Tartaglio v. Cunard White Star, Ltd.

RIFKIND, District Judge.

The question presented by this motion to strike the 5th affirmative defense is whether, in an action by a longshoreman *56against a third person for injuries caused by its negligence, a defense is sufficient which pleads that the plaintiff accepted compensation from his employer as provided by the Longshoremen’s and Harbor Workers’ Compensation Act, without also alleging that it was accepted “under an award in a compensation order filed by the deputy commissioner.”

Since the 1938 amendment of subdivision (b) of § 33 of the Act, 33 U.S.C.A. § 933 (b), it has been uniformly…