AVONDALE MARINE WAYS, INC.
v.
HENDERSON, DEPUTY COMMISSIONER, ET AL.
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Per Curiam.
The judgment is affirmed. Davis v. Department of Labor, 317 U. S. 249; Kaiser Co. v. Baskin, 340 U. S. 886; Baskin v. Industrial Accident Commission, 338 U. S. 854; Bethlehem Steel Co. v. Moores, 335 U. S. 874.
Mr. Justice Reed took no part in the consideration or decision of this case.
Mr. Justice Douglas,
concurring.
I do not think this case belongs in the “twilight zone” of Davis v. Department of Labor, 317 U. S. 249, 256. Recovery was allowed under the Longshoremen’s and Harbor Workers’ Compensation Act for a death which occurred on a barge drawn up for repairs on a marine railway. Norton v. Vesta Coal Co., 63 F. 2d 165, was such a case and Judge Woolley dissented from a holding that a marine railway was not included in the statutory language, “any dry dock.”
As Judge Woolley explained, there are three kinds of dry docks. (1) A floating dry dock, as its name makes clear, floats on the water, the vessel resting on the bottom of the dry dock after the water has been removed. (2) A graven dry dock is dug into the land. The vessel floats in but rests on land once the water has been pumped out. (3) Finally there is the marine railway, on which the vessel is drawn out of the water, instead of the water being drawn away from the vessel. A ship is no more and no less on land when it rests in a graven dry dock than when it rests on a marine railway. The three types of dry docks are not different in kind; functionally they are the same. And I see no basis for concluding that Congress treated one differently from the others for the purposes of this Act.
Mr. Justice Burton concurs in the affirmance of the judgment of the Court of Appeals but does so on the ground relied upon by that court and by the District Court. This was that the Deputy Commissioner, in making the award, acted within the terms of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1426, 33 U. S. C. § 903 (a), in that the decedent, at the time of receiving his fatal injury, was engaged in cleaning a tank of a barge located on the ways of a marine railway, by means of which the barge had been hauled out of the Mississippi River for repairs. They held that his death resulted “from an injury occurring upon the navigable waters of the United States (including any dry dock)” as those terms are used in such Act. Avondale Marine Ways v. Henderson, 201 F. 2d 437, following Maryland Casualty Co. v. Lawson, 101 F. 2d 732, and Continental Casualty Co. v. Lawson, 64 F. 2d 802.
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Calbeck v. Travelers Ins. Co., 370 U.S. 114 (U.S. 1962)…Act might have applied without regard [*129] to whether the situation might be “maritime but local” plainly implies a rejection of any reading of § 3 (a) to exclude coverage in such situation. The issue in Avondale Marine Ways, Inc., v. Henderson, 346 U. S. 366, was whether compensation was available under the Longshoremen’s Act for the death of an employee killed while engaged in the repair of a vessel which was then physically located on land, but on a marine railway. Since a marine railway was considere…
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Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (U.S. 1980)…, and discussed at length its proposition that an injury within the “maritime but local” sphere might be compensated under either state or federal law. 370 U. S., at 128-129. So, too, Calbeck’s explanation of Avondale Marine Ways, Inc. v. Henderson, 346 U. S. 366 (1953), indicated that although an injury might be compensable under the Longshoremen’s Act, “there is little doubt that a state compensation act could validly have been applied to it.” 370 U. S., at 129. Even more significantly, Calbeck’s ruling th…
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Nations v. Morris, 483 F.2d 577 (5th Cir. 1973)…state compensation remedies could be applied to new construction under the “maritime but local” rubric more than forty years before Calbech in Grant Smith-Porter Ship Co. v. Rohde, supra. . See also, Avondale, Marine Ways, Inc. v. Henderson, 1953, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77, 1953 A.M.C. 1990. . The shoreward march of the Jensen line seems to have been halted with Nacerima Operating Co., Inc. v. Johnson, 1969, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371, 1969 A.M.C. 1967 which reversed Marine…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Dep't of Labor & Indus. of the State of Wash., 317 U.S. 249 (U.S. 1942)
- Cont'l Cas. Co. v. Lawson, 64 F.2d 802 (5th Cir. 1933)
- Wheeler v. Reid, 335 U.S. 874 (U.S. 1948)
- Md. Cas. Co. v. Lawson, 101 F.2d 732 (5th Cir. 1939)
- Avondale Marine Ways, Inc. v. Henderson, 201 F.2d 437 (5th Cir. 1953)
- Baskin v. Indus. Accident Comm'n, 338 U.S. 854 (U.S. 1949)
- Garsson v. United States, 338 U.S. 854 (U.S. 1949)
- McGarty v. Massachusetts, 340 U.S. 886 (U.S. 1950)
- Norton v. Vesta Coal Co., 63 F.2d 165 (3d Cir. 1933)
- O'Donovan v. United States ex rel. De Lucia, 340 U.S. 886 (U.S. 1950)