dissenting:
The majority states that there is no “helpful precedent to guide us in the application of this section to the unusual facts of this case.” I, however, believe that a recent ease from the Tenth Circuit, In Re Delgado, 967 F.2d 1466 (10th Cir.1992), is instructive. In Delgado, an injured employee received a lump sum workman’s compensation settlement which she placed in a certificate of deposit maturing in five years. She also took out a loan in which she granted the bank a security interest in the certificate and assigned the certificate as collateral. The Tenth Circuit held that the bank’s security interest in the certificate was not enforceable under Kansas’s statute prohibiting assignment of worker’s compensation benefits. The Tenth Circuit explained that:
the Kansas provision defines compensation as including the actual payments and nowhere is there a limitation that the exemption applies only to security interests or assignments entered into before the compensation is actually paid- [W]e recognize that [the injured employee] will receive a windfall by recovering the certificate of deposit funds after having spent the loan proceeds which have not been repaid. To avoid such a situation, a bank would need to inquire concerning the source of funds which will serve as security for a loan. In this case, though, the Bank was fully aware that the workmen’s compensation award was placed in the certificate of deposit which served as security. By structuring the transaction so as to control the compensation funds before extending credit to its long-time customer, the Bank took a risk.
Delgado, 967 F.2d 1466, 1468. Similarly, I believe that the assignment in this case was not valid. Sloma may “receive a windfall by recovering [the annuity installments] after having spent the loan proceeds which have not been repaid.” But, just as the injured employee in Delgado was entitled to the windfall, Sloma is entitled to the windfall under 33 U.S.C. § 916. When it secured Sloma’s loan with an assignment of the annuity that he received as compensation under the Longshore and Harbor Workers’ Compensation Act, the First Bank of Linden simply took a risk that did. not pay off.
Section 916 provides: “No assignment ... of compensation or benefits due or payable ... shall be valid.” The majority emphasizes the words “due or payable.” Apparently, it believes that these three words mean that section 916 only invalidates an assignment of compensation that is to be received in the future. I disagree for the reasons explained in Delgado,1
Even under the majority’s interpretation of section 916, I believe that the assignment in this ease was invalid. The majority explains:
There can be no doubt that had the employer paid Sloma $180,000.00 in cash, he could have used it in any way he desired. Here the employer paid Sloma $180,000.00, $10,000.00 in cash and the purchase of an annuity for $170,000.00. We see no material difference whether the employer paid for the annuity or whether the employer paid Sloma $170,000.00 with which he purchased the annuity_ The payments received by Sloma under the annuity contract were not due and payable under the Act.
Thus, the majority argues that because Slo-ma’s employer purchased an annuity for him, thereby satisfying its obligations, Sloma was able to assign the installments of that annui*642ty.2 That, however, is not what happened in this case.
In its findings of fact, the bankruptcy court found: “The settlement provided for the establishment of an annuity issued by Manufacturers Life Insurance Company (“Manufacturers”). The annuity policy provided that Sloma would receive monthly payments ... and lump sum payments ... The policy expressly provided that National Union was the owner of the policy.”3 Thus, the employer never purchased an annuity for Sloma; instead, the employer’s insurance carrier, National Union, purchased an annuity in which it maintained ownership. Because of this subtle difference, I believe that Sloma was still in the course of receiving compensation “due or payable” under the majority’s interpretation of section 916.
The annuity policy was the result of a settlement that was approved by the United States Department of Labor pursuant to 33 U.S.C. § 908(i). Section 908(i)(3) provides: “A settlement approved under this section shall discharge the liability of the employer or carrier, or both.” Thus, the majority was correct when it stated: “Upon payment of the $180,000, Sloma’s employer and its carrier were discharged of any further obligation or liabilities to Sloma.” Sloma’s employer, however, and its carrier, National Union, had not made the full payment of the $180,000 because National Union owned the annuity policy. Sloma merely stood as an intended third party beneficiary of the annuity contract between National Union and Manufacturers. As a result, the $180,000 had not been paid (past tense) to Sloma. Sloma was simply entitled to the installments of the annuity contract, which National Union owned; thus, he was still in the process of receiving “compensation or benefits due or payable." Therefore, the compensation could not be assigned to the First Bank of Linden.
In sum, I believe that the majority has incorrectly interpreted 33 U.S.C. § 916 as only invalidating assignments of compensation that has not been paid (past tense). Instead, the statute should be read in accordance with the Tenth Circuit’s approach in Delgado. I also believe that even under the majority’s interpretation of section 916, the facts of this case indicate that the compensation had not been paid (past tense), and therefore, the assignment was not valid.
. Admittedly, the Kansas statute in Delgado expressly provided: " 'no ... compensation ... paid[] shall be assignable.' ” Delgado, 967 F.2d 1466, 1467. It expressly included " 'claim[s] for compensation, or compensation agreed upon, awarded, adjudged or paid.' " Delgado, 967 F.2d 1466, 1468. Thus, the Tenth Circuit emphasized the past tense in arriving at its holding.
. "An annuity contract is the exact inverse of a life insurance contract. In return for a lump sum, the insurance company typically promises the annuitant periodic payments that will continue until the death of the annuitant. The lump sum is determined by the life expectancy of the annuitant, and, in this case, the insurance company gambles that the annuitants will die prior to the actuarial predictions.” Variable Annuity Life Ins. Co. v. Clarke, 998 F.2d 1295, 1301 (5th Cir.1993).
. "The bankruptcy court's factual determinations are subject to review under the clearly erroneous standard.” In Re Club Associates, 956 F.2d 1065, 1069 (11th Cir.1992). No showing of clear error regarding this fact has been made.