Avondale Marine Ways, Inc. v. Henderson (Two Cases)

201 F.2d 437, 1953 U.S. App. LEXIS 3883

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 29, 1953
• Docket: 14056_1
• Status: Published

Opinions

HUTCHESON, Chief Judge.

Filed under the provisions of the Longshoremen’s Act of March 4, 1927,¹ these suits were brought to enjoin and set aside as not in accordance with law, compensation orders issued by the deputy commissioner in favor of the dependents of two of appellant’s employees who had been killed in an explosion² on a barge upon which they were working.

The claim of appellant was- that the place where, and the circumstances under which, the injuries occurred are such that the Louisiana State Compensation Act, LSA-R.S. 23:1021 et seq., furnished the exclusive remedy; that the Longshoremen’s and Harbor Workers’ Compensation Act was therefore inapplicable; and that the deputy commissioner was without jurisdiction or authority to make an award. In short, its position was that the language, “navigable waters of the United States, including any dry dock”, as those words are used in Section 3(a) of the Act, 33 U.S.C.A. § 903(a) dpes not extend to and include the marine railway.

The commissioner, as vigorously contending that a marine railway is a dry dock within the meaning of the Act, filed a motion for summary judgment.

The district judge, on the authority of two cases decided by this court, Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, and Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, granted the motion and entered judgments dismissing the suits with costs.

Here seeking their reversal, appellant concedes that the decisions of this court, on which the district judge, relies, do- support the judgments. It insists, however, that these cases were wrongly decided; that they have been in effect overruled by later decisions of the Supreme Court; and that this court should now disavow them.

We cannot agree with these views. Quite to the contrary, we are of the clear opinion that the cases were when decided well decided; that no case since decided furnishes any sound basis for a different view; and that many cases which have been decided since³ have given the questioned decisions full support and approval.

The judgments appealed from were, rightly -entered. They are affirmed.

1 . 44 Stat. 1424, 33 U.S.C.A. § 901 et seq.

2 . By stipulation or by uneontroverted testimony, it was established that, at the time of the explosion the barge had been hauled out of the Mississippi River on the cradle of a marine railway, and that both cradle and barge at the time of the explosion and for some time previously thereto had been at rest ashore at a point some 400 feet from the water.

3 . DeBardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481; Newport News Shipbuilding & Dry Dock Co. v. O’Hearne, 4 Cir., 192 F.2d 968; Massachusetts Bonding & Insurance Co. v. Lawson, 5 Cir., 149 F.2d 853; Western Boat Bldg. Co. v. O’Leary, 9 Cir., 198 F.2d 409.