the suit therein was not commenced till after the commencement of the suit in the Federal court, the summons issued by the state court was served before the service of the writ of subpoena issued by the Federal court, is not well founded.
"A suit in equity is commenced by filing a bill of complaint. Story, Eq.Pl. 4th ed. § 7."
See, also, Humane Bit Co. v. Barnet, C.C., 117 F. 316; Brown v. Pacific Mut. Life ins. Co., 4 Cir., 62 F.2d 711.
In the case of United States v. Hardy, 4 Cir., 74 F.2d 841, on page 842, this doctrine is upheld with citation of cases, and I believe is now a fixed principle of the Federal courts.
It is true that the subpoena which was served upon the deputy commissioner was not issued until January 26, 1939, but, taking into consideration the apparent confusion of both the attorney and the Clerk with relation to the applicability of the new rules, it seems that reasonable diligence was exercised to bring the deputy commissioner into court. The deputy commissioner was aware of the fact that the petition had been filed early in the fall of 1938. Unquestionably counsel's intention was to prosecute promptly. The objections based upon the right of this Court to hear the case are disposed of by the aforesaid conclusions.
The next matter involves the question of fact as to whether the employee was a member of the crew. This is one of the points advanced by petitioner under which he claims the award of the deputy commissioner should be stayed permanently, and temporarily by interlocutory injunction. It is based upon the fact that the deputy commissioner found that Benedetti "was employed as a fisherman and utility man in connection with the vessel".
If Benedetti was a member of the crew of the vessel, he is not entitled to be compensated under the Federal law. Counsel for petitioner contends that the finding of fact that Benedetti was a fisherman in itself bars his recovery as a matter of law. Unless this contention is sustainable, no injunction can issue against the enforcement of the award on this point. I have read the testimony taken before the deputy commissioner, and I do not find therein any suggestion that Benedetti in any way took part in the operation of the vessel. Apparently he received wages by the month for riding out to sea on the vessel and assisting in tending the nets for the purpose of transferring fish from the nets to the vessel, riding back to the wharf on, and unloading fish from, the vessel, after which he helped to prepare the fish for sale and marketing. He did not live on the vessel, and went his way after the above described services were rendered. I am satisfied that he was not a member of the crew.
The case of The Carrier Dove, I Cir., 97 F. 111, cited by counsel for petitioner, appears to hold abstractly that a fisherman is a seaman, but the facts in that case are not very clearly disclosed. I assume that case was with relation to a deep sea fishing boat, and that fishermen acted as deck hands and sailors as well.
The case of Maryland Casualty Co. v. Lawson, Deputy Commissioner, 5 Cir., 94 F.2d 190, holds that a deck hand on a scow, not an actual seaman or experienced sailor, who worked on boat during daily shifts of eight hours handling lines and doing what was necessary to her navigation, who took orders from the master of a dredge, and who was permanently attached to the dredge and her attendant scow as a member of the ship's company, was a member of the crew, and that his death from drowning could not be compensated for under the Federal act.
That case does not seem to be in accord with the weight of authority, although the special circumstances above stated may justify the decision. It is not cited in later cases.
In the case of Seneca Washed Gravel Corporation v. McManigal, 2 Cir., 65 F.2d 779, it was held as set out in syllabus 2: "Word 'crew' in Longshoremen's and Harbor Workers' Compensation Act, prohibiting payment of Compensation for death of member of vessel's crew, connotes company of seamen belonging to vessel. (Longshoremen's and Harbor Workers' Compensation Act, § 3, 33 U.S.C.A. § 903)."
In De Wald v. Baltimore & O.R. Co., 4 Cir., 71 F.2d 810, it was determined that a bargeman, whose duties were to check and supervise loading and unloading of cargo and keeping record, and who went home every night, with some other incidents of employment, was not a master or member of a crew. Petition for certiorari denied, Baltimore & O.R. Co. v. De Wald, 293 U.S. 581, 55 S. Ct. 94, 79 L. Ed. 678.
In the case of Diomede v. Lowe, Deputy Com'r, 2 Cir., 87 F.2d 296, it was held that a sole employee in charge of dump scow which had no means of self-propulsion, whose duties were to supervise loading and unloading thereof, and who was subject to the order of the captain of tug which towed the scow, was neither master nor member of crew and was entitled to compensation under the Federal act. Petition for certiorari denied, Moran Bros. Contracting Co. v. Diomede, 301 U.S. 682, 57 S. Ct. 783, 81 L. Ed. 1340.
See, also, Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245, wherein the general rule is stated in syllabus I as follows: "A provision in the Longshoremen's and Harbor Workers' Compensation Act excepting from its operation a master or member of a crew of any vessel, excepts only those employees ordinarily and generally considered as seafaring men, leaving that fact to be determined by the circumstances of each case."
See, to the same effect, Harper v. Parker, Deputy Commissioner, D.C., 9 F.Supp. 744.
These cases sustain the conclusion that Benedetti was not a member of the crew of the fishing ship.
This conclusion, as I understand the statute and the rules governing general equity principles in injunction matters, makes it unnecessary to consider the question of irreparable damage.
The petition for temporary restraint is necessarily based upon the theory that the decision of the deputy commissioner is not in accordance with law. For the purpose of issuing an interlocutory injunction the Court must therefore find that there is a probability that the petitioner will succeed on final hearing, and further that the enforcement of the award pending final hearing will entail irreparable damage. The court finds, under the facts submitted, that there is no probability that petitioner's claim will be sustained, and it is not required that the Court shall consider the points raised as to irreparable damage. See Luckenbach S.S. Co. v. Norton et al., D.C., 21 F.Supp. 707.
An order will be made denying the prayer for an interlocutory injunction.
© 1992-2004 VersusLaw Inc.