258 Mass. 470 | Mass. | 1927
The injury arose out of and in the course of the employment while the employee was at work “as a stationary engineer on a dredge of the subscriber which was engaged in digging into the land side of the harbor to enlarge the capacity of a dock in Boston Harbor.” The employee was required by G. L. c. 146, § 49, to have a license as a stationary engineer from this Commonwealth, but was not required by the laws of the United States to have a marine engineer’s license. The evidence shows that the dredge was without motive power and could not move itself. It had been towed to its place, was afloat, and was either anchored or secured to the wharf by a line while the dock was being dredged. The employee was engaged on the engine by which the steam shovel for digging out the dock was operated. The employer had voluntarily accepted the provisions of the workmen’s compensation act by insuring under it and becoming a subscriber. It has been found that “there is full insurance coverage under the provisions of the statute.” The employee has given no notice to retain his common law rights. The employer and employee have both elected, so far as permissible under the law as to exclusive admiralty jurisdiction, to be bound by the workmen’s compensation act. G.. L. c. 152, §§ 1, 21, 22, 24, 26. That act is not compulsory but elective, both with respect to employers and employees. Young v. Duncan, 218 Mass. 346, 349.
The single question for decision is whether in these circumstances the case comes within the workmen’s compensation act, or whether it is exclusively within admiralty jurisdiction. The principles by which this court must be guided were stated in Gillard’s Case, 244 Mass. 47, 51, 52, in these words: “The words of the workmen’s compensation act, now G. L. c. 152, formerly St. 1911, c. 751, are broad enough in their scope to include maritime torts except and so far as jurisdiction of the General Court of Massachusetts in that
The only inquiry in these circumstances is whether under the controlling decisions of the Supreme Court of the United States the workmen’s compensation act may govern, or whether it is excluded because of the supremacy and exclusiveness of admiralty jurisdiction. The most recent pronouncement of that court pertinent to these facts is Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59. In that case one employed as a diver was injured while he had ‘ ‘ submerged himself from a floating barge anchored in the navigable Sabine River thirty-five feet from the bank, for the purpose of sawing off the timbers of an abandoned set of ways, once used for launching ships, which had become an obstruction to navigation.” It was said: “This subject was much considered in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 477 — here on certificate — which arose out of injuries suffered by a carpenter while at work upon an uncompleted vessel lying in navigable waters within the State of Oregon. The words of the local statute applied to the employment and prescribed an exclusive remedy. We said the cause was controlled by the principle that, as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter may be modified or supplemented by state statutes. And we held that under the circumstances disclosed ‘regulation of the rights, obligations and consequent liabilities of the parties, as between themselves, by a local rule would not necessarily work material prejudice to any characteristic feature of the general
We are unable to distinguish that decision from the case at bar. Following that decision and in accordance with the principles already declared in the Gillard case and the O’Hara case, we are of opinion that the workmen’s compensation act governs the case at bar. It is distinguishable from Gonsalves v. Morse Dry Dock & Repair Co. 266 U. S. 171, and Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449.
Decree affirmed.