Norton v. Vesta Coal Co.

63 F.2d 165, 1933 U.S. App. LEXIS 3352, 1933 A.M.C. 425

• Court: Court of Appeals for the Third Circuit
• Decided: January 26, 1933
• Docket: 4877
• Status: Published

Opinions

BUFFINGTON, Circuit Judge.

The status of this case is thus stated by the court below:

“This is an equity suit by the plaintiff, Vesta Coal Company, against Augustus P. Norton, Deputy Commissioner of the United States Employees’ Compensation of the 3rd District, in which the plaintiff is seeking to enjoin the enforcement of an award of compensation made to August J. Rahn, under the terms of the Longshoremen’s & Harbor Workers’ Compensation Act. The defendant has appeared and moved to dismiss the hill.

“The only question at issue under the facts set forth in the bill of complaint is whether or not the disability of Rahn resulted from an injury occurring ‘upon the navigable waters of the United States (including any dry dock).’ The hill discloses that on May 26,1930, August ,J. Rahn was a pipe-fitter in the employ of the plaintiff-corpora^ tion, and was injured that date while removing a cylinder-head from an engine in the plaintiff’s boat, the Steamer Warren Elsey, and that said injury was received while the Steamer Warren Elsey was not upon any navigable waters of the United States, or any dry dock; the boat had been entirely removed from the waters of the Monongahela River and was resting on the banks of said river, sustained and supported by pillars. The boat in question had been raised from the waters of the Monongahela River by a marine railway consisting of rails laid on a concrete foundation, whieh extended from the land into the water; eradles running on wheels were lowered down on these rails and placed under the boat in the water. The boat was then hauled up on these cradles by electric power to the dry land, the water running out of these cradles immediately, as they are open structures. After the boat was raised, the cradles were removed and the boat was blocked up. It appears that the boat was about seventy-five feet from the water’s edge. The plaintiff contends that these marine ways on which the Steamer Warren Elsey rested at the time of the accident to Rahn, are not in any proper sense of the word a dry dock within the meaning of that term, as used in Section 902 (4), Section 903 (a) of [33 USCA sections 2 (4), 3 (a) of] the Longshoremen’s & Harbor Workers’ Act.

“Commissioner Norton has held that these marine railways were a dry dock within the meaning of the Act. If the injury occurred on dry land and was not while the ship was in dry dock, then the compensation laws of Pennsylvania would apply in the instant case; if the injury was a maritime injury within the meaning of this Act, then the state statute would provide no relief, and the Longshoremen’s & Harbor Workers’ Act would be in force.”

That court, following Colonna’s Shipyard v. Lowe, 22 F.(2d) 843 (where the vessel was still in the cradle and not, as here, removed from the eradle and supported on pillars), held the federal act does not apply in this ease, and set aside the award. Thereupon the commissioner and the injured man took this appeal.

We here note the coal company is not seeking to avoid compensation to Rahn for his injury, hut contends such compensation should be under the Pennsylvania Workmen’s Compensation Act (77 PS § 1 et seq.).

The controlling federal statute involved provides the term “employer” means an employer any of whose employees are'employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock), and the eontehtion is that Congress meant to include in the term “dry dock” a marine railway. We cannot make such assumption or speculation. We know clearly what in common speech a dry dock is. We also know what, in common speech, a marine railway is. In this regard see The Professor Morse (D. C.) 23 F. 803. While they are used for a like purpose, it by no means follows they are interchangeable terms. A contract to build, or rent, a dry dock'would not be fulfilled in building a marine railway, and conversely, a contract to rent, or build, a marine railway would not be fulfilled by a dry dock. With these terms describing two different structures, it seems clear that, when Congress used the word “dry dock,” it meant a dry dock in the common acceptation of the term, and did not intend to include any other thing. We rest on firm ground when we take Congress at its word. We enter into a field of speculation when we impute to Congress an intent to include something it did not say it included. The mention of one of a class is the exclusion of others. So regarding, the judgment below is affirmed.