JOHN R. BROWN, Circuit Judge.
This is a simple case. Simple in outline and simple in available choices. As so much today, this is more of the Sieracki-Ryan-Yaka-Jackson
As the decision went off on the pleadings and on motion for summary judgment raising the same thing, only a brief recital is necessary. The General Contractor
Ours is solely a task of statutory construction. But that is a beguiling oversimplification. For from statutory language which in two groups is substantially similar, there are not less than four choices
The problem arises out of the interplay of the provisions of the Act prescribing liability for compensation and the exclusiveness of the employer's liability. The employer is liable for compensation not only for his own direct employees but the employees of subcontractors where payment of compensation is not secured.
The theory behind granting the general contractor the employer's immunity is that, liable under certain circumstances to the injured employee of the subcontractor, he has for all practical purposes an employer's liability for compensation. Indeed, under some statutes imposing a conditional liability to employees of subcontractors, some treat the general contractor as a "statutory employer." 2 Larson, Workmen's Compensation, §§ 72.30, 72.31 (1952). This being so, it is argued, since the general contractor has this potential compensation liability, it is not equitable for him also to bear the risk (and premium cost) for unlimited general liability damages to the same employee. The two main lines of decision — (1) general contractor may be sued, (2) the general contractor may not be sued — arise out of compensation statutes which, in turn, follow two principal divisions. In the first are those statutes which require the general employer or general contractor to see that any and all independent contractors or subcontractors carry compensation insurance or suffer statutory liability for compensation to the employees of the subcontractors. In the second category are those which directly impose liability on the general employer or the general
Additionally, some have suggested that since the purpose of statutes imposing a secondary liability of some character upon the general employer or general contractor for injuries to employees of subcontractors is to encourage employers in the subordinate levels to secure the necessary insurance, the rule which permits recovery against the general contractor where the subcontractor has obtained insurance, but which would be prohibited where the subcontractor obtained none, collides directly with the statutory policy. See 2 Larson, Workmen's Compensation, § 72.31 at p. 176 (1952). This approach carries little conviction under the Longshoremen's Act. Congress did not leave it to hierarchical inducement to assure that every employer subject to the Act becomes bound by, and qualified under, the Act. By express definition the Act covers every "* * * employer any of whose employees are employed in maritime employment, in whole or in part, * * *," § 902(4). This includes the subcontractor. Every employer is made liable for and required to secure the payment of compensation to his employees. § 904 (note 9, supra). To secure, as § 904 requires, payment of compensation, the employer must either obtain and keep in force approved insurance coverage or qualify as a self insurer under applicable regulations. § 932. Payment of compensation benefits, § 914, furnishing medical services, § 907, and making reports, § 930, are automatically required of the employer under severe sanctions. §§ 918, 930. See Atlantic & Gulf Stevedores, Inc. v. Donovan, 5 Cir., 1960, 274 F.2d 794, 1960 AMC 1311, rehearing denied, 279 F.2d 75; cf. Employers Liab. Assur. Corp. v. Donovan, 5 Cir., 1960, 279 F.2d 76, cert. denied, 364 U.S. 884, 81 S.Ct. 165, 5 L.Ed.2d 105. And finally to cap it all, an employer failing to secure payment of compensation is guilty of a misdemeanor and subject to fine and imprisonment.
This analysis and the structure of §§ 904, 905 (notes 9, 10, supra) add up to show that the provision imposing on the general contractor compensation liability to an employee of a subcontractor is a secondary, protective one. The subcontractor not only is compelled, as we have just shown, to qualify under the Act, but his failure to do so does not reduce his liability to his injured employee. To the contrary, the employee under § 905 has a fielder's choice. He has the right to a pre-Yaka suit for damages with no risk from defenses of fellow servant, assumed risk or contributory negligence. Or, if he wishes to eliminate all risks, he can demand payment of compensation under the terms of the Act. About the only time then that the injured worker has to pursue
And certainly at this late date a holding narrowing, withdrawing, or restricting the rights of an injured ambiguous-amphibious worker would be stemming the strong judicial tide. Thus Sieracki's cautious statement that the Act "had no purpose or effect to alter the [worker's] rights as against any but his employer alone," 328 U.S. 85, 102, 66 S.Ct. 872, 881, 90 L.Ed. 1099, 1110, has now been overtaken by Yaka's unlimited in rem employer liability for unseaworthiness followed most recently by Jackson for in personam liability.
We therefore reach the same conclusion as the only two earlier cases did. Thomas v. George Hyman Constr. Co., D.C.D.C.1959, 173 F.Supp. 381, and Liberty Mut. Ins. Co. v. Goode Constr. Co., E.D.Va.1951, 97 F.Supp. 316 (each under the District of Columbia statute which incorporates the Longshoremen and Harbor Workers Act). We leave open, however, as unnecessary to this decision the question of what ought to be done if the general contractor, or general employer, is actually required to pay compensation benefits to the injured employee of the subcontractor under § 904.
"(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner * * * to receive such compensation or to recover damages against such third person." (Emphasis added.)
"(a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, 909 of this title. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment." (Emphasis added.)
Although the purpose was ostensibly to reduce the number of those who would qualify as a "third party" this was carefully confined to fellow employees of the injured worker presumably to avoid the embarrassing predicament of a third party Ryan idemnity impleader by the shipowner against the injured worker's fellow employee, frequently a star witness, often the one whose action with or without negligence brought the asserted unseaworthiness into play and whose conduct breached the contractor-employer's WWLP. United States Lines Co. v. Williams, 5 Cir., 1966, 365 F.2d 332, 1966 AMC 2418. See 1959 U.S.Code Cong. & Admin.News p. 2134.