(dissenting).
Leslie Lovely, the gang foreman, and Ernest Wisby, the walking foreman, each testified that he had actual knowledge of the claimant’s injury on the night that it occurred. Irrespective of the manner and duration of their employment, both Lovely and Wisby were then .employees of the Southern Stevedoring & Contracting Company, and it was responsible for their acts and omissions within the scope of their employment the same as if they had been selected without the aid of a union and their duties were to extend over years. Wisby was the man who hired Earl Porter, the claimant. He was in charge of the gang of longshoremen, directed them in their work and exercised general supervision over them. He was the person who paid off the men for the employer and was the only representative of the employer known to the claimant.
Wisby testified:
“Q. What are your instructions about reporting injuries? Don’t they report to their immediate foreman first? A. They report to the immediate foreman; tell me and I inform them to get hold of the doctor. But on this job, I didn’t. I was filling in there as walking foreman at night, as assistant, I guess. I don’t know who was over me. I think Harrison was supposed to be walking that ship; I think he was. Another boy was over him.
“Q. Who was over you? A. I don’t know his name.
“Q. As a matter of general practice, don’t the men report to the immediate foreman? A. Yes, immediate foreman and foreman in turn.
“Q. You leave it to the men to go find the timekeeper, find their way around? A. I reported it to the timekeeper myself, and told him Earl got hurt.
“Q. Who is the timekeeper? A. Mr. Tarpey.
“Q. Is that R. J. Tarpey ? A. Yes, that’s right. I report to him and he in turn is the man supposed to have the slip to go to the doctor. Because I wouldn’t know what doctor to send them to.”
Tarpey, the timekeeper, denied that Wis-by reported the claimant’s injury to him, but further testified that it was Wisby’s duty so to do: “Q. And he is supposed to report these injuries to you or Mr. David or somebody in charge of him, does he? A. Yes, sir.”
Mr. David, the man conceded by the employer to be its agent in charge of unloading the ship, testified: “Q. ■ Does the walking foreman in the position Wisby occupied, does he have instructions to tell you about any injuries? A. That is the regular procedure.”
Mr. Harris, one of the employer partners, testified: “Q. If Wisby had notice of an injury, wouldn’t it be part of his duty to tell Mr. Tarpey or Mr. David? A. Yes, sir. * *
When the undisputed evidence establishes both that knowledge of the claimant’s injury was brought home to the foreman, and that it was the foreman’s duty to report it to his employer, it is clear to my mind that the consequences of the failure of the foreman to perform his duty should be visited on the employer, not on the claimant.
In Merritt v. American Stevedores, 195 A. 382, 385, 15 N.J.Misc. 710, the court held that:
the knowledge of the foreman under whose direct and immediate supervision the employee worked from day to day must be regarded as the imputed knowledge of the employer; that, under the compensation act, “humanely conceived for the benefit of the more or less uneducated laborer,” he cannot be held “to a greater burden than to bring home knowledge to the person with whom he is accustomed to deal in the corporation’s behalf.”
In Fear-Campbell Co. v. Yearion, 88 Ind. App. 382, 164 N.E. 282, 284, the court said:
“A workman had received an injury by accident, arising out of and in the course of his employment, and his foreman had knowledge of these facts and should have reported the same to his superiors. His failure so to do cannot be charged against the appellee.”
*729The two cases just cited are typical of hundreds which might be collected. 58 Am.Jur., Workmen’s Comp., Sec. 385, p. 832 ; 71 C.J. 993, Workmen’s Compensation Acts, Sec. 771; Annotations 78 A.L.R. 1258, 92 A.L.R. 515, 516; 107 A.L.R. 823; 145 A.L.R. 1293, 1296; L.R.A.1918E, 561, 564; Ann.Cas.l917D, 874.
It has been pointed out that the Federal Longshoremen’s and Harbor Workers’ Compensation Act was patterned largely upon the New York Workmen’s Compensation Law. Terminal Shipping Co. v. Branham, D.C., 47 F.Supp. 561, affirmed 4 Cir., 136 F.2d 655; Case v. Pillsbury, D.C., 52 F.Supp. 882, affirmed 9 Cir., 148 F.2d 392.1 The notice requirements are similar though the New York Act is more explicit. See Sec. 18 of the New York Statute set out in 3 Schneider, Workmen’s Compensation Statutes, p. 2556. New York is in line with courts throughout the Country in holding that a foreman’s knowledge of an accident or injury is the knowledge of the employer, so as to dispense with the necessity of giving a written notice. Krakat v. Weather-wax, 251 App.Div. 912, 297 N.Y.S. 215; Matter of Hughes v. St. Patrick’s Cathedral, 245 N.Y. 201, 203, 156 N.E. 665; In Matter of Finch v. Buffalo Envelope Co., 218 App.Div. 31, 35, 217 N.Y.S. 744, 747, it was said:
“If the accident is promptly described to him or his superintendent by the injured employee, or by some one who knew the facts, the employer has knowledge of the accident within the meaning of the statute.”
In 2 Larson’s Workmen’s Compensation Law, Sec. 78.31(b) the rule is thus stated:
“Generally, in order that the knowledge be imputed to the employer, the person receiving it must be in some supervisory or representative capacity, such as foreman, physician or nurse; knowledge of a mere co-employee is not sufficient. But any degree of authority which places a man in charge of even a small group of workers is enough to confer this representative status.”
Let me again quote the pertinent provision of 33 U.S.C.A. § 912(d):
“Failure to give such notice shall not bar any claim under this chapter (1) if the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier had knowledge of the injury or death and the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (2) if the deputy commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given 4c ¡je He »
It is sufficient if either the employer or his agent in charge had knowledge of the injury. With deference, it seems to me that the effect of the majority decision is to confront us with a dilemma either to strike the first alternative, or to require that the knowledge by the employer be gained first hand as an eye witness. The second horn is no more admissible than the first. Employers of longshoremen, I believe, are usually firms or corporations of considerable size. The only way in most cases that such employers can have knowledge of an injury is through their agents. That is recognized by another section of this same Act, 33 U.S.C.A. § 907, permitting the employee to recover for medical treatment or services when “the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide the same”. The present claimant is in the anomalous position, according to the majority, that there was sufficient knowledge of his injury to render his employer liable for his medical expenses, but not sufficient knowledge for him to recover compensation. I do not think that Congress in an act intended to compensate longshoremen, day laborers, intended any such fine spun technical distinction. I submit that when knowledge is brought home to the foreman who is under a duty to report the injury, that is knowledge of the employer.
*730Finally the section empowérs the deputy commissioner to excúse the failure to give notice “on the ground that for some satisfactory reason such notice could not be given”, 33 U.S.C.A. § 912(d[2]), and the deputy commissioner has undertaken to exercise that power. The reasons which the deputy commissioner considered satisfactory are set out in footnote 2 of the majority opinion. If those reasons, considered together as a whole, are viewed from the employee’s standpoint, it seems to me that they are adequate and sufficient, indeed compelling reasons why the thirty day notice could not be given. The power vested by Congress in the deputy commissioner to excuse timeliness of notice is in extremely broad terms. Bethlehem Steel Co. v. Parker, 4 Cir., 163 F.2d 334. In my opinion, the deputy commissioner did not abuse the discretion with which he was vested.
For each of the reasqns stated, I respectfully dissent.
. See also Employers’ Liability Assurance Corp. v. Monahan, 1 Cir., 91 F.2d 130, 133; Spencer-Kellogg & Sons v. Willard, 3 Cir., 190 F.2d 830, 832.