Summary
In Hagens v. United Fruit Co., 2 Cir., 135 F.2d 842, the plaintiff attempted to do essentially the same as the present plaintiff is doing. He brought an action under the Jones Act after having received an award under the Longshoremen's Act and accepting all benefits thereunder.
Summary of this case from Biggs v. Norfolk Dredging CompanyOpinion
No. 253.
May 27, 1943.
Appeal from District Court of the United States for the Southern District of New York.
Action under the Jones Act, 46 U.S.C.A. § 688, by Nico Hagens against the United Fruit Company. From an order dismissing the complaint, plaintiff appeals.
Affirmed.
Plaintiff brought suit under the Jones Act, 46 U.S.C.A. § 688, for injuries sustained while he was in the employ of defendant. The defendant moved to dismiss on the ground that the court had no jurisdiction in that plaintiff, at the time of his injuries, was not a member of the crew of any vessel; that his remedy, if any, fell within the scope of the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and that the Compensation Commission, appointed pursuant to that Act, had by a Deputy Commissioner previously taken jurisdiction of the plaintiff's claim and made an award of compensation to him. In support of its motion, defendant filed a certified copy of the award which contained the finding of fact that the plaintiff was injured "while performing service as a member of the shore staff for the employer and engaged in shifting the S.S. `Mayari' from drydock." The trial court dismissed the action and from that order of dismissal plaintiff appeals.
Paul C. Matthews, of New York City, for appellant.
W. Dale Williams, of New York City (Thomas H. Walker, of New York City, of counsel), for appellee.
Before SWAN, CLARK, and FRANK, Circuit Judges.
The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 903(a) provides that no compensation shall be payable under that Act "in respect of disability or death of * * * a member of a crew of any vessel * * *". § 905 provides: "The liability of an employer * * * shall be exclusive and in place of all other liability of such employer to the employee * * *." The award, under the Act, if the commissioner had jurisdiction, is therefore a bar to the present suit because no such award could be made validly without a determination that plaintiff was not a member of the crew. Plaintiff's position however is that the Deputy Commissioner did not, in his findings, explicitly state that plaintiff was not a member of the crew but merely that he was injured "while performing service as a member of the shore staff for the employer and engaged in shifting the S.S. `Mayari' from drydock." Plaintiff contends that, absent an explicit finding that he was not a member of the crew, the award in the present suit can be disregarded since the deputy commissioner's findings do not affirmatively show that he had jurisdiction. We cannot agree. In the first place, the finding made, although not literally in the wording of the statute, indicates that the Commissioner did find that plaintiff was not a member of the crew; we think that plaintiff is over meticulous in urging that "a member of the shore staff" might mean that the plaintiff was nevertheless a member of the crew. But aside from that, and more important, is the fact that we do not consider a finding as to non-membership in the crew to be what has been called a finding of a "jurisdictional fact." See South Chicago Coal Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732, affirming 7 Cir., 104 F.2d 522 and inferentially holding erroneous Maryland Casualty Co. v. Lawson, 5 Cir., 94 F.2d 190. Consequently the determination by the Commissioner comes within the general rule that there is a presumption of jurisdiction unless the absence of jurisdiction affirmatively appears on the face of the record, as it does not here. As a consequence, the award cannot be collaterally attacked.
Cf. Kraft v. A.H. Bull S.S. Co., D.C., 28 F. Supp. 437, 439, 440.
Swofford v. International M.M. Co., 72 App.D.C. 225, 113 F.2d 179, 182; Dennison v. Payne, 2 Cir., 293 F. 333, 341; Hoffman v. New York, N.H. H.R. Co., 2 Cir., 74 F.2d 227, 230; Chicago, R.I. P. Ry. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265; Baldwin v. Iowa Traveling Men's Ass'n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Chicot Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L. Ed. 329; Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 84 L. Ed. 85; Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297; Young Realty Co. v. Darling Stores Corp., 2 Cir., 128 F.2d 556; Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, affirmed 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. ___, January 11, 1943; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 184, 59 S.Ct. 160, 83 L.Ed. 111; Rochester Telephone Corp. v. United States, 307 U.S. 125, 144-146, 59 S. Ct. 754, 83 L.Ed. 1147; see Moore and Adelson, The Supreme Court: 1938 Term, 26 Va.L.Rev. 697, 754-758 (1940); Stason, Timing of Judicial Redress From Erroneous Administrative Action, 25 Minn.L.Rev. (1940) 560; Larson, The Doctrine of `Constitutional Fact,' 15 Temp.U.L.Q. (1941) 185; note, 24 Va.L. Rev. 653 (1938).
Affirmed.