216 A.D. 274 | N.Y. App. Div. | 1926
Lead Opinion
The question involved in this appeal is stated at the outset of the respondent’s brief as follows:
“ The respondent concedes that the employment of the plaintiff,, appellant, was one which would • come within the jurisdiction of the admiralty law. But the respondent contended at Trial Term that the plaintiff had by his voluntary act waived his right to sue in admiralty, and had agreed to become subject to the Workmen’s Compensation Law of the State of New York.”
The pleadings admit that the defendant was engaged in the business of repairing steamships in and about the harbor of New York; that prior to January 2, 1925, the defendant made a contract with the owner of the steamship President Arthur to perform “ certain repair work ” upon said vessel; that on January 2, 1925, said steamship was lying at the plant of the defendant in the navigable waters of New York harbor; and that on said day plaintiff was in the employ of the defendant and engaged in the discharge of his duties pursuant to his employment upon said steamship. Further allegations (which the answer denied) were that while in the performance of his work, plaintiff was caught by a rope or tackle which had been attached to an iron or steel bar, resulting in his being dragged from the ship “ into the navigable waters of New York Harbor ” and thereby injuring him; and that his injuries were due to the negligence of the defendant in failing to provide him with competent fellow-workmen, a safe place to work, proper appliances, and omission to promulgate and enforce proper regulations for the conduct of the work. There was some evidence that the deck of the vessel was icy, that the rope that was being used to move the iron was wet from snow, and that there was a customary manner of moving and lowering this particular kind of iron by means that were not followed. Flowever, no question is presented as to the sufficiency of the evidence to establish a cause of action, the defendant relying wholly upon the claim
" Brooklyn, N. Y. 1/21, 1924.
“ I, Fred Christensen, residing at 270-48 Street, Brooklyn, N. Y. while in the employ of Morse Dry Dock & Repair Co., hereby elect and agree to be subject to the provisions of the Workmen’s Compensation Law of the State of New York, and in so electing and agreeing, I waive any right to myself, my heirs, assignees or executors in any court of admiralty or courts of the State hmiting whatever rights I may have to be governed and settled by the provisions of the said Workmen’s Compensation Law.
“ The Morse Dry Dock & Repair Co. will comply with the provisions of the Workmen’s Compensation Law and agrees to secure the payment of compensation to this employee in accordance with the provisions of the Workmen’s Compensation Law, State of New York.”
The learned trial justice dismissed the complaint at the close of the plaintiff’s case upon the authority of Holland v. Atlantic Stevedoring Co. (210 App. Div. 129), and in the course of an oral opinion furthermore relied upon the affirmance of the Holland case by the Court of Appeals (239 N. Y. 605). While our decision, adopting the opinion of the Special Term, holds that plaintiff’s “ contracting to submit to the Workmen’s Compensation Law, where his employer had likewise waived its right by contract and also submitted, must be given full force and effect, as in law a voluntary act of both of them,” the affirmance by the Court of Appeals proceeded upon an entirely different ground, namely, that the facts were “ sufficient to show an accord and satisfaction or a release by a payment in full,” thus leaving the question now presented open for decision.
We are also informed that the Appellate Division, Third Department, in McEntee v. City of New York (207 App. Div. 878), by a unanimous affirmance, but without opinion, of an award made by the State Industrial Board, have decided the validity of a like waiver to that involved here, but we find that the appeal in that case to the Court of Appeals was dismissed, without opinion (237 N. Y. 523, decided November 27, 1923), again leaving us without an authoritative declaration of the law by our highest State court. The dismissal of the appeal in the McEntee case by the Court of Appeals was without the benefit of the decision of the United States Supreme Court in State of Washington v. Dawson & Co. (264 U. S. 219, decided February 25, 1924). The State of Washing
Whether the Workmen’s Compensation Law of the State of Washington was optional (sometimes called elective) or compulsory does not appear from the opinion of the United States Supreme Court.
Section 113 of the New York Workmen’s Compensation Law (Laws of 1922, chap. 615) is as follows:
“ § 113. Interstate commerce. The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, provided that awards according to the provisions of this chapter may be made by the Board in respect of injuries subject to the admiralty or other Federal laws in case the claimant, the employer and the insurance*278 carrier waive their admiralty or interstate commerce rights and remedies, and the State insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter.”
Does the act “ contravene the essential purpose of or work material prejudice to the characteristic features of the general maritime law,” or “ interfere with the proper harmony and uniformity of that law in its international and interstate relations?”
Article 3, section 2, subdivision 1, of the United States Constitution extends the judicial power of the United States “ to all cases of admiralty and maritime jurisdiction.” This reference in the Constitution, as was declared by Mr. Justice Bradley in The Lottawanna (88 U. S. [21 Wall.] 558, 574), is to “ The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted,” and that it was not the intention of this provision “ to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign States.” Article 1, section 8, subdivision 18, of the Federal Constitution confers on Congress the authority to make all laws necessary to carry into execution the powers vested in the government or any department thereof by the Constitution. Pursuant to this authorization, the United Slates Judicial Cole gives to the District Courts of the United States exclusive original jurisdiction “ of all civil causes of admiralty and maritime jurisdiction,” except that it saved “ to suitors in all cases the right of a common-law remedy where the common law is competent to give it.” (Judicial Code, § 24, subd. 3; Id. § 256, subd. 3.) What was savéd “ to suitors? ” Así read the decisions, they uniformly hold that this saving clause does not confer upon a suitor the right to choose between the principles of the maritime law and the local law with respect to the determination of his rights and remedies, but simply served to confer upon him the privilege of having his rights and obligations, as sanctioned by the maritime law, administered through the medium of a State tribunal when that tribunal is competent for the purpose. (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 384; Knickerbocker Ice Co. v. Stewart, supra, 159; The Moses Taylor, 4 Wall. 411, 431; Knapp, Stout & Company v. McCaffrey, 177 U. S. 638, 644.) Except for the reservation the jurisdiction of the Federal courts is “ exclusive,” and nothing in any of the opinions of the United States Supreme Court can be pointed to in support of any theory that there could be substituted for this peculiar jurisdiction of the
The distinguished writer of that opinion had occasion subsequently in two cases to point out the limitations of the Rohde case. Thus, in State of Washington v. Dawson & Co. (supra, 226), he said: “ Grant Smith-Porter Ship Co. v. Rohde was a proceeding in admiralty to recover damages from the shipbuilder for injuries which the carpenter received while working on an unfinished vessel moored in the Willamette River at Portland, Oregon. ‘ The contract for constructing “ The Ahala ” was nonmaritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde’s general employment, nor his activities at the time had any direct relation
Again, in Robins Dry Dock Co. v. Dahl (266 U. S. 449, 457), where it was necessary to define the employee’s' work as maritime, he said: “The alleged.tort was maritime, suffered by one doing repair work on board a completed vessel. The matter was not of mere local concern, as in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476, but had direct relation to navigation and commerce, as in Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479. The rights and liabilities of the parties arose out off and depended upon the general maritime law and could not be enlarged or impaired by the State statute.” (Citing, amongst other cases, the Chelentis Case, supra.)
Concededly, the case we are now reviewing is not one of ship construction, as was the fact in the Rohde case, but one of ship repair after a voyage. It seems to me, therefore, that there can be no doubt about the holding in the Rohde case, and that it was not a decision that elective or optional provisions in a State workmen’s compensation law could supersede or abrogate the administration of admiralty jurisdiction, but was exactly, in this respect, the same as though the accident had occurred on land, as in State Industrial Comm. v. Nordenholt Corp. (259 U. S. 263). The Rohde case, like the Nordenholt case, was a matter of “ mere local concern ” and had no “ direct relation to navigation and commerce,” the distinguishing characteristic of all the authorities involving a maritime - tort occurring on navigable waters whether in repairing or reconditioning a ship or loading or unloading it. All of the maritime torts where the workmen’s compensation laws were held ineffectual proceeded upon the distinct theory that it was the subject-matter that was involved; that is to say, “ The rights and liabilities of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the State statute.” (Dahl Case, supra.)
Our Workmen’s Compensation Law (Consol. Laws, chap. 67, as amd. by Laws of 1922, chap. 615), upon which section 113 now under review has been engrafted, is not an amendment to the common law, but the establishment of heretofore unknown obligations, compensations and methods of procedure all different from and in place of those afforded by the common law. The general purpose of the act was to substitute, in cases to which it is applicable,
A well-settled principle of law is that jurisdiction of the person, but not jurisdiction of the subject-matter, may be conferred by consent. As was said by Judge Cullen, speaking of “ jurisdiction of the court,” in Benson v. Eastern Bldg. & Loan Assn. (174 N. Y. 83, 86): “ That, jurisdiction is prescribed by the Constitution of the State and the statutes passed under it. It can neither be added to nor subtracted from by the agreement of the parties. It is true that ' Parties, by their stipulations, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce ’ (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447), but the jurisdiction of the court is beyond the agreement of the parties.” (Italics mine.) Again, per Pound, J., in Patrone v. Howlett (237 N. Y. 394, 397): “ Jurisdiction herein relates to the subject-matter of the action and cannot be conferred by consent.” As I view it, the State is impotent to confer jurisdiction over the subject-matter of a maritime tort to the State Industrial Board or a Workmen’s Compensation Commission, either with or without the consent of its subjects, because there is a total want of power to substitute this new court or forum in place of the courts provided by the Federal Constitution and pointed out in the many decisions.
In Duart v. Simmons (231 Mass. 313, 319), where the elective provisions are contained in the State statute, it was said, per Rugg, Ch. J.: “ The ground of the Jensen decision as we understand it is that the kind of legislation represented by workmen’s compensation acts is beyond the jurisdiction of the States so far as it relates to admiralty and maritime affairs. The reasoning of that decision seems to us to apply equally to an elective as to a compulsory workmen’s compensation act. Consent of parties cannot confer jurisdiction. A statute which in its nature is outside the jurisdiction of the State because within the exclusive domain of the Federal government, cannot confer rights or be a bar to the enforcement of common law obligations.” A similar ruling was made in another Massachusetts case (Dorman’s Case, 236 Mass. 583) and in several other States where elective as distinguished from compulsory workmen’s compensation acts were under consideration. (Neff v. Industrial Comm., 166 Wis. 126; Soderstrom v. Curry & White, Inc., 143 Minn. 154; Foppen v. Fase & Co., 219 Mich. 136; O’Brien v. Scandinavian-American Line, 94 N. J. L. 244; Lee v. Fletcher Co., 4 Fed. [2d] 3.) In neither Danielsen v. Morse Dry Dock & Repair Co. (235 N. Y. 439, 442) nor in Matter of Lahti v. Terry & Tench Co. (240 id. 292) was the question
It now becomes necessary to consider the case of Red Cross Line v. Atlantic Fruit Co. (264 U. S. 109). That case involved a proceeding to compel arbitration, under our New York State Arbitration Law (Laws of 1920, chap. 275), of a claim resting upon an alleged breach of contract of a charter party. Our Court of Appeals (Matter of Red Cross Line v. Atlantic Fruit Co., 233 N. Y. 373) held that the dispute involved a question of jurisdiction of the admiralty court, and that a State court was powerless to order a party to proceed to arbitration, a clause in the charter party providing for the arbitration of disputes arising thereunder. The United States Supreme Court reversed (Mr. Justice Brandéis delivering the opinion). To obtain a clear understanding of the situation there considered, it is important, to my mind, to mark the distinction obtaining between substantive and remedial law. Remedies exist and may be, and frequently are, applied in the redress of wrongs or the maintenance of rights that are not within the domain of litigation. Thus, as was said in State v. Barlow (70 Ohio St. 363, 376): “ Redresses are of four kinds: 1. By act of the party injured, the principal of which are defense, recaption, distress, entry, abatement, and seizure; 2. By operation of, law, as in the case of retainer and remitter; 3. By agreement between the parties, e. g., by accord and satisfaction and arbitration; and 4. By judicial remedy, e. g., action or suit.” “ The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury.” (Chelentis Case, supra, 384.)
Recurring now to Mr. Justice Brandéis’ opinion in the Bed Cross Line case, I think it will be found that the learned court held no more than that the Arbitration Law of New York, which it was enforcing, “ deals merely with the remedy in the State courts in respect of obligations voluntarily and lawfully incurred,” and that the act “ does not attempt either to modify the substantive maritime law or to deal with the remedy in courts of admiralty.” As I read that case, the ground of the decision was that our Arbitration Law simply affords a remedy for the enforcement of the rights and obligations of the parties according to the principles of the maritime law; and that the remedy so afforded is one which does not change the substantive maritime law and does not attempt to “ modify ” or to “ displace ” the essential features of that law.
A cursory examination of our Arbitration Law will reveal the distinction between it and the Workmen’s Compensation Law as a forum. The Arbitration Law (as amd. by Laws of 1921, chap. 14, and Laws of 1923, chap. 341) does not attempt to state what the substantive rights of the parties are nor the measure of compensation to be accorded the injured party upon the determination of his rights. It provides for the application of the provisions of our Civil Practice Act (§ 1448 et seq., as renum. by Laws of 1921, chap. 199, from § 1410 et seq.) relating to arbitration, in the course of which confirmation of the award of the arbitrators must be had from the court, and judgment duly entered thereon if the award has not been vacated or set aside for reasons specified in the Civil Practice Act. We thus have strikingly different provisions in the Arbitration Law from those contained in the Workmen’s Compensation Law. And thus it was, as it seems to me, that the United States Supreme Court in the Red Cross Line Case (supra) determined that the agreement to proceed to arbitration was a remedy and not a right. It was significantly added by Mr. Justice Brandéis, as showing the distinction between State statutes dealing with substantive maritime law and statutes providing a remedy to be applied according to the principles of maritime law, that “ In no case has this court held void a State statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.”
In Matter of Berkovitz v. Arbib & Houlberg (230 N. Y. 261), in which our Arbitration Law was discussed by Judge Cardozo with his usual force and ability, it was pointed out that the statute was “ directed solely to the remedy.” Such was the opinion of the Circuit Court of Appeals, Second Circuit, in Atlantic Fruit Co. v. Red Cross Line (5 Fed. [2d] 218, 219), where Circuit Judge
It is suggested that the plaintiff could have given a general release and, therefore, the parties could effectuate the agreement now involved. The distinction between a release of a right of action, either before or after suit.brought, and the agreement before us, seems marked. In the case .of a release the parties put an end to litigation by steps that are sanctioned by the common law and are in harmony with the principles of the maritime law. In the case of the agreement to submit their maritime rights, obligations and liabilities to the State Industrial Board, the parties are consenting to confer jurisdiction of subject-matter upon a tribunal in which such jurisdiction cannot be lodged. That such board is a judicial tribunal (created by the Legislature) in view of its determining powers and the right of review of its findings by our appellate courts seems to me to admit of no question.
The last decision of the United States Supreme Court bearing upon the present case is Miller’s Indemnity Underwriters v. Braud (-U. S.-, decided February 1,1926). There, compensation was claimed under the law of Texas for the death of a “ diver ” who subrherged himself from a floating barge anchored in a navigable river for the purpose of sawing off the timber of an abandoned set of ways, once used for launching ships, and while thus submerged the air
The discussion in which I have indulged leads me to the conclusion that where a suitor claiming a personal injury to have resulted from what is known as a maritime tort, resorts to a State court for the purpose of having his right of action determined pursuant to the rules of law fixed by maritime jurisprudence, he cannot be ousted because of an agreement voluntarily entered into by him to substitute a State Workmen’s Compensation Law in the place and stead of his common-law remedy saved to him by the Federal statute.
If the views expressed are correct, it follows that the dismissal of the complaint was error, and that the judgment should be reversed upon the law, and a new trial granted, costs to abide the event.
Rich and Jaycox, JJ., concur; Kelly, P. J., concurs in the result in separate memorandum; Lazansky, J., dissents and reads for affirmance.
See Judiciary Act of 1789 (1 U. S. Stat. at Large, 76, 77), § 9, as continued by the United States Revised Statutes (§ 563, subd. 8; § 711, subd. 3) and by the United States Judicial Code (supra).— [Rep.
Concurrence Opinion
I concur in the result. I do not think the decision in Holland v. Atlantic Stevedoring Co. (210 App. Div. 129; affd., 239 N. Y. 605), cited by the learned trial justice,. validates the alleged contract relied upon by the defendant. In the case at bar the plaintiff, who had been working on ships and vessels all his life, testified, and his testimony was not contradicted, that when he applied to the defendant for work
Dissenting Opinion
The voluntary adoption by the parties of the law of this State as the basis of their relationship as to maritime torts, uncoerced by, and not contrary to the public policy of, the sovereign power, is not, it seems to me, within the scope of the United States Supreme Court decisions insistent on the uniformity of the maritime law.
The judgment should be affirmed, with costs.
Judgment reversed upon the law and a new trial granted, .costs to abide the event.
