Company ("St. Paul") issued to the Employer's assignor, and endorsed for Employer, a certain insurance policy the effect of which is at issue here.
On July 21, 1972, plaintiffs instituted this action, pursuant to § 21 of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 921) and the Defense Base Act (42 U.S.C. § 1651 et seq.) to enjoin enforcement of a compensation award dated June 22, 1972 made by defendant McLellan in his official capacity ("the award"), setting aside the order, and for other relief.
Subject matter jurisdiction exists under 33 U.S.C. § 921(c) and 28 U.S.C. § 1337.
There are no contested factual issues. Our jurisdiction is limited to a review of the proceedings before the Commissioner.
Claimant Eugene McMullen, since deceased, was hired in New York by Employer as Office Manager and Chief Accountant, pursuant to a written contract dated May 14, 1968.
He was assigned to a project at Chisimaio, Somali Republic, Africa, during the period from May 1968 to December 1968. There, his Employer was engaged in a project supervised on a full-time basis, solely by the U.S. Army Corps of Engineers, and financed entirely by the Agency for International Development ("A.I.D.") of the United States Government, which paid out development loan funds directly to the contractor, for the account of the Government of the Somali Republic, as partial performance was certified to it by the Corps of Engineers.
The loan was designated as "Chisimaio Port and Municipal Facilities Loan No. 649-H-002". The Employer was engaged in Phase II of that project. The initial element of scope of work was construction of a settling tank for water drawn from a nearby river, and installation of a pipe-line from the tank, to the town of Chisimaio, and the port. But the single project also included additions to existing port facilities at Serpenti Island, near Chisimaio. The scope of work there comprised a new cargo shed, an overhead conveyor to handle cargo, and placing of a quantity of rip rap as reinforcement of a breakwater. The work was difficult; the climate inhospitable. Tension arising out of thefts of equipment and inventory under McMullen's charge combined with the long hours and hot humid weather to produce a severe and disabling case of work related neurodermatitis, on his hands, feet and elsewhere. At least, so the Deputy Commissioner found, and there is substantial evidence in the record to justify such finding. He was treated locally, and then hospitalized in Nairobi General Hospital in Kenya on two occasions in August and December 1968.
Ultimately in December, McMullen was repatriated for reasons of health, at a time when his skin rash was so malodorous as to result in his being put off the aircraft at Rome, Italy, while en route to the United States.
His skin condition never fully cleared up; he remained unemployed subsequent to January 1, 1969, until his death on January 30, 1972.
The policy issued by St. Paul provided that:
"Item 3. Coverage A of this policy applies to the workmen's Compensation law and any occupational disease law of each of the following states: VOLUNTARY ...