202 A.D. 613, Lynott v. Great Lakes Transit Corp.

Citation:202 A.D. 613
Party Name:CATHERINE LYNOTT, as Administratrix, etc., of PETER LYNOTT, Deceased, Respondent, v. GREAT LAKES TRANSIT CORPORATION, Appellant.
Case Date:June 30, 1922
Court:New York Supreme Court Appelate Division, Fourth Department

Page 613

202 A.D. 613

CATHERINE LYNOTT, as Administratrix, etc., of PETER LYNOTT, Deceased, Respondent,

v.

GREAT LAKES TRANSIT CORPORATION, Appellant.

Supreme Court of New York, Fourth Department.

June 30, 1922

Page 614

APPEAL by the defendant, Great Lakes Transit Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 14th day of March, 1922, upon the verdict of a jury for $7,308; also from an order entered in said clerk's office on the same day denying defendant's motion for a new trial made upon the minutes, and also from an order made at the Erie Special Term and entered in said clerk's office on the 23d day of March, 1922, denying defendant's motion to correct the judgment nunc pro tunc by striking out the amount of the interest from the date of decedent's death to the date of the verdict.

COUNSEL

Fred W. Ely, for the appellant.

Hamilton Ward [Dana L. Spring of counsel], for the respondent.

SEARS, J.:

The plaintiff's intestate at the time of his death was in the employ of the defendant as a coal passer on the steamer Octorara, a vessel of the defendant plying the waters of the Great Lakes. The accident took place while the vessel was moored to a dock in the Buffalo harbor. The deceased had been employed on this vessel as a coal passer for about a month previous to the accident. His duties were to wheel coal and shovel ashes in the hold of the vessel, and in legal terminology he ranked as a seaman. He first entered the employ of the defendant on this vessel at Detroit, on July 21, 1921, and upon the vessel reaching Buffalo the next day immediately re-signed for a trip from Buffalo to Duluth and back. This operation was twice afterwards repeated, and when the vessel arrived in Buffalo on August 18, 1921, at the end of the last of these trips,

Page 615

he was, as usual, paid off and re-signed for another trip, and his death occurred less than twelve hours later, before the vessel had left the dock.

During all the time that the deceased was employed on the Octorara there had been furnished for the use of the crew in getting off from and onto the vessel, a narrow plank made of pine or oak, twenty feet in length, fifteen or eighteen inches in breadth with side pieces rising an inch or two above the surface of the board and nailed on each side. When the vessel was tied up to the dock this gangplank was put out through the fantail gangway near the stern of the ship and rested one end on the dock and the other end in a hallway just inside the gangway. As the vessel lay at the Buffalo dock at the time of the accident, the end which was on the dock projected about two feet beyond the edge of the dock, and the space, from the edge of the dock to the side of the vessel where the gangway was, was from four to six feet. The slope of this plank from the dock downward toward the vessel was estimated by different witnesses as from thirty to forty-five degrees. As it passed into the gangway there was a clearance of from three and a half to four feet from the top of the board to the top of the opening, and in passing in and out a person using the gangplank would have to bend over in passing through the gangway. There were no cross-cleats upon this gangplank, no matting upon it, and no handrail or sides except the pieces along the sides already mentioned. This plank was of a kind which was sometimes used for moving flour from one part to another of a vessel, and is sometimes called a flour-skid, but it appears not to have been used for that purpose on this vessel. When the vessel was not at the dock the gangplank lay in the hallway just within the gangway, and upon this hallway opened the door of the quarters furnished to the deceased for sleeping. The deceased, having left the vessel over this gangplank earlier in the day, returned about ten o'clock in the evening. There was sufficient light to allow everyone to see the surroundings. The deceased started down the gangplank and after taking two or possibly three steps on the plank, slipped, his feet going forward, and fell over sideways and down into the water. So his accident is described by the only eye-witness who was sworn. Death resulted from drowning.

The complaint is in the usual form under our State practice where damages are sought for death negligently caused. The answer, besides traversing the negligence, sets up contributory negligence and assumption of risk as separate defenses. The defendant now contends:

First. That this action was not within the jurisdiction of the

Page 616

court because of the provisions of section 33 of the United States Merchant Marine Act of 1920 (41 U.S. Stat. at Large, 1007), passed and effective June 5, 1920 (Jones Act), amending section 20 of the Seamen's Act of March 4, 1915 (38 id. 1185), known as the La Follette Act, and

Second. That in any event the deceased assumed the risks which resulted in his death, and, therefore, the plaintiff cannot recover.

The cause of action, if any exists, is concededly based on a maritime tort.

The power of Congress to legislate on maritime matters exists by virtue of article 3, section 2, of the Constitution of the United States, taken in connection with article 1, section 8, subdivision 18. In Southern Pacific Co. v. Jensen (244 U.S. 205) the Supreme Court of the United States, referring to these clauses of the Federal Constitution, said: '* * * It must now be accepted as settled doctrine that in consequence of these provisions Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.'

And again in Knickerbocker Ice Co. v. Stewart (253 U.S. 149) the Federal Supreme Court said: 'In Southern Pacific Co. v. Jensen, 244 U.S. 205, we declared that under § 2, Article III of the Constitution ('the judicial power shall extend to * * * all cases of admiralty and maritime jurisdiction'), and § 8, Article I (Congress may make necessary and proper laws for carrying out granted powers), 'in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to the matters within admiralty and maritime jurisdiction; ' also that 'Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country."

Previous to the enactment of section 33 of the Merchant Marine Act of 1920, a seaman injured upon his vessel (first) could maintain an action for his maintenance, cure and wages in the absence of fault on the part of the owner, the master, or any member of the crew, or (second) if his injury was due to the unseaworthiness of the vessel or its appliances, he could maintain an action for indemnity. (The Osceola, 189 U.S. 158.)

This latter remedy could be obtained either by a proceeding in rem in admiralty or by an action in personam in the State courts (or in case of diversity of citizenship in the Federal courts).

The right to maintain...

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