227 Mass. 237 | Mass. | 1917
This action of tort for personal injuries was brought under the provisions of the workmen’s compensation act, St. 1911, c. 751. The plaintiff contends that, as the defendant was not a subscriber under the terms of the act, the defences of contributory negligence, assumption of risk and negligence of a fellow servant are not open to it by virtue of Part I, § 1. The main contention of the defendant is that the plaintiff was not one of those employees for whose benefit the statute was enacted, and that consequently he cannot recover, in this action.
The following material facts are taken from the report of the trial judge: The plaintiff was the mate of the Francis C. Hersey, a harbor towboat owned and operated by the defendant. This towboat was engaged entirely within the limits of Boston Harbor. The defendant also owned and operated a barge called the Helen, which admittedly was employed in interstate commerce between Virginia and Massachusetts in the coal trade. When loaded with coal it was drawn by an ocean-going tug from Hampton Roads to Boston, was anchored “down on the flats in the harbor,” and from there towed by a towboat like the Francis C. Hersey to the Lewis Coal Wharf in Chelsea. On the morning of the accident the Helen was lying at Lewis Wharf, having completely unloaded
At the time the accident happened, the captain of the Helen was on the wharf for the purpose, preparatory to towing the barge, of casting off a hawser which made the bow of the barge fast to the wharf. The donkey-engine, from which the steam or boiling water came, was used for heaving in hawsers and the anchor-chain, and was started upon the order of the captain given from the dock. After the accident the towboat Hersey took the hawser from the barge Helen and towed the barge down to Castle Island in Boston Harbor where it would lie awaiting an ocean-going tug to tow it to Virginia.
By St. 1913, c. 568, the Legislature expressly excluded from the operation of the Massachusetts workmen’s compensation statute “masters of and seamen on vessels engaged in interstate or foreign commerce.” See The Hamilton, 207 U. S. 398; Souden v. Fore River Ship Building Co. 223 Mass. 509; Kay’s Shipmasters & Seamen (2d ed.) § 467; 35 Cyc. 1244. As the towboat on which the plaintiff was master, plied only within the limits of Boston Harbor, it may be assumed that at times it was engaged in work that plainly was of intrastate character. The decisive question in this case is, was the towboat Hersey engaged in interstate commerce, within the meaning of the statute, at the time when the plaintiff was injured. And the test of that employment is, was the Hersey at that time “engaged in interstate transportation or in work so closely related to it as to be practically a part of it.” See Shanks v. Delaware, Lackawanna & Western Railroad, 239 U. S. 556, 558.
Interstate commerce in a legal sense embraces not only the
At the time of the plaintiff’s accident the.tug Hersey had run under the bow of the barge Helen, preparatory to towing it down to the flats. The captain of the Helen was on the wharf for the purpose of casting off the hawser; and the donkey-engine, which was used in heaving in the hawser, was started. At that time the purpose of the movements of the plaintiff and of the tug, was to reach and move an interstate vessel. See Louisville & Nashville Railroad v. Parker, 242 U. S. 13, 14. In North Carolina Railroad v. Zachary, 232 U. S. 248, it was held that acts of a locomotive fireman in oiling and preparing his engine for a trip to move freight in interstate commerce, although done prior to the actual coupling up of the interstate cars, are acts done while engaged in interstate commerce under the federal employers’ liability act. It was said in St. Louis, San Francisco & Texas Railway v. Seale, 229 U. S. 156, 161, that interstate transportation is not ended by the arrival of the train at the terminal, "Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering
This conclusion renders it unnecessary to consider the further contention of the defendant that the Hersey was engaged in interstate commerce by reason of the fact that it was transporting a bundle of fish to the barge Helen where it was to be eaten by the crew of the barge on its trip to Virginia. See United States v. Colorado & Northwestern Railroad, 157 Fed. Rep. 342; Northern Pacific Railway v. Washington, 222 U. S. 370; United States v. Colorado & Northwestern Railroad, 85 C. C. A. 27.
The instant case is reported upon the stipulation that if the verdict for the defendant was properly ordered final judgment is to be entered for the defendant. As the plaintiff’s sole claim was made under St. 1911, c. 751, and as that statute is not applicable to “masters of and seamen on vessels engaged in interstate or foreign commerce,” for that reason and in accordance with the terms of the report the entry must be
Judgment for the defendant.