Warren H. PILLSBURY, Deputy Commissioner, Thirteenth Compensation District under the Longshoremen's and Harbor Workers' Act, Appellant, v. PACIFIC STEAMSHIP COMPANY, a Corporation, and Union Insurance Society of Canton, Ltd., a Corporation, Appellees

Warren H. PILLSBURY, Deputy Commissioner, Thirteenth Compensation District under the Longshoremen’s and Harbor Workers’ Act, Appellant, v. PACIFIC STEAMSHIP COMPANY, a Corporation, and Union Insurance Society of Canton, Ltd., a Corporation, Appellees. No. 6587. Circuit Court of Appeals, Ninth Circuit. Feb. 1, 1932. See, also, 52 F.(2d) 686. Samuel W. McNabb, U. S. Atty., and Dorothy Lenroot Bromberg and Ignatius F. Parker, Asst. U. S. Attys., all of Los Angeles, Cal., for appellant. Farnham P. Griffiths, Charles E. Finney, George E. Dane, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for appellees. Bogle, Bogle & Gates, Lawrence Bogle, Stanley B. Long, Grosscup & Morrow, W. Carr Morrow, and John Ambler, all of Seattle, Wash., amici curiæ for Seattle Waterfront Employers. Wood, Montague & Matthiessen, Erskine Wood, and Gunther F. Krause, all of Portland, Or., amici curiæ for Portland Waterfront Employers. Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge. [MAJORITY — SAWTELLE, Circuit Judge.] SAWTELLE, Circuit Judge. This ease is affirmed, with modification as hereinafter noted, on authority of Marshall and Winkler v. Mahony Co. et al. (C. C. A.) 56 F.(2d) 74, decided this day, and for the additional reason that the facts in the instant suit disclose that there was no employee of the same “class” who had worked “substantially the whole” year, etc., whose earnings could be used as a standard for computing appellant’s compensation under 33 USCA § 910 (b). Accordingly, computation under subsection (b) was clearly “unfair” and “unreasonable,” if not mathematically impossible. The additional argument of the appellant herein, however, to the effect that the District Court erred in entering a decree for the refund of excess payments made to the applicant under the award of the deputy commissioner, is sound. There is nothing in the record, including the pleadings, to justify the court in entering that portion of the decree. We therefore hold that the last paragraph of the decree should be stricken. With, this modification, the decree is affirmed.