I have discussed this matter with the seamen's representative time and time again, in the hope of getting them to see with us the wisdom of compensation. But he explained to me the advantages that they have now, and said that they felt that they were protected now and would not consent or agree to go along with this compensation act, in so far as it would apply to them. In so far as it applies to the longshoremen and to the ship repair men, the seamen are heartily in accord with us on it; but they do not want to have taken away from them what they now enjoy. Mr. BOIES. They did not appear here wishing to take any part in this bill, I notice? Mr. CHLOPEK. No; and if they wanted it they would be here every minute that the committee was in session, if they desired to be included in this bill. The CHAIRMAN. What is their organization? Mr. CHLOPEK. The International Seamen's Union of North America. Andrew Furuseth is their president. I believe that many of you gentlemen are well acquainted with him. The CHAIRMAN. I will ask the clerk of the committee to invite them to be present at the next meeting. Mr. HERSEY. Where is their headquarters? Mr. CHLOPEK. In this city while Congress is in session. The president is here all the time. Mr. ANDREWS. Mr. Chairman, we request the privilege of filing a few pages of explanation at the same time that the brief is filed by the opposition. The CHAIRMAN. What is that? I did not understand. Mr. ANDREWS. We desire the privilege of filing a brief memorandum in answer to that of the opposition. The CHAIRMAN. Yes; certainly. I understand that they are to confer with you and try to agree upon certain amendments perfecting the bill. Under the statement made, I do not think the question of the seamen will cut any figure in this adjustment. Mr. ANDREWS. It is utterly impossible. The CHAIRMAN. But we will get together this day week and take the result of this conference and see if we can not agree then upon a bill. (Thereupon, at 11.30 o'clock a. m., the committee adjourned.) (The following communication was submitted by Hon. S. W. Gambrill, a representative in Congress from the State of Maryland :) Hon. STEPHEN W. GAMBRILL, House Office Building, Washington, D. C. BALTIMORE, Md. SIR: There is pending in the House of Representatives a bill introduced by Chairman Graham, House Judiciary Committee, known as House bill 9498, providing compensation for longshoremen and harbor workers injured while working aboard ship. As matters now stand, longshoremen injured aboard ship, and their dependents, in the event of death, are not entitled to compensation under the various State workmen's compensation laws under a decision of the Supreme Court of the United States handed down two years ago last February. The pending bill is intended to remedy that situation. A great many men are seriously injured and killed doing longshore work, the character of the work being very dangerous. 95308-26-SER 16- -5 66 The United States Supreme Court in delivering its opinion through Justice McReynolds on February 25, 1924, in an action entitled the State of Wash. ington v. Dawson & Company," said: "Without doubt Congress has the power to alter, amend, or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enact. ment of a general employers' liability law, or general provisions for compensating injured employees." This organization is vitally interested in the passage of this legislation and would appreciate very much any assistance to that end from you. Very respectfully yours, Attest: INTERNATIONAL LONGSHOREMENS ASSOCIATION, LOCAL 829, By ALEX. BAGENSKI, President. GEO. A. LEWANDOWSKI, Secretary. HOUSE OF REPRESENTATIVES, The committee met at 10 o'clock a. m., Hon. George S. Graham (chairman) presiding. The CHAIRMAN. Gentlemen, we have under consideration H. R. 9498; and at the close of our last meeting it was suggested that the representatives of the two sides having stated that there was need for some such measure as this, were to try to get together and agree upon such amendments to the bill as would remove any possible objections to its being considered favorably, I would ask the representatives if they have anything to report. STATEMENT OF HENRY C. HUNTER, REPRESENTING COUNCIL OF AMERICAN SHIPBUILDERS (INC.), NEW YORK CITY Mr. HUNTER. Mr. Chairman and gentlemen: At the close of the hearing on the 15th I asked permission to submit the brief or memorandum which we submitted to the Senate committee. I have it here with some very minor changes in grammar and construction of sentences, and I would like to submit it now, The CHAIRMAN. Very well, (The statement referred to is as follows:) STATEMENT BY COUNCIL OF AMERICAN SHIPBUILDERS (INC.), AND NEW YORK AND NEW JERSEY DRY DOCK ASSOCIATION IN OPPOSITION TO THE ENACTMENT OF HOUSE BILL 9498 KNOWN AS THE LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION BILL The Council of American Shipbuilders (Inc.), is composed of corporations whose shipyards are situated on the Atlantic and Pacific coasts and shores of the Great Lakes. The New York and New Jersey Dry Dock Association includes in its membership a majority of the shipyards engaged in building and repairing ships in the Port of New York. State workmen's compensation laws provide compensation to shipyard workmen for accidental injuries arising out of and in the course of their employment while on land or while on a vessel in the course of construction. The admiralty courts have jurisdiction over actions commenced by workmen to recover damages against an employer for accidental injuries arising out of and in the course of their employment on board a ship, The shipbuilders and ship repairers generally favor a workmen's compensation law that will cover their workmen now within the jurisdiction of the admiralty courts, provided it contains provisions for compensation that are fair both to employer and employee and a procedure for the adjustment of claims that can be administered easily and expeditiously. The Council of American Shipbuilders (Inc.), and New York and New Jersey Dry Dock Association are opposed to the bill now under consideration and the reasons for such opposition are briefly as follows: Section 3 of the proposed law reads as follows: "SEC. 3. This act shall apply to any employment performed on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce; but shall not apply to employment as master or member of the crew of a vessel." This provision is indefinite. The exception of "employment of local concern and of no direct relation to navigation and commerce is vague and will be the subject of continual litigation. Innumerable claims will become legal questions requiring determination by the courts. Instead of excepting seamen, it should include all maritime employment. under the admiralty jurisdiction of the United States courts. The burden of such legislation may then be properly distributed over the maritime industry.. The bill, if enacted, will present constantly to employers and the courts the problem of deciding whether or not a workman employed part of the time as a seaman and at other times in repairing, loading or unloading a vessel is covered by the proposed law. Moreover, if the words " 'of local concern and of no direct relation to navigation and commerce" should relate to the work being done for the vessel instead of to the occupation of the workman, they would make still more the shifting of the coverage of this proposed act. Until these words are defined through litigation a continual conflict will arise with other legal remedies. The bill therefore can not guarantee as provided under section 5 that "the liability shall be exclusive and in place of any other liability whatsoever." * This bill proposes to impose hazards on an industry not properly arising out of it. The bill eliminates the word "accidental" and therefore charges the industry with injuries, ills, and diseases, not hazards of the employment. Sec. 2-b provides compensation for an injury, or death arising out of the employment or occurring in the course of employment. Almost any kind of a disability or death would be compensated by this provision. The absurdities to which this would lead are appalling. Literally any death occurring during a man's employment, whether on the employer's premises or not and irrespective of the cause thereof, would be compensated. All workmen's compensation laws require injuries to be accidental and almost all require that they arise out of and in the course of the employment to be compensable. This provision of the bill goes far beyond the New York State statute or that of any other State. 66 The provision as to occupational diseases is open to the same criticism. There are no safeguards. Any disease arising out of employment opens the door to countless controversies. The necessity of administering such a law throughout such a wide territory and by so many different tribunals will result in a variety of determinations and inequalities. Occupational diseases should be limited and defined with refernce to their corresponding employ ments. The New York State workmen's compensation law, and nearly all such State laws, relieves the employer of liability for compensation when the injury has been occasioned by intoxication of the injured employee while on duty. The bill under consideration contains no such provision. The administration of the law, if left to State compensation boards; fre quently composed of laymen and influenced as they will be by local conditions, will result in great inequality and variety of decisions. It will be difficult and intricate in some places, smooth and prompt in others and will lack the uniformity that should prevail. Decisions should be uniform. Impartial administration of the proposed workmen's compensation law and the uniform decisions necessary thereunder to avoid confusion are possible only by placing the administration and interpretation of a Federal workmen's compensation law in the United States courts. The proposed law, in view of the wording of section 15-d, will result in innumerable hearings. Under a properly prepared workmen's compensation law, it should not be necessary to hold hearings on 98 per cent of the claims. If there be necessity for such hearings, then a compensation law is little improvement over common law liability. Section 12-a provides that a notice of time, place, nature and cause of an injury shall be given a deputy commissioner and the employer. The value of this notice to the employer is destroyed by a subsequent subdivision (e), which provides that failure to give notice of the injury to the deputy commissioner or the employer shall not bar any claim if the employer or insurance carrier had knowledge of the injury or death or if the employer has not been prejudiced by the failure to give notice. Section 14 provides that the right to claim compensation shall be barred, unless within two years after the accident, or if death results therefrom within two years after such death, a claim for compensation shall be filed with the deputy commissioner. One year is the usual limitation in State statutes, a limitation that is reasonable and is necessary to prevent malingering and the "hiding out" of cases which otherwise would be sprung upon an employer after his opportunity to investigate a claim has gone. But even this limitation of two years is almost destroyed by section 29, where it is left to the discretion of the commission to allow proceedings to be instituted after the time limit, if it appears that the delay was not due to the fault of the petitioner and that the prinicpal defendant has not been projudiced by such delay. Secion 15 provides also that a deputy commissioner may receive deposits of money and make periodical payments therefrom. These deposits may become large sums of money and the bill does not provide the proper machinery to handle these deposits and makes no provision whereby the deputy commissioner shall furnish security for the moneys received by him, and therefore employer and injured workmen are not provided with the protection to which they are entitled. This same section and other sections provide for certain commutations to be made in injury and death cases, but they fail to provide life tables, rate of interest, or proper procedure necessary to make such commutations. Commutations in cases of death are unwise, uneconomic, and do not properly protect the beneficiaries because lump sums received under commutations are frequently soon dissipated. Under this provision, after receiving a lump sum based on a whole life expectantcy, a widow will often remarry, thus defeating the purpose of the clause (sec. 10-b) relating to two years payment of compensation on remarriage. Section 38 of the bill provides that the amount allowed for legal services must have the approval of the deputy commissioner, but the bill permits ANYONE to appear and prosecute claims. This provision will permit the exploitation of injured workmen by unprincipled men and encourage the ambulance chaser. Section 39 gives certain vague State authorities the right to inspect the employer's records which undoubtedly will result in irritations and conflict. The provision of section 46-b requiring an indemnity bond from self-insurers is proper and adequate protection, but the further provision, requiring, in the dicretion of the commission, the deposit of securities, will be not only cumbersome and troublesome to the administrators, but will result in the withdrawal from industry of large sums of money which can be employed far better in the development of business. THE PROVISIONS OF THE BILL REGULATING APPEALS ARE TOO VAGUE Under this bill cases involving as much as $75,000 may be determined by a deputy commissioner whose findings of facts would be final and conclusive. If the great cost of compensation laws are to be borne by the industry and subsequently distributed to the public, then it is of vital importance that they be fairly administered. Under this bill large sums of money will be involved and decisions rendered by laymen frequently inexperienced in the subject matter and without an appreciation of the law, and therefore their decisions should be subject to review by the court. In any compensation law with such provision for the trial of claims there should be a further provision that the decisions of commissioners should be final unless modified, leaving to the court the power to review all questions. An appeal should be permitted as a matter of right by either party to a court with a procedure that will permit the appellant to file exceptions to an award. In any compensation law, the proceedings should be simple and permit a fair determinations of the claims, many of which involve large sums of money. An appeal from the decision of a commissioner should automatically stay the filing of a judgment. In the bill no stay is allowed except by discretion of the court reviewing the claim. These provisions are important because the bill permits the introduction of evidence without the usual limitations provided by the common law or statutory rules of evidence. THE COMPENSATION PROVIDED BY THE BILL IS UNREASONABLE AND EXCEEDS THE COMPENSATION USUALLY ALLOWED UNDER STATE STATUTES It has been stated that the bill contains provisions for compensation substantially the same as those contained in the New York State law. The bill includes all of the benefits allowed by the New York law, and much more. Many of the limitations of compensation which are safeguards of the New York State law have been removed from the bill, notwithstanding that the New York State law is recognized generally as the most liberal to workmen, with the possible exception of the new Arizona workmen's compensation law. Take, for instance, a total disability case where payment is for life. A workman receiving $8 per day and of the age of 21 years, having a life expectancy of 42 years, would receive from his employer under the New York statute $44,000; but under the proposed law he would receive about $66,000. The difference is caused by the $20 per week limitation provided in the New York law. The New York law contains other limitations which are absent from the bill. There are the $3,500 limitation on temporary total disability; the $3,500 limitation on permanent partial disability other than specific schedule losses; the $3,500 limitation on temporary partial disability and the provision for an average healing period before schedule injuries apply. None of these limitations are present in this bill. In death cases the New York statute excludes wages beyond $150 a month as a basis of compensation. No such provision is in the bill under consider ation. Take, for example, the death of the $8 per day man, leaving a widow of 21 years of age. To pay compensation in this case under the bill would require approximately $36,000, and, if there were children, a much larger sum. Under the New York law with no children surviving, approximately $22,000 would be paid by the employer. The New York law, of course, gives the widow 30 per cent, while under this bill a schedule of 35 per cent is provided. While 30 per cent is reasonable the absence of a wage limitation makes this bill provide life payments unheard of heretofore. There are other differences between the New York schedule of compensation and that contained in the bill, all imposing greater burdens on the employer than the provisions of the New York law. The New York law contains another material and important provision relating to death of aliens, which is absent from this bill. It provides that compensation to aliens, who are not residents of the United States or Canada, shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother, whom the employee has supported either wholly or in part, for the period of one year prior to the date of the accident; it provides also that the commission may, at its option, or upon the application of the insurance carrier, shall commute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the commission. The bill before the committee makes no distinction between citizens and aliens and provides the same compensation for each class and their respective dependents. The definitions of "child" in section 2 (g) and of parent in section 2 (h) will result in imposing burdens on the employer far beyond those imposed under similar circumstances in State laws. Section 7 with its various subdivisions regulating medical attendance are unreasonable. The so-called panel system of physicians provided in the bill will be ineffective and unworkable. A similar plan has been rejected by the State of Massachusetts after a trial of several years. Subdivisions (e) of section 7 permitting the employee to request the services of a consulting physician at the expense of the employer will subject the employer to all the caprices an injured man may have. |