The opinion of the court was delivered by: LINDBERG
This action was filed on September 22, 1965 by plaintiffs under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921, to enjoin and set aside a compensation order issued by defendant Deputy Commissioner as not in accordance with law. On October 20, 1965 plaintiffs filed a motion for interlocutory injunction pending final determination of its appeal, alleging irreparable injury. While the motion was noted for argument for November 1, 1965 it was continued until November 15, 1965 because of my absence from the district and thereafter continued upon request until November 29, 1965. After submission of briefs and oral argument I orally announced my opinion that the motion was without merit because of failure to show irreparable injury. However, entry of an order denying said motion was delayed inasmuch as the Deputy Commissioner prior to November 29, 1965 - the date of hearing of the motion - had filed an answer and counterclaim for declaratory judgment and it appeared advisable to continue the hearing for a short time and dispose of the case on its merits after a hearing on all issues. Furthermore, the briefs submitted by counsel for plaintiffs and the defendant Deputy Commissioner, as well as oral argument, reviewed the merits of the case, with plaintiffs urging lack of jurisdiction by the Commissioner and the necessity of a de novo hearing by the court to determine the issue of jurisdiction.
The hearing was continued to December 13, 1965 at 1:30 o'clock p.m. Plaintiffs filed a motion for a trial de novo supported by a memorandum, and the Deputy Commissioner responded with a memoradum in opposition. The case was argued on all issues and submitted for decision.
As support for this argument the plaintiffs cite Crowell v. Benson (1932) 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598. This case was decided before the passage of the Administrative Procedures Act (1946), and since the passage of that Act the case trend has indicated a different standard of review than that laid down in Crowell. See O'Leary v. Brown-Pacific-Maxon (1951) 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483. If the Deputy Commissioner's findings of fact, including the ones upon which jurisdiction is predicated, are supported by substantial evidence in the record as a whole, they are to be upheld. This is the standard set forth in the Administrative Procedures Act, sections 1007(b) and 1009(e). It is also the standard of review that has been specifically adopted by this circuit. Morrison-Knudsen Co. v. O'Leary (9 Cir. 1961) 288 F.2d 542. In that case the court stated:
"Thus it can be said that as far as this Circuit is concerned the rule laid down in Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598, has been limited and interpreted so as not to require a trial de novo as a matter of right under circumstances where there is no real issue of fact presented." (Id. at 543)
An examination of the record is necessary to ascertain if there is a real issue of fact here.
The following pertinent facts appear undisputed. Joseph Keohookalani, the deceased worker, was employed by the plaintiff company as a rigger for a traveling crane. He rode in the cab of the crane and assisted the crane operator in attaching the crane's lift mechanism to various loads. On November 13, 1964, the day of his death, Mr. Keohookalani and the crane operator were unloading a barge anchored alongside the pier upon which the crane was situated. They had attached a load and were in the process of lifting it when the crane - apparently from an excessive load - began to fall towards the water. After the cab of the crane hit the water the crane operator managed to free himself and was rescued. Mr. Keohookalani, however, was unable to escape. Approximately one hour later his body was recovered and he was pronounced dead.
Dr. Harold Eggers performed the autopsy. It showed that the dead man had received a basal skull fracture sometime previous to his death. Water was found in his lungs, a clear indication that he was alive when he entered the water. On the certificate of death two causes were stated: drowning and a basal skull fracture.
Dr. Eggers' testimony shows that he does not really know how the skull fracture occurred nor when. It was his opinion that it occurred as the crane was falling towards the water. This is just a guess, however. Dr. Eggers was not present when the crane fell, and he admitted under cross-examination that the skull fracture could well have been caused as the crane struck the water. There is nothing in the record which throws the weight of probability towards either view. When and how the fracture occurred is an unknown, pure and simple.
The immediate cause of death is known. It is asphyxia from drowning, as stated in the report. The head injury of the deceased undoubtedly contributed to his helplessness in the water, but he nonetheless drowned in Elliott Bay.
Based upon these facts, the Deputy Commissioner concluded that jurisdiction existed and compensation under the statute was proper. Implicit in this conclusion is the Deputy Commissioner's belief that death arose out of an injury occurring upon the navigable waters of the United States. Other than the hopeful speculations of the plaintiffs there is nothing in the record which is inconsistent with this finding.