Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
Before BUFFINGTON and DAVIS, Circuit Judges, and FORMAN, District Judge.
This is an appeal from a final decree of the District Court sitting in admiralty which dismissed the libel filed by Mincey Doll against the Scott Paper Company, hereinafter called the Paper Company.
Doll is seeking to recover damages for injuries sustained by him while he was engaged in loading a lighter owned by the Paper Company. The Tidewater Terminal Company, hereinafter called the Terminal Company, and the Quaker City Contracting Company, hereinafter called the Contracting Company, were joined as parties defendant.
The question presented is whether or not the defendants (or any one of them) are liable to Doll in tort because of any negligence on their part that caused his injuries. The Contracting Company has admitted that it is liable to pay compensation to Doll under either the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, or the Pennsylvania Workmen's Compensation Act, 77 P.S. Pa. § 1 et seq. All of the defendants, however, have denied liability in tort.
The Paper Company entered into a contract with the Terminal Company under the terms of which the latter agreed to furnish the Paper Company with the services of stevedores to load its ships. The Terminal Company arranged with the Contracting Company that the actual work of loading would be done by it (the Contracting Company) and its employees. Doll was a stevedore in the employ of the Contracting Company.
On April 25, 1934, Doll, along with other employees of the Contracting Company, was engaged in loading a lighter owned by the Paper Company with bales of wood pulp weighing between 300 and 400 pounds. The Contracting Company was in full charge of the loading and, as had been its custom, it furnished all of the appliances used in the work. In the morning of that day it moved the bales from the wharf to the lighter by means of a roller conveyor. In the afternoon, however, it used steel plates about three to four feet wide and five to six feet long as gangplanks, one end of which rested on the pier and the other on the boat.Over these the stevedores carried the bales upon the boat in trucks or hand drays. The plates were not fastened in any way.
Doll was crossing one of these gang-planks in the course of his work when the end resting on the dock slipped off and caused him to fall down between the lighter and the pier. As a result, he sustained injuries for which he is now seeking to recover.
The District Court, in its opinion, said: "As libellant is represented by very capable and experienced counsel we can safely accept his analysis of the case. He has dropped the Terminal Company from the case. He concedes that the Quaker City Company is not liable in this form of action. This compels him to limit his claim to one against the Scott Company alone."
Apparently relying on the above statment that they were not to be held liable in this form of action by Doll, neither the Terminal Company nor the Contracting Company filed briefs with this court on appeal. Wishing, however, to have more information on the possible liability of these companies, we ordered a reargument, at which all parties appeared and presented briefs. The facts brought out on reargument have convinced us that the District Court was correct in finding that neither the Terminal Company nor the Contracting Company could be held liable in this form of action.
The Terminal Company is not liable for it was not engaged in any way with the actual loading of the lighter and was not guilty of any act of negligence upon which liability could be based, nor did Doll charge it with liability.
The Contracting Company is also exempt from liability in tort, for the reason that the Longshoremen's and Harbor Workers' Compensation Act specifically provides that the liability of an employer under this act "shall be exclusive and in place of all other liability of such employer to the employee, * * * except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, * * * may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages." 33 U.S.C.A. § 905; Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598. The Contracting Company, employer, did not fail "to secure payment of compensation," but has always been ready, able, and willing to pay, and therefore is liable under the above act, but its ...