323 Mass. 162 | Mass. | 1948
The self insurer appeals from a decree of the Superior Court awarding compensation under the workmen’s compensation law to the employee for an injury suf
The principal question relates to the applicability of the State compensation law. The board’s subsidiary findings of fact, which must control if there is any inconsistency between them and more general findings, are in substance these: The vessel was a four hundred seventy-five foot tanker chartered by the United States government. An explosion somewhere off Cape Cod had disabled her and had damaged about forty or fifty feet of her stern. She was towed to East Boston for repairs. Work was begun “June 8 to 28th.” The vessel was under repair until December 20, completion being delayed by the necessity of obtaining new castings. The employee had been for many years an iron worker and rigger on land. His employment by the self insurer began January 11, 1944. His work was variously on piers, dry docks and ships at the self insurer’s plant, where he was classified as a “rigger.” Some of the time as “top tag man” he directed the efforts of other “tag men,” fixing the hooks which were on the chains of the cranes to material to be moved and directing its movement from piers on land to dry docks or ships. There was much conflict in the evidence, including the testimony of the employee, as to the proportion of his time spent on the piers and the proportion spent on the dry docks and vessels, but the board found that as “tag man” the major portion of his work was on the piers, but occasionally it took him aboard vessels. The employee testified that at the time he was injured “he was going to get where his operator [the crane operator] could see him, so that he could give signals.” The floating dry dock was fastened to the pier to which it was berthed by bolts spanning a distance of three or four feet from the pier itself.'
We start with the established proposition that the Massachusetts workmen’s compensation law covers all longshore maritime injuries not excluded by the constitutional grant of .admiralty and maritime jurisdiction to the United States.
But since the decision in Southern Pacific Co. v. Jensen, 244 U. S. 205, it has been necessary to observe carefully the line of demarcation between State and Federal authority as defined by a series of decisions of the Supreme Court of the United States following that case. In O’Hara’s Case, 248 Mass. 31, decided in 1924, it appeared that the two injured employees were, at the times of their respective injuries, working on dry docks, one of which was floating and moored to piers and the other of which rested upon and was attached to land, and that each employee was engaged in the general work of repairing a previously completed vessel. The circumstances cannot, in our opinion, be distinguished in any material respect from those presented in the case at bar. This court reviewed at length the Federal decisions up to that time and stated as its conclusion the following: “The principle deducible as we think from all these decisions is that the rights and liabilities of parties with respect to injuries received by a workman engaged in repair of a completed vessel lying in navigable waters are governed by maritime law, because the work has direct relation to navigation and the injury occurs on navigable waters.” 248 Mass, at page 37. It was held that the State act did not apply, This court further held that a dry dock designed to receive vessels floating in navigable waters is itself part of the navigable waters and subject to admiralty jurisdiction, citing The Steamship Jefferson, 215 U. S. 130, 142, 143, and The Robert W. Parsons, 191 U. S. 17, 33, 34. See to the same effect Gonsalves v. Morse Dry Dock & Repair Co. 266 U. S. 171. A decision generally similar to that in O’Hara’s Case had also been made by this court in Ahern’s Case, 247 Mass. 512. A repair job on a previously completed vessel has been held to fall within Federal jurisdiction, even though the repairs require the laying up of the vessel for a long period, and even though they entirely change the character of the vessel and the uses for which it
Decisions of the Supreme Court of the United States since O’Hara’s Case was decided by this court were in accord with the rule there laid down until very recently. Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457. John Baizley Iron Works v. Span, 281 U. S. 222. If the matter rested at this point we should conclude that the decisions above cited furnished the necessary guide and required us to dismiss the claim under the State compensation law, as was done in O’Hara’s Case.
But the situation was definitely altered by the decision of the Supreme Court of the United States in Davis v. Department of Labor & Industries of the State of Washington, 317 U. S. 249, written by Mr. Justice Black in 1942. That was not a case of repairs upon a previously completed vessel. It was a case where the employee fell from a barge where he was examining steel that he had just helped to cut from a bridge which was in process of being dismantled. The significance of the case, however, lies in its obvious attempt to set up a means of escape from the difficulties involved in drawing the line between State and Federal authority under the doctrine of the Jensen case. The Davis case recognizes a presumptive quality in the decisions of Federal authorities under the longshoremen’s and harbor workers’ act and a presumption of constitutionality of the State acts as applied to particular cases. The decision does not overrule the Jensen case. It does, however, at least as appraised by Mr. Justice Frankfurter, who concurred in it, and by Chief Justice Stone, Who dissented from it, create a “twilight
We are the more inclined to include within the "twilight zone” the case of a workman engaged in an ordinary land occupation although occasionally going upon a dry dock or vessel to make repairs because in the latest case of that particular type decided in the Supreme Court of the United States, John Baizley Iron Works v. Span, 281 U. S. 222, although the case was held to be one exclusively of Federal cognizance, three of the justices dissented, and Mr. Justice Black in his opinion in the Davis case refers to the Baizley Iron Works case as if it were one of those responsible for the existing confusion. Moreover, the distinction between work
For the reasons stated we are of opinion that the case now comes within the workmen’s compensation law of this Commonwealth. The Supreme Court of Texas in Emmons v. Pacific Indemnity Co. 146 Texas, 496, sustained State jurisdiction in a very similar case in part for similar reasons. The Court of Errors and Appeals of New Jersey in De Graw v. Todd Shipyards Co. 134 N. J. L. 315, upheld State jurisdiction in a similar case but without citing the Davis case. The Supreme Court of the United States denied certiorari sub nomine Todd Shipyards Corp. v. De Graw, 329 U. S. 759. The decision of the Supreme Court of New Hampshire in Arcand v. Gutterson & Gould, Inc. 91 N. H. 194, came before the Davis case and was what our decision in this case would have been, except for the Davis case. Compare Hardt v. Cunningham, 136 N. J. L. 137.
We think it cannot be said that there was no evidence of partial incapacity due to the injury and continuing after January 2, 1946. There was evidence of loss of strength in the employee’s hand and pain in the knuckle's caused by this accident. It was for the board to say to what extent the employee's condition might have been improved by more exercise and to what extent he should be chargeable with neglect in this respect.
Decreé affirmed.
