Marshall

Appellants brought suit in the court below to set aside an order, made by appellee Marshall, as Deputy Commissioner, under the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C.A. § 901 et seq., by which order an award of compensation was made to appellee Hilda Aho. Appellees moved to dismiss the bill, the motions were sustained, and, from the judgment of dismissal entered, this appeal is taken.

The Salmon Bay Sand & Gravel Company, Inc., hereinafter referred to as appellant, on July 14, 1936, was engaged in the sand and gravel business at and in the vicinity of Seattle, Wash. Its plant and storage facilities were located at Seattle. As a part of its operations it contracted with the Wagner Tug Boat Company to tow a scow owned by it from its plant in Seattle to Steilacoom, Wash., at which point the scow was loaded with gravel and then returned to the plant at Seattle. This involved a trip of approximately 60 miles each way on navigable waters of the- United States, and about 24 hours were required to make a round trip. On these trips the tug and its tow would be from five miles to a quarter of a mile from shore; the latter distance being at Tacoma and Day…

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By the compensation order here in question, compensation was awarded for the death of a man who, so far as the evidence shows, is still alive. This man, Edward Aho, was last seen on July 14, 1936. He Was then alive and in good health. There is no evidence that he was then exposed to, or thereafter encountered, any specific peril, or came within the range of any impending or immediate danger, which might reasonably be expected to destroy life, or that he disappeared under circumstances inconsistent with a continuation of life. Therefore, his subsequent absence, being of less than seven years’ duration, raises no presumption that he is dead. Davie v. Briggs, 97 U.S. 628, 634 , 24 L.Ed. 1086 ; Fidelity Mutual Life Ins. Co. v. Mettler, 185 U.S. 308, 319 , 22 S.Ct. 662 , 46 L.Ed. 922 . See, also, Brownlee v. Mutual Benefit Health & Accident Ass’n (C.C.A.9) 29 F.2d 71, 75 ; United States v. Robertson (C.C.A.9) 44 F.2d 317, 319 ; State Life Ins. Co. v. Sullivan (C.C.A.9) 58 F.2d 741, 743 ; Sunny Point Packing Co. v. Faigh (C.C.A.9), 63 F.2d 921, 924 .

The Deputy Commissioner’s finding that Aho fell from his employer’s scow and was drowned is a mere conjecture. There…