21 A.2d 634 | N.J. | 1941
This cause requires that we decide whether the Board of Review of the State Unemployment Compensation Commission properly concluded that Soren Hansen and Frans Fogelberg Swanson were eligible for benefit payments *89
pursuant to our state Unemployment Compensation Law. N.J.S.A.
Prosecutors contend that these claimants (employees) are members of a "crew" and that therefore the New Jersey statute fails to cover them because of the provisions therein that "The term `employment' shall not include * * * services performed as an officer or member of the crew of a vessel on the navigable waters of the United States." N.J.S.A.
Save as to difference in the amount of benefit payments, which each claimant was awarded, the facts are admittedly the same in each case and are not in dispute. As found by the Board of Review they are, in so far as are here pertinent, in substance, as follows:
The employers are engaged in the business of catching fish, from pound nets set in the Atlantic Ocean, within theterritorial limits of New Jersey, preparing such fish and shipping them to the market for sale. They maintain an establishment on the shore. In order to catch fish, groups of eight men each launch open boats, of less than ten tons burden, through the surf, which can be propelled either by motor or by oars; the boats are not motor driven when launched through the surf but are propelled by their occupants pulling on a line which is stretched from a pole set in the ocean floor outside the surf to a pole set in the beach; when the boat is thus hauled past the surf by all the occupants pulling on the rope, then the motor is used to propel the boat to the pound net. When the boat is motor driven, only two men, the steersman and operator of the motor, have any duties to perform. On reaching the pound, which may be a half mile to two miles off shore, the engine is stopped and the occupants of the boat haul in the net and secure the fish, repair any damage done to the net and re-set the net. On the way in the men sometimes engage in cleaning the boat or in cleaning or grading the *90 fish; after landing on shore they remove the fish from the boat and sometimes assist in cleaning and grading the fish. The boats are required to be registered with the federal government. The men do not sign articles as members of a crew; they may quit their jobs at their own pleasure; they are former seamen but are not required so to be. Knowledge of handling rope is the chief duty they have in common with seamen but it takes just as long to develop a seaman into a competent fisherman as it would to develop a landsman. The men work about ten hours a day; about one hour a day at the most is spent in hauling the boat through the surf, the greater portion of their time is consumed in hauling the boat from point to point at the pound and in handling the nets; less than half their time is spent on land. At the beginning of the season the men are assigned to groups and each group is assigned to a boat for the fishing season. They are not subject to the same discipline as seamen on a vessel at sea. They regard the man in charge of each group as a "boss" rather than a sea captain; they remain under his direction when working on land as well as on the water; while maneuvering the boat with ropes, each man has regularly assigned duties; the main purpose of his employment is to catch fish, all other duties are incidental thereto. The claimants in these causes, were engaged as pound fishermen. The employers had eight or more individuals in their employ in New Jersey during more than 20 weeks in 1936, 1937 and 1938.
1. Were the services of claimants performed as members "of the crew of a vessel on the navigable waters of the United States?"
The boats involved must be considered as vessels (Perry v.Haines,
In the instant case, claimants were on board for the purpose of catching fish. Whatever duties they performed in navigating the vessel were performed as a means to accomplish the primary end in view. Their position is clearly distinguishable from a cook's, a fireman's (15 C.J. 1454, note 46), or a wireless operator's (The Buena Ventura, 243 Fed. Rep. 797) whose duties are performed primarily with the end objective of aiding the progress of the vessel through the water, i.e., aiding in the navigation of the vessel, and not in accomplishing some result after the vessel has arrived at its destination.
In addition, claimants' contracts of hire were not entered into with the captain of the vessel; no articles were signed; nor were time cards kept by the captain; nor did claimants sleep aboard the vessels. In relation to the vessels on which claimants worked, their duties were more properly within the category of local fishermen and not members of a crew. Cf. Moore Dry DockCo. v. Pillsbury, 100 Fed. Rep. (2d) 245; Diomede v.Lowe, 87 Id. 296.
In South Chicago Coal and Dock Co. v. Bassett,
N.J.S.A.
Claimants here are employees who work entirely within the territorial limits of our state. They are, primarily, fishermen who, each day proceed to a spot no farther than two miles from the shore. They return, each day, to the very same spot on the shore whence they departed. They perform some of their duties on land. Their labors carry them to no foreign ports nor to any distant lands. They do not sleep aboard any ship. In accordance with the legislative declaration, the maintenance of their purchasing power is necessary for the general welfare of the state. Claimants are, plainly, amongst that very group of people whose "involuntary unemployment" our legislature has expressly declared to be a "subject of general interest and concern which requires appropriate action by the legislature." The purpose and context of our statute, therefore, make it clear that regardless of any definitions to the contrary, the word "crew" incorporated into the provisions excluding from the act "members of the crew of a vessel on the navigable waters of the United States" should here be interpreted in such a manner as not to include these particular claimants.
Prosecutors urge that because the federal government, by regulation, has interpreted these very words in the federal statute so as to include claimants as members of a crew and because Congress has amended the federal Social Security Act so that the act itself now expressly excludes fishermen from coverage, therefore, we should construe our act so as to include claimants as members of a crew and thus exclude them from coverage under our state act.
It is clear, however, that our courts are not bound by constructions which the federal administrative agencies have placed upon those federal statutes which are similar to our *93
own. Cf. Public Service Railway Co. v. Public UtilityCommissioners,
2. Is it a violation of the Federal Constitution (article 3, section 2) to allow these claimants to recover?
The general principles here applicable are more easily stated than applied. The admiralty clause of the Federal Constitution is interpreted, in substance, in the same manner as the commerce clause; and the application of both are here in question. Where the subject is national in its character, the United States Congress alone can act. The absence of any law of Congress when the subject is national in its character is equivalent to its declaration that that particular subject should not be regulated by the states. On the other hand, when the subject is a local one, the states may legislate so *94
long as their legislation is not inconsistent with the federal legislation. Cf. Southern P. Co. v. Jensen,
The determination of what is local in character and what is national in character is often a difficult task. Some of the decided cases, while sometimes irreconcilable, shed some light upon the problem. In the past, it has been held that a state statute may impose a lien upon a vessel in her own port for repairs (Rodd v. Heartt,
On the other hand, it has also been held that a state cannot authorize proceedings in rem as used in the admiralty courts (The Moses Taylor v. Hammons,
A study of the above cases indicates that if the subject-matter in question is strictly local in character and is not hostile nor materially prejudicial to the general maritime law, the single state concerned may regulate it without violating the admiralty and maritime jurisdiction of the federal government. WesternFuel Co. v. Garcia,
True, in the case of Southern P. Co. v. Jensen, supra, the court held that the New York Workmen's Compensation Act was unconstitutionally applied to a longshoreman killed while unloading a ship owned by a Kentucky corporation and engaged ininterstate commerce only. In the instant cases, however, as we have seen, claimants are confined to work which is performed entirely within the territorial limits of our state. They do not enter foreign lands nor the waters nor ports of sister states. Contrary to the situation in the Jensen case, the employers in the instant cases cannot object to state regulation on the ground that if New Jersey can subject them to such regulations "other states may do likewise." Here, the business is sufficiently localized to avoid the dangers and liabilities of multifarious taxation. Cf. Alaska Packers Association v. IndustrialAccident Commission,
Nor is such a finding inconsistent with our holding in March
v. Vulcan Iron Works,
The judgment below in each case is affirmed, and the writ in each case is accordingly dismissed, with costs. *97