176 Misc. 389 | New York Court of Claims | 1941
The State moves to dismiss the claim on the ground that it fails to allege facts sufficient to constitute a cause of action against the State of New York. The motion is made upon the claim as filed herein and a stipulation of facts entered upon the record.
The claimant, Michael F. Otis, has filed said claim against the State of New York pursuant to the provisions of the Court of Claims Act and pursuant to the provisions of the so-called “ Jones Act,” being section 33 of the Merchant Marine Act of 1920 (41 U. S. Stat. at Large, 1007, chap. 250; U. S. Code, tit. 46, § 688).
It is the State’s contention that pursuant to the last sentence contained in section 12-a of the former Court of Claims Act (section 8 of the present act) which provides that “ nothing herein contained shall be construed so as to affect, alter or repeal any provision of the Workmen’s Compensation Law,” the only remedy available herein is under the Workmen’s Compensation Law, and that the Court of Claims does not have jurisdiction of this claim. Group 16 of subdivision 1 of section 3 of the Workmen’s Compensation Law provides that any employment by the State is within the provisions of the said statute. The claimant, however, contends that while, generally, the Workmen’s Compensation Law is the exclusive remedy available to an employee of the State, pursuant to the first sentence contained in section 12-a (supra), the liability of the State must be determined in accordance with the same rules of law as apply to an action in the Supreme Court against an individual or corporation; that if an individual or cor
Generally the Workmen’s Compensation Law is the exclusive remedy (Schwartz v. State of New York, 251 App. Div. 634; affd., 277 N. Y. 567), but the claim herein is the exception to the general rule because it comes within the admiralty jurisdiction of the United States.
Subdivision 1 of section 2 of article 3 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 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 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.” (The Lottawanna, 88 U. S. [21 Wall.] 558, at p. 574; 22 L. Ed. 654.) Subdivision 18 of section 8 of article 1 of the United States 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 that authorization, the United States Judicial Code 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); § 256, subd. third; U. S. Code, tit. 28, §§41, 371.)
The first case in which this subject was treated and a formal decision rendered by the United States Supreme Court was that of Southern Pacific Company v. Jensen (244 U. S. 205; 37 S. Ct. 524; 61 L. Ed. 1086). The widow of Jensen presented a claim for compensation under the New York Workmen’s Compensation Law. Jensen was operating an electric truck for the Southern Pacific Company and while driving the truck out of a vessel, docked in New York harbor, upon a gangway leading from the vessel to a pier, Jensen struck his head against a hatchway, thereby causing his death. The Court of Appeals held that claimant was properly'
Subsequent to the Jensen case Congress attempted to meet the objections therein stated by adding to the clause in the Judicial Code (supra) saving common-law remedies, the following words, “ And to claimants the rights and remedies under the Workmen’s Compensation Law of any State.” The validity of this amendment was first tested in another New York case (Stewart v. Knickerbocker Ice Co., 226 N. Y. 302), where the Court of Appeals held the amendment constitutional. The widow of a bargeman drowned in the Hudson river was held to be properly compensable under the Workmen’s Compensation Law. The United States Supreme Court reversed this decision (253 U. S. 149; 40 S. Ct. 438; 64 L. Ed. 834), holding that the amendment to the Judiciary Act was invalid as it attempted to destroy the uniformity of the maritime law by subjecting it to the variant compensation acts of the several States, and also was in effect a surrender of the legislative powers of Congress to the several States; that the compensation act was invalid in so far as it provided compensation in that case (Stewart being engaged in a maritime contract of employment and his injuries being of a maritime nature).
In 1922 Congress again attempted to amend the aforesaid clause of the Judiciary Act and to secure to persons engaged in maritime employment the benefits of the Workmen’s Compensation Acts of the States by adding to the aforesaid saving clause the words “ and to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the Workmen’s Compensation Law of any State * * *.” Again the United States Supreme Court held the amendment to be invalid. (Washington v. Dawson & Co., 264 U. S. 219.) In this case there was an attempt to compel an employee of stevedores, working on board ships in Puget Sound, to contribute to the accident fund maintained under the
Up to this point the efforts of Congress to impose the State Workmen’s Compensation Acts on maritime employments in general have been a futile process.
The aforesaid difficulties were finally circumvented by the Longshoremen’s and Harbor Workers’ Compensation Act. (March 4, 1927, chap. 509, § 3; 44 Stat. at Large, 1426; U. S. Code, tit. 33, § 903.) This act grants a Federal compensation to longshoremen, carpenters and others who board vessels in the course of their employment and are accidentally injured while upon or in navigable waters. This act, by its very terms, however, does not apply to State employees.
It, therefore, follows that the fundamental principle by which the validity of all maritime legislation is to be determined is the rule of uniformity. Any legislation by Congress or by the States which abrogates that uniformity is unconstitutional. (Panama R. R. Co. v. Johnson, 264 U. S. 375.)
The applicability of the foregoing principles has been adopted by the courts of the State of New York in numerous cases, among which are the following leading cases: Danielsen v. Morse Dry Dock & Repair Co. (235 N. Y. 439); Warren v. Morse Dry Dock & Repair Co. (Id. 445); Butler v. Robins Dry Dock & Bepair Co. (240 id. 23); McKinnon v. Kinsman Transit Co. (240 App. Div. 359); Dworkowitz v. Harlem River Towboat Line, Inc. (192 id. 855); Christensen v. Morse Dry Dock & Repair Co. (216 id. 274); Zampiere v. Williams Spencer & Sons Corp. (194 id. 576); Campanile v. Morse Dry Dock & Repair Co. (205 id. 480).
One of the earliest cases to follow the rule of the Jensen case (supra) was that of Kennedy v. Cunard Steamship Co., Ltd. (197 App. Div. 459). Plaintiff, a longshoreman, was working for defendant loading cargo on a steamship and was injured. Plaintiff was receiving compensation but when the United States Supreme Court handed down the decision in the Jensen case compensation was stopped and a common-law action was brought. At the close of the case the complaint was dismissed on the ground of contributory negligence. The Appellate Division reversed on the ground that it was a question for the jury. In anticipating admiralty questions that might arise on a new trial the court gives an interesting discussion of the history of the admiralty question. The Court of Appeals (235 N. Y. 604) affirmed the Appellate
It was thus assumed by both appellate courts that the plaintiff had properly brought a common-law action.
In Kursa v. Overseas Shipping Co., Inc. (217 App. Div. 775), in reversing the dismissal of the complaint, the Appellate Division held that as to maritime torts the general right of action for injuries resulting in death remains what it was before the passage of the Workmen’s Compensation Law and that whether the Workmen’s Compensation Law is elective or compulsory, neither can displace the admiralty jurisdiction of the Federal courts or the common-law jurisdiction of the Supreme Court of the State, citing the Warren and Christensen cases (supra).
One of the most recent cases on this question is that of Sells v. Marine Garage, Inc. (246 App. Div. 882), where it was held that the deceased was engaged in maritime employment at the time of the accident and that, therefore, the compensation court was not the proper forum, and the award was reversed and the claim dismissed.
This claim is properly prosecuted herein under the provisions of the so-called Jones Act (41 U. S. Stat. at Large, 1007, chap. 250; U. S. Code, tit. 46, § 688.)
The so-called “ Jones Act,” above cited, reads as follows: “ Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”
One of the earliest cases in the State of New York on the question of the applicability of this act was the case of Tammis v. Panama Railroad Co. (202 App. Div. 226 [1922]). The plaintiff, a resident of Richmond county, was a mariner, a ship’s carpenter, on the defendant’s steamship Christdbal. The defendant was a domestic corporation located in Manhattan. The plaintiff was injured by an allegedly defective engine which supplied steam for a windlass. Plaintiff brought an action under the Jones Act in the Supreme
Lynott v. Great Lakes Transit Corporation (202 App. Div. 613) in the same year (1922) held that an action for the death of a seaman killed by falling off an improperly constructed gangway on his way back to the boat was properly brought in the Supreme Court of the County of Erie, the court saying that the State courts have jurisdiction of maritime cases brought under the Jones Act. It is true, however, that no unequivocal declaration on this subject has been made. In the Lynott case (on p. 619) the most the court did say was the following: “ The section in respect to jurisdiction may well be construed to mean that jurisdiction in such actions shall be under the District Court of the United States of the district in which the defendant employer resides or in which his principal office is located, where the jurisdiction of the United States courts is invoked, and that the jurisdiction of the State courts otherwise remains as heretofore to apply a common-law remedy.”
The Court of Appeals of this State in Patrone v. Howlett (237 N. Y. 394 [1924]) expressed its views regarding this question of jurisdiction. There the court noted that this question of jurisdiction of the State courts is as yet unsettled by a decision of the United States Supreme Court. Although in Patrone v. Howlett the question of State jurisdiction was not expressly raised on the appeal, the court, in discussing the propriety of the trial court's charge regarding comparative negligence, did take up this question of jurisdiction. The court noted a split of authority on the jurisdictional question, citing Nox v. U. S. S. Board (193 N. Y. Supp. 340); Prieto v. U. S. S. Board (117 Misc. 703) and Wenzler v. Robin Line S. S. Co. (277 Fed. 812), all holding that the Federal District Court has exclusive jurisdiction and citing the Tammis and Lynott cases (supra) holding the State court had jurisdiction. Since the Court of Appeals had affirmed the Lynott case (234 N. Y. 626), and since the question of jurisdiction had not been raised by the appellant, the court refused to dismiss the complaint on its own motion for lack of jurisdiction. The Court of Appeals was of the opinion that the Jones Act “ does not expressly or by necessary implication take away the right to resort to the State courts. It
The latest declaration by the courts of this State on this subject is in Elliott v. Steinfeldt (254 App. Div. 739 [1938])." Although the act involved was the Federal Death on the High Seas Act (U. S. Code, tit. 46, §§ 761-768), the same principle was at issue, viz., whether plaintiff had the right to maintain the action in the State courts pursuant to the Judiciary Act of 1789 and sections 24 and 256 of the Judicial Code. (U. S. Code, tit. 28, §§ 41, 371.) In citing Patrone v. Howlett and Tammis v. Panama Railroad Co. (supra), the court said, “where the State courts have long enjoyed jurisdiction over the subject-matter of an action, jurisdiction is not withdrawn by Federal statute unless such an intention is distinctly manifested.”
It, therefore, follows that the only remedy available to the claimant is that provided under the “ Jones Act.” Were the decedent, Vincent D. Otis, an employee of a private employer rather than the State of New York, resort cou d be had to the Federal compensation set up pursuant to the Longshoremen’s and Harbor Workers Act. (March 4, 1927, chap. 509, § 3; 44 Stat. at Large, 1426; U. S. Code, tit. 33, § 903.) This act provides that longshoremen, carpenters and others who board vessels in the course of their employment and are accidentally injured while upon or in navigable waters are entitled to Federal compensation. The same workers when injured upon docks or other land borders of navigable streams in the course of their maritime work must look to State law for workmen’s compensation. This act, however, by its terms does not apply to employees of the United States or of any State or foreign government.
The Court of Claims is the proper forum for the action brought herein. The so-called “ saving clause ” hereinabove referred to originated with section 9 of the Judiciary Act of 1789 whereby the District Courts of the United States were given “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors in all cases, the right of a common law remedy where the common law is competent to give.” This grant was continued by sections 563 and 711 of the United States Revised Statutes and by sections 24 and 256 of the Judicial Code. (See U. S. Code, tit. 28, §§ 41, 371.) There have been numerous decisions construing this section. (See cases herein-above cited and also the following: Waring v. Clarke, 5 How. 441; The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 555; The Belfast, 7 id. 624; Leon v. Galocran, 11 id. 185; Steamboat Com-
The decedent was a seaman under the provisions of the Jones Act. While he was employed by the State as a member of a group whose exclusive duties were to board ships and assist in the removal of grain therefrom into the State elevator, fundamentally the work of all such men was to remove grain from the boats, whether they
One of the earliest declarations on the subject of longshoremen being classified as “ seamen ” under the Jones Act was that of International Stevedoring Co. v. Haverty (272 U. S. 50 [1926]). In that case the plaintiff, a longshoreman, was injured while stowing freight in the hold of a vessel and he sued his employer, the stevedoring company. The Supreme Court held that the plaintiff was engaged in a maritime service formerly rendered by the ship’s crew and came under the Jones Act, saying: “ For most purposes, as the word is commonly used, stevedores are not ‘seamen.’ But words are flexible. * * * We cannot believe that Congress willingly would have allowed the protection to men engaged upon the maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship. * * * In view of the broad field in which Congress has disapproved and changed the rule introduced into the common law within less than a century, we are of opinion that a wider scope should be given to the words of the act and that in this statute ‘ seamen ’ is to be taken to include stevedores employed * * * as the plaintiff was, whatever it might mean in laws of a different kind.”
In Atlantic Transport Co. v. Imbrovek (234 U. S. 52) Justice Hughes held, regarding a stevedore injured while loading a vessel, that he was a seaman, since upon the proper performance of his work depended the safe carrying of the cargo and the safety of the ship itself and that it was a service absolutely necessary to enable the ship to discharge its maritime duty. It was work formerly
The consequent confusion in the law has since been commented upon by the New York Court of Appeals, as, for example, in the case of Resigno v. Jarka Co., Inc. (248 N. Y. 225) where the court said (at p. 234): “ True, indeed, it is that the remedies available to a stevedore may thus vary from day to day, and even from hour to hour, with the location of his labor. Distinctions of that order are not unknown to the law. They have been made familiar by rulings under the Workmen’s Compensation Acts by which a longshoreman is given a remedy if working on a boat and denied the same remedy if working on a dock (State Industrial Commission v. Nordenholt Corp., 259 U. S. 263).” More recently, the United States Supreme Court, in the case of Employers’ Liability Assurance Corp., Ltd., v. Cook (281 U. S. 233, 236), said:
“ The record plainly discloses that while in the course of his employment and at work in the hold assisting in unloading a vessel afloat on navigable waters Cook received injuries out of which this suit arose. There is nothing in principle to differentiate this case from Northern Coal & Dock Co. v. Strand, 278 U. S. 142, and the judgment of the Circuit Court of Appeals must be reversed. See Nogueira v. New York, N. H. & H. R. R. Co., decided this day (281 U. S. 128).
“ The proceeding to recover under the State Compensation Act necessarily admitted that the decedent was employed by the insured when injured. Any right of recovery against the insurance carrier depends upon the liability of the assured. Whether Cook’s employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important. The unloading of a ship is not a matter of purely local concern as we have often pointed out. Under the circumstances disclosed the State lacked power to prescribe the rights and liabilities of the parties growing out of the accident.”
Under the decisions of the United States Supreme Court and of che courts of this State (supra), a stevedore whose employment puts him on boats afloat in navigable waters belongs properly in the class of “ seamen,” at least so far as the purpose and intent of the Jones Act are concerned.
The very recent decision of the Appellate Division, Third Department, made on March 5,1941, in the matter of the claim of Hawkins v. Rayner (261 App. Div. 1011) is distinguishable from the case at bar and is not applicable. In that case the deceased employee
The deceased, Vincent D. Otis, being a seaman within the meaning of the Jones Act at the time he sustained the injuries resulting in his death for which suit is now brought herein, and the accident alleged herein having occurred to the said decedent while engaged in his employment as a seaman on a boat in navigable waters, this action is not governed by the Workmen’s Compensation Law of the State of New York and the only remedy for the claimant is under the Jones Act and the claim is properly before the Court of Claims.
The motion is accordingly denied.