Opinion
Earl J. Walker, of Chicago, Ill., for plaintiff.
B. S. Quigley, of Chicago, Ill., for defendant.
The Stipulation of Facts is as follows:
It is hereby stipulated by and between the parties hereto that on the date of the plaintiff's injury and prior thereto, the defendant herein Great Lakes Dredge and Dock Company was the owner of diesel tugboat John F. Cushing, a vessel of more than twenty tons burden; that said defendant at said times operated said tugboat and that one Michael Bishop, a licensed Master, was in control thereof as Captain; that said Michael Bishop had under his control and direction eight men, consisting in addition to himself of an engineer, oiler, two deckhands and three scow men, of which the plaintiff was one; that said tugboat was licensed by the United States Interior Department to operate upon the Great Lakes, its bays, harbors, and inland rivers;
That on and prior to said time the said defendant had entered into a contract with certain persons to remove earth, stone and other waste materials from the Chicago Subway, and to transport the same from the Chicago River in Chicago, and dump said waste materials into Lake Michigan some fifteen miles from shore; that for such purposes said defendant provided divers barges upon which said materials were loaded in the Chicago River by said third parties, and thereafter transported by said defendant through said river into Lake Michigan as aforesaid, and that in so doing two of said scows usually comprised a tow with said tugboat; that each of said scows were approximately 140 feet long and 35 feet wide.
That said Chicago River and Lake Michigan were navigable waters of the United States;
That said plaintiff herein had been employed by the defendant at various times beginning in 1925; that he was a certificated able seaman under license of the Chicago Board of Local Inspectors of the Department of Commerce of the United States, granted May 15, 1931, and that he was hired by the defendant as a scow man and was so acting on the day of his injuries; that he, with the other seaman under the directions of said Michael Bishop, would report each morning to said tugboat and would be taken thereon to the place where said scows were moored near Grand Avenue on the North Branch of the Chicago River; that said tugboat would be attached (some distance apart) by said seamen, including the plaintiff, to one of said scows or barges, by means of lines, or heavy cables, and that said tugboat by means of said lines would remove said scows from their moorings on the Chicago River as a tow, and proceed down the Chicago River, and while doing so the plaintiff was required to attach bridles and lines to said scows while the same were being navigated, and that the relative position and location of the tug and tow changed from time to time while proceeding down the river into the lake, requiring changes of said lines, bridles and cables, and that, thereafter, said tug and tow proceeded into Lake Michigan wherein changes were occasionally required due to wind and weather, both as
to the proximity of the tug and respective barges to each other and the speed of the tug; and that upon arriving at the place where dumping was to be made, the plaintiff and other scowmen were required to operate divers winches and other mechanical contrivances by which the loads in the several hatches were released and dropped into the lake, and thereafter plaintiff and other scowmen were required from time to time to alter and change the lines, bridles and cables while said tug and tow were returning to the river, and also to assist in the maneuvering of said tug from alongside to the prow of the various scows; that the plaintiff took orders from the Master of the tug; that said scows could not be navigated without plaintiff and his fellows or some one in their places; that the said plaintiff had nothing to do with the loading of said scows nor any duties upon land in that regard; that said trip in to the lake required approximately eight hours, during which time the plaintiff was employed exclusively thereon;
That the plaintiff herein, at the time of his injuries, was upon the head scow of the tow; that the tug was alongside and that the lines at said time were being changed about various positions where the same were fastened upon said scow and that the tug and tow were being maneuvered so that the said tug could be moved from alongside said scow to the prow thereof to proceed out into Lake Michigan, and while plaintiff was standing on the deck of the tug and was engaged in placing a bridle or line from the tug on a tow bits on the scow, the scow came alongside a dock, the bottom of which just cleared the scow, and plaintiff was caught and injured; that the defendant did not provide food or lodging aboard said tug or scows for the plaintiff and that said parties had not entered into written articles relating to plaintiff's employment.
The foregoing stipulation of facts is made to assist the court in passing upon a motion of the defendant to dismiss the suit for the reason that the plaintiff was not a 'member of the crew' but was a longshoreman; and without prejudice to the rights of the parties herein in case said motion be denied.
HOLLY, District Judge.
Plaintiff's action is for recovery for damages for injuries sustained, while engaged in rendering service to the defendant, allegedly through defendant's negligence. The question presented is whether under the stipulation of facts, plaintiff was a member of the crew or whether his remedy is under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.
I am of the opinion that he was a member of the crew. In the cases cited by defendant the plaintiff had no part in the navigation of the scows on which they were working. Here plaintiff's duties required to assist actively in the navigation.
The motion to dismiss will be denied.