Mrs. Gladys Noah v. Liberty Mutual Insurance Company

265 F.2d 547, 1959 A.M.C. 573, 1959 U.S. App. LEXIS 5121

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 10, 1959
• Docket: 17282
• Status: Published

Opinions

WISDOM, Circuit Judge.

The question before us is whether a longshoreman injured on navigable waters, or his dependent, may sue under the Louisiana Workmen’s Compensation Act, LSA-R.S. of 1950, 23:1021 et seq. The district court held that the federal Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., applied and dismissed the suit. A majority of the Court (Chief Judge Hutcheson and Judge Cameron) is for reversal.

Melvin Noah, a longshoreman, was loading pig iron on a ship docked in the Mississippi River at New Orleans. A barge was moored between the ship and the wharf. Noah fell from the barge and was drowned. There is no doubt that he was acting in the course of his employment or that he was a longshoreman. Noah’s mother, partially dependent on her son for support, brought suit in the Civil District Court for the Parish of Orleans under the state Workmen’s Compensation Act.¹ The appellee removed the case to the federal district court.

A majority of this Court is of the opinion that in view of the light Hahn v. Ross Island, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 casts on Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, Noah was a waterfront worker in the twilight zone. The plaintiff therefore may elect to bring suit under the state compensation law or the federal Longshoremen’s and Harbor Workers’ Compensation Act. Accordingly, the judgment below is reversed and the case remanded for trial.

1 . The plaintiff relies on Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, Richard v. Lake Charles Stevedores Inc., La.App., 1957, 95 So.2d 830, certiorari denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529, and Sullivan v. Travelers Ins. Co., La.App., 1957, 95 So.2d 834. In the recent case of Flowers v. Travelers Ins. Co., 5 Cir., 1958, 258 F.2d 220, this Court reviewed the authorities, including the two Louisiana cases, and held that the Longshoremen’s and Harbor Workers’ Act provided the exclusive remedy for workmen’s compensation when a ship repairman (welder) sustained an accidental injury while working on an ocean-going tanker in a floating dry-dock in Galveston harbor. The Flowers case was decided before the Supreme Court handed down its decision in Hahn v. Ross Island, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292.