207 A.D. 381 | N.Y. App. Div. | 1923
The complaint was drawn so that it might be brought within the purview of the old Employers’ Liability Act, which was formerly section 200 et seq. of the Labor Law of 1909 (as amd. by Laws of 1910, chap. 352; now Employers’ Liability Law of 1921, § 2 et seq.) The complaint alleges the giving of a notice under that act, and it pleads the negligence of the defendant, its agents and servants, and one of the persons engaged in the service of the defendant, and intrusted with authority “ to direct, control or command ” the plaintiff; the latter words being the words of the statute.
On this appeal the plaintiff invokes the provisions of the Employers’ Liability Act as a ground for reversing the trial judge’s ruling that the negligent act, if any there was, was the act of a fellow-servant.
The appellant’s first point is that the Federal statute (Merchant
Section 4612 of the United States Revised Statutes, which is a part of title 53, entitled “ Merchant Seamen,” provides as follows: “ In the construction of this Title, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the ‘ master ’ thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a ‘ seaman.’ ” In particulars here immaterial this section has been amended. (See Seamen’s Act of 1898 [30 U. S. Stat. at Large, 762], § 23; Seamen’s Act of 1915 [38 id. 1168], § 10.) Sections 3 and 4612 of the United States Revised Statutes also define the word or term “ vessel ” when used in the Federal statutes.
The plaintiff claims, under this last section of the law, that a longshoreman is a seaman within the purview of the Merchant Marine Act of 1920. Notwithstanding the cases cited, which on first reading would tend to support this construction of the law, I think the plaintiff is in error. In the case of Cassil v. United States Emergency Fleet Corp. (289 Fed. Rep. 774) it was expressly held that a stevedore is not a seaman under the Merchant Marine Act of 1920. This ease was decided by the Circuit Court of Appeals for the Ninth Circuit in May, 1923. There the action was directly against the owner of the ship, the plaintiff being an employee of the Portland Stevedoring Company, which was engaged in loading it. The libel in that case alleged that while the plaintiff was assisting in the effort to land a sling load of lumber on a truck on said ship, the winchman, operating the winches of the ship, carelessly and negligently raised the sling load by a sudden, violent jerk whereby the
“ But it was not the intention of the statute to include as seamen longshoremen or stevedores. The heading of the title under which section 4612 is found is ‘ Merchant Seamen.’ The provisions under that title all relate to vessels belonging to citizens of the United States and the employment, wages, protection, discharge, and rights of merchant seamen. The statute was not intended to and does not enlarge the definition of ‘ seaman ’ as it was then understood and accepted in admiralty law. Generally speaking, a seaman is any one who, by contractual engagement with the owner, master, or charterer of a vessel, serves the vessel in navigation. He is not necessarily a sailor. He may be a cook, fireman, or even a bartender. A stevedore renders no service in actual navigation. It is true that he renders service incidental to navigation in loading and unloading vessels, a service which is maritime in its nature, but he is a landsman and he does not belong on the vessel, nor does he go with the vessel. It has never been held that stevedores are included in the definition contained in the section so quoted. In The Ole Oleson, [U. S. Dist. Ct.] 20 Fed. 384, it was held that longshoremen were but landsmen, and were not entitled to recover upon a libel for seamen’s wages. Saylor v. Taylor, 77 Fed. 476, 23 C. C. A. 343, cited by the appellant, is not in point. It goes no farther than to hold that engineers and employees of a dredge engaged in deepening navigable waters and capable of being towed from place to place are seamen.
“ There can be no doubt that for his injuries which were received while on board the vessel the appellant may bring a libel against his employer in the admiralty for damages as for a maritime tort. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733,
This case is, therefore, authority for the proposition that the so-called Jones Act, above quoted, does not include a longshoreman as a common seaman.
In Saylor v. Taylor (supra), a steam dredge without motive power,upon which the men were working, was held to be a vessel within the meaning of sections 3 and 4612 of the Revised Statutes of the United States and, therefore, within admiralty jurisdiction. There, plaintiffs were employed directly on the vessel and paid by the owners; and being employed on the vessel itself directly; they were entitled to a lien for their services and came within the definition of seamen. This appears to me as obviously different from the case at bar. - Each employee was essentially a part of the crew of the steam dredge. He stayed with it, did his work on it, and contributed, according to his capacity, to the success of the enterprise in which the dredge was engaged. It has been a long-recognized principle, said to come from the Laws of Oleron, that the ship stands responsible for the wages of the seamen. In the case at bar the plaintiff was not employed by the vessel or the owner of the vessel, but' by - the general stevedore. So, too, in the case of Ellis v. United States (206 U. S. 246), relied upon by the appellant. The persons there held to be “ sailors ” within the meaning of the act were employees of a dredge and received their pay directly, from the owners of the dredge, and did their work thereon entirely. An information was filed against the owners of the dredge for an alleged violation of the statute limiting to eight hours per day the hours of “ laborers and mechanics ” employed by the United States government or any contractor or sub-contractor upon any of the “ public works ” of the United States. (See 27 U. S. Stat. at Large, 340, chap. 352, being Federal Eight-hour Law of 1892.) It was alleged that the Eastern Dredging Company, in that case, employed certain men, alleged to be “ laborers or mechanics,” more than eight hours a day upon what was alleged to be one of the “ public works ” of the United States, namely, the dredging of a portion of the thirty-five
It will be seen, therefore, that these were employees of the dredges, which were “ vessels ” within the meaning of the statute, and they
The appellant’s second point is that even if the Federal Merchant Marine Act of 1920 were not available in this action, the maritime law would apply the rule of the State Employers’ Liability Act (Labor Law of 1909, § 200 et seq., .as amd. supra) concerning the fellow-servant defense. This precise point was before this court in the case of Tomachio v. Carter & Weekes Stevedoring Co. (204 App. Div. 834). There the complaint of the plaintiff was dismissed upon the ground that the negligence complained of was that of a fellow-servant, for which the master was not hable. In that case the plaintiff had offered in evidence a notice under the Employers’ Liability Act, and this was excluded. This court held that there was no error and that the Employers’ Liability Act did not apply in an action in which the plaintiff was working in the hold of a ship when injured. On appeal to the Court of Appeals the judgment of this court was affirmed (235 N. Y. 586), and in the latter court the plaintiff again urged that the Employers’ Liability Act applied, as appears by the briefs on file with the original case on appeal.
I recommend that the judgment dismissing the complaint be affirmed, with costs.
Present — Kelly, P. J., Rich, Manning, Kelby and Young, JJ.
Judgment dismissing complaint unanimously affirmed, with costs.