CHART VI.-FATAL INJURIES-INCOME BENEFITS FOR WIDOW AND CHILDREN, JAN. 1, 1967 3 No limit. Thereafter to children until specified age. Age 18 in New Jersey and Pennsylvania but at reduced 28 Covers hospital, doctor, ambulance, and special nursing. 36 Maximum earnings not to exceed $5,000 per annum. 38 Maximum earnings not to exceed $6,000 per annum. Maximum compensation to dependents not to exceed workmen's average earnings. 41 60 percent of average production wage, to be determined annually by Labor Commissioner$65 as of Oct. 1, 1966. 43 $17.31 for widow plus $5.75 for each dependent child. 51 Maximum not to exceed 2% of State's average weekly wage as computed by Maine Employment Commission equals $59.81 as of June 1, 1966. 55 Payments to children until age 19; $10,000 lump sum to spouse upon remarriage; total maximum imit not applicable In case of physically disabled spouse, incapable of self-support. See footnote 18, chart IV. 56 Payments to student children continue until age 23 or marriage. Upon remarriage of widow lump sum of 24 monthly payments, excluding amounts on account of other dependents. Source: Reproduced from analysis of workmen's compensation laws, Chamber of Commerce of the United States, Washington, D.C. KRAUSE, LINDSAY & NAHSTOLI, Re S. 2485-Amendments to Federal Longshoremen's Harbor Workers' Act Counsel, Subcommittee on Labor Senate Labor and Public Welfare Committee, DEAR MR. HARRIS: At the hearings before the Subcommittee in Portland, questions were raised by Senator Morse, on the basis of testimony of various witnesses, as to the number of accidents and resulting injuries which were caused by the breaking of or failure of ships' gear or equipment. In response, there is enclosed herewith for insertion in the record a threeyear analysis of longshore injuries on the Pacific Coast, prepared by the Bureau of Labor Standards of the U.S. Department of Labor, from which you will note that injuries attributable to "failure of gear and/or equipment" only accounted for 2.4 percent of total injuries in 1964, 2.3 percent in 1965, and 2.1 percent in 1966. Very truly yours, DENNIS LINDSAY. 3-YEAR COMPARISON, LONGSHORE ACCIDENT ANALYSIS OF INJURIES, PUBLIC LAW 85-742 Re S. 2485 Hon. RALPH YARBOROUGH, NATIONAL MARITIME COMPENSATION COMMITTEE, Chairman, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, U.S. Senate, Washington, D.C. DEAR SENATOR YARBOROUGH: In accordance with a request made to the undersigned by Senator Morse at the hearings in Portland, Oregon, there is enclosed herewith for insertion in the Record a Reply Memorandum to Mrs. Esther Peterson's letter, dated January 23, 1968, and accompanying memorandum of the views of the Department of Labor with respect to third party suits under the Federal Longshoremen's and Harbor Workers' Compensation Act. It appears to us, as you will note from our memordanum, that Mrs. Peterson's letter is based on a number of misconceptions as to what is really happening both on the waterfront and in the court houses around the country. In reality, the situation today boils down to this: (1) an injured employee (after taking advantage of the medical care and compensation benefits provided by his employer under the Act) can successfully bring a third party suit against the shipowner without having to prove fault or negligence on the part of the shipowner (or he can even bring a successful "third party" suit against his employer if the latter owns or operates the vessel); and (2) the so-called third party shipowner is in almost all instances seeking and obtaining indemnification from the compensation paying employer, who was theoretically insulated by Sec. 5 of the Act from all liability except for the payment of medical care and compensation benefits, but who ends up paying a jury damage verdict (or settlement based on the likelihood of such verdict), as well as a shipowner's defense costs and attorneys' fees. That this is the situation today (rather than what Mrs. Peterson's letter indicates) is no more clearly mirrored than in the recent decision of Turner v. Transportation Maritima Mexicana S.A. et al. (E. D. Pa. Civil Action 37221, February 15, 1968), which is so current and pertinent that we enclose it and ask that it be inserted in the Record. In this case a panel of three Federal judges, speaking for the entire bench of thirteen Federal judges of the U.S. District Court for the Eastern District of Pennsylvania, had this to say with respect to their caseload of 1,141 pending (as of June 30, 1967) third party suits by longshoremen against shipowners and the resulting indemnity actions by the shipowners against the compensation paying stevedore employers: "There is complete unanimity among the Judges of our Court in that we would welcome an inquiry by Congress for a re-evaluation of the issue as to whether the Longshoremen and Harbor Workers' Act should be amended so that the latter would be the exclusive remedy and thus bar actions between the longshoremen and shipowners; and if there can be no congressional relief for this historical anachronism, whereby longshoremen who are not seamen nevertheless get rights as if they were seamen, then there must be additional judges and facilities for those "longshoremen federal courts" which are struggling to diminish the delays in civil trials. If there is such an inquiry, several questions should be asked: (1) Do longshoremen (in contrast to their lawyers) generally come out with better financial results by reason of this duality of litigation than they would if they had somewhat increased benefits and the statute was truly exclusive?..." Whatever the Department would have you believe, there can be no doubt but that the "three-cornered Kilkenny Fair" litigation of longshoremen vs. shipowner vs. stevedore is unique in the law. Its only possible remaining justification has to be that Congress wishes this particular class of employees to have the benefits of, and their employers to pay for, this unique duality of remedies unavailable to any other class of workers in America (i.e. medical care and compensation benefits, plus a jury damage answer based on a no fault theory liability). We suggest that this was not the original intention of the Congress in enacting the Act and should not be so now. The Federal judges for the Eastern District of Pennsylvania (who live with these cases on a daily basis) have posed the question of whether longshoremen (in contrast to their lawyers) would be better off if they had increased benefits and third party suits were eliminated. If nothing else, have not the hearings before this Subcommittee established the self-evident answer that they would be? By the same token, have not the hearings also established that the almost incredible volume of third party litigation has imposed an unnecessary cost burden on the maritime industry which cannot find justification on grounds of demonstrable benefits to the injured employee? Sincerely, DENNIS LINDSAY, Special Counsel. MEMORANDUM REPLYING TO MRS. PETERSON'S LETTER OF JANUARY 23, 1968, AND ACCOMPANYING MEMORANDUM FROM THE DEPARTMENT OF LABOR ON THIRD PARTY SUITS SUBMITTED BY DENNIS LINDSAY AND JERALD S. WEIGLER, FIRM OF KRAUSE, LINDSAY & NAHSTOLL For a Government agency charged with the administration of the Federal Longshoremen's and Harbor Workers' Compensation Act (hereafter "the Act") and presumably current on the nature and effect of third party suits under the Act, Mrs. Peterson's letter and the accompanying memorandum reflect a basic lack of information of what is happening in this field and is completely unrealistic under today's conditions. We call the Subcommittee's attention to four major misconceptions underlying the Department's position: First, the erroneous suggestion that third party damage recoveries by maritime workers covered under the Act against shipowners are based on some fault of the so-called third party shipowner. In fact, recoveries for unseaworthiness are based upon a no-fault concept of absolute liability which, in the recent words of the United States Court of Appeals Judge Leonard P. Moore, has been stretched "from the absurd to the ridiculous".1 1 Candiano v. Moore McCormack Lines, F. 2d (concurring opinion). (Dec. 4, 1967) on pet. for rehearing Moreover, the shipowner merely provides a place for the accident and a defendant to sue. More often than not, the shipowner has no other connection with the accident or the events which led to its occurrence. Likewise, negligence on the part of the employer under the Act is no longer necessary for it, in turn, to be held liable to indemnify the shipowner. The law merely requires that plaintiff or his fellow employees somehow "brought into play" an "unseaworthy condition" which need only have existed a few seconds, if any, before the accident to create liability. Second, Mrs. Peterson's letter contains the erroneous suggestion that employers who pay compensation under the Act are only occasionally forced to indemnify shipowners for third party action damages. In fact, as any random sampling by the staff of the Subcommittee will confirm, stevedores, ship repairers and other maritime employers who initially must and do pay medical and compensation benefits are now also faced with indemnity claims in almost every one of the steadily multiplying number of third party law suits. They are forced to either assume defense of the ship or pay some or all of the shipowner's damages, including his litigation costs and attorneys' fees. It is the employers under the Act (and not the shipowners as the Department suggests) who are the real parties in interest who must ultimately pay the "thirdparty" costs. Third. Mrs. Peterson's letter contains the erroneous suggestion that the proper "general operation and effect" of third-party suits is to "enable the injured longshoreman to recover, under Admiralty law, such amounts as may be due on account of the negligence of the stevedore company, over and above the compensation payments required under the Longshoremen's and Harbor Workers' Compensation Act." In fact, such result totally deviates from the fundamental quid pro quo of the Act and of all workmen's compensation statutes which gave fixed and certain benefits to all injured workmen, regardless of fault, in exchange for eliminating the common law right to a damage lawsuit against their employer. Fourth. Mrs. Peterson's letter contains the erroneous suggestion that the Department of Labor has consistently opposed remedying by Congress of the inequities created by third party litigation. In fact, the Department has previously recognized that a serious problem exists which should be scrutinized by Congress. It acknowledged that employers should perhaps not be required to respond in both compensation and damages unless they had specifically contracted to do so. A THIRD PARTY RECOVERY CAN BE OBTAINED WITHOUT PROOF OF FAULT AND SOMETIMES WITHOUT EVEN A "THIRD PARTY" Before workmen's compensation legislation was enacted an employee could sue his employer for work injuries due to the latter's negligence but was subjected to numerous technical defenses which often defeated recovery. Many states enacted compensation laws which exchanged the right to sue for prompt payment of fixed benefits for any injury without considerations of fault. However, the United States Supreme Court three times held that efforts to bring maritime workers injured on navigable waters under local state compensation laws were unconstitutional.3 In 1926, the Court held that maritime workers were entitled to sue their employers without being subjected to the traditional common law defenses under federal legislation previously enacted to cover railroad workers and seamen.* Less than a year later, Congress passed the Longshoremen's and Harbor Workers' Compensation Act, and took away the right of lawsuits against the employers. The Department's memorandum points out that a maritime worker's right to sue a third party "tort feasor" was preserved in the Act. True enough, in keeping with the New York Workmen's Compensation Law after which the Act was patterned, an employee injured by the fault of a third party was still permitted to sue at law for damages unaffected by his compensation rights, except that he could not have a double recovery; but, no one at that time even remotely an 2 See Turner v. Transportacion Maritima Mericana S.A., C.A. 37221, and Transportacion Maritima Mericana v. J. A. McCarthy, Inc., Adm. No. 373 of 1966, Opinion filed February 15. 1968. -— F. Sunn. — (E.D. Pa.). 3 S. Rep. No. 973 and H.R. Rep. No. 1190. 69 Cong., 1st Sess. (1926): The cases were Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), and Washington v. Dawson & Co.. 264 U.S. 219 (1924). • International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926). |