The opinion of the court was delivered by: AVIS
Under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901, et seq., the deputy commissioner, named in title, on September 29, 1938, made an award against petitioner and in favor of respondent Alexander Benedetti, as the result of injuries sustained by Benedetti while in the employ of the petitioner.
The controversy brought to this court by petitioner is based upon the finding of the deputy commissioner as a fact that the injuries sustained by Benedetti were incurred "while performing service for the employer upon the navigable waters of the United States, * * * while he was employed as a fisherman and utility man in connection with the vessel Nunziata, then afloat on the waters of the Atlantic Ocean, about two and a half miles off shore from Ocean City, New Jersey; that claimant went from said vessel in a small boat to tighten and fasten certain nets constituting a pound, and, while pulling upon a net, slipped and fell, striking his hip and back, causing serious and disabling injuries, the nature of which has not as yet been fully determined."
Petitioner's claim is that by reason of such finding of fact the deputy commissioner was without jurisdiction and had no power or authority to make the award, because Benedetti, the person to whom the award was made, does not come within the provisions of the act and relies upon subsection (3) of Title 33 U.S.C.A. § 902, which reads as follows: "The term 'employee' does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."
Petitioner prays also for interlocutory restraint on the ground that if the payment of the award is enforced by seizure and sale of his vessel it will result in irreparable damage to him.
The Court admitted Alexander Benedetti, the claimant before the deputy commissioner, as an intervening respondent, who has filed an answer setting up certain preliminary matters in bar of petitioner's claim. They are:
(1) That petitioner did not raise before the deputy commissioner the question of his jurisdiction or right to make an award, and is therefore precluded from presenting such matter to the Court.
(2) That petitioner has failed to properly institute proceedings in this court to suspend or set aside the compensation order within 30 days from the entry thereof, as provided in Section 21(b) of the act, 33 U.S.C.A. sec. 921(a) under which the petition was filed.
If either of these reasons is sufficient to bar the action here, the injunction should be refused and the petition dismissed.
The right to have a review in the Federal district court is given in subsection (b) of Section 921, 33 U.S.C.A. which provides that a compensation order, "If not in accordance with law," may be suspended or set aside, in whole or in part, through injunction proceedings. The instant proceedings were instituted under that section.
Counsel for intervener has in his brief cited a number of cases, to wit: Southern Shipping Co. v. Lawson, Deputy Compensation Com'r, D.C., 5 F.Supp. 321; Liberty Stevedoring Co., Inc., v. Cardillo, Deputy Com'r, D.C., 18 F.Supp. 729; Metropolitan Casualty Ins. Co. v. Hoage, Deputy Com'r, 67 App.D.C. 54, 89 F.2d 798, and some cases in the State courts, claiming the doctrine of these cases upholds his contention that the district court has no power or authority to consider or pass upon any question submitted in the proceeding, unless it had been raised before the deputy commissioner. I have not been able to examine the cases in the State courts, but the Federal cases above cited do not pass upon any jurisdictional question and are not therefore in point.
The law seems to be quite clearly determined by the Supreme Court in the case of Crowell, Deputy Commissioner v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598. On pages 62-64 of 285 U.S., on page 296 of 52 S. Ct., 76 L. Ed. 598, the court said:
"When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. We are of the opinion that such a construction is permissible and should be adopted in the instant case. The Congress has not expressly provided that the determinations by the deputy commissioner of the fundamental or jurisdictional facts as to the locality of the injury and the existence of the relation of master and servant shall be final. The finality of such determinations of the deputy commissioner is predicated primarily upon the provision (section 19(a), 33 U.S.C.A. § 919(a) that he 'shall have full power and authority to hear and determine all questions in respect of such claim.' But 'such claim' is the claim for compensation under the act and by its explicit provisions is that of an 'employee,' as defined in the act, against his 'employer.' The fact of employment is an essential condition precedent to the right to make the claim. The other provision upon which the argument rests is that which authorizes the federal court to set aside a compensation order if it is 'not in accordance with law.' Section 21(b), 33 U.S.C.A. § 921(b). In the absence of any provision as to the finality of the determination by the deputy commissioner of the jurisdictional fact of employment, the statute is open to the construction that the court in determining whether a compensation order is in accordance with law may determine the fact of employment which underlies the operation of the statute. And, to remove the question as to validity, we think that the statute should be so construed. Further, the act expressly requires that, if any of its provisions is foudn to be unconstitutional, 'or the applicability thereof to any person or circumstances' is held invalid, the validity of the remainder of the act and 'the applicability of such provision to other persons and circumstances' shall not be affected. Section 50 (33 U.S.C.A. § 950). We think that this requirement clearly evidences the intention of the Congress, not only that an express provision found to be unconstitutional should be disregarded without disturbing the remainder of the statute, but also that any implication from the terms of the act which would render them invalid should not be indulged. This provision also gives assurance that there is no violation of the purpose of the Congress in sustaining the determinations of fact of the deputy commissioner where he acts within his authority in passing upon compensation claims while denying finality to his conclusions as to the jurisdictional facts upon which the valid application of the statute depends.
"Assuming that the federal court may determine for itself the existence of these fundamental or jurisdictional facts, we come to the question, Upon what record is the determination to be made? There is no provision of the statute which seeks to confine the court in such a case to the record before the deputy commissioner or to the evidence which he has taken. The remedy which the statute makes available is not by an appeal or by a writ of certiorari for a review of his determination upon the record before him. The remedy is 'through injunction proceedings mandatory or otherwise.' Section 21(b). The question in the instant case is not whether the deputy commissioner has acted improperly or arbitrarily as shown by the record of his proceedings in the course of administration in cases contemplated by the statute, but whether he has acted in a case to which the statute is inapplicable. By providing for injunction proceedings, the Congress evidently contemplated a suit as in equity, and in such a suit the complainant would have full opportunity to plead and prove either that the injury did not occur upon the navigable waters of the United States or that the relation of master and servant did not exist, and hence that the case lay outside the purview of the statute. As the question is one of the constitutional authority of the deputy commissioner as an administrative agency, the court is under no obligation to give weight to his proceedings pending the determination of that question. If the court finds that the facts existed which gave the deputy commissioner jurisdiction to pass upon the claim for compensation, the injunction will be denied in so far as these fundamental questions are concerned; if, on the contrary, the ...