Berton v. Tietjen & Lang Dry Dock Co.

• Decision Date: 13 January 1915
• Citation: 219 F. 763
• Parties: BERTON v. TIETJEN & LANG DRY DOCK CO.
• Court: U.S. District Court — District of New Jersey

219 F. 763

BERTON v. TIETJEN & LANG DRY DOCK CO.

United States District Court, D. New Jersey.

January 13, 1915

J. Emil Walscheid, of Town of Union, N.J., for plaintiff.

Foley &amp Martin, of New York City, for defendant.

RELLSTAB District Judge.

This suit was originally brought in the Hudson county court of common pleas, in the state of New Jersey, by John Berton, an employe of the defendant, Tietjen & Lang Dry Dock Company. His petition in that court was filed under the act of the New Jersey state Legislature approved April 4, 1911, entitled 'An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder' (N.J.P.L.

1911 p. 134), called the 'Workmen's Compensation Act.' Gregutis v. Waclark Wire Works (N.J.E. & A.) 92 A. 354. In such petition plaintiff alleged, inter alia that he was a resident of the state of New Jersey; that the defendant was a corporation of said state; that on the 27th of January, 1912, and for a long time prior thereto, he was in its employ, working as a machinist; that on such date, and while so in the defendant's employ, working upon a vessel then in the defendant's dry dock, situate at the foot of Seventeenth street, in the city of Hoboken, state of New Jersey, he fell from a scaffolding upon which he had been directed to stand while so working and received severe injuries; that in consequence thereof he was forced to cease working; and that he 'will be unable to follow his occupation of machinist or any other occupation for the next five years at least, and there is a strong probability that for the remainder of his life he will be unable to do any work of any kind whatsoever. ' The plaintiff further alleged that under the legislation referred to he was entitled to recover compensation from the defendant for such injuries, but that it disputed 'its liability to pay him such compensation and refuses to do so. ' He concluded with a prayer that an order be made directing the defendant to pay him the money to which he claimed he was entitled under such legislation.

The defendant removed the suit into this court upon the ground:

'That said suit is one arising under the laws of the United States, and is one of admiralty and maritime jurisdiction, in this, to wit, that the injury alleged to have been suffered by the said John Berton in his said petition was sustained by him on a floating dry dock, while said dry dock was floating in a navigable stream, to wit, the Hudson river. That said dry dock was not fastened to the shore, but was afloat on said river.'

Subsequently the defendant filed, in this court, its answer to the plaintiff's said petition, in which, after denying that the plaintiff was injured on the premises owned by it, it alleged that he, while in its employ, was 'on a certain floating dry dock then in the waters of the Hudson river, off the foot of Seventeenth street in the city of Hoboken.'

Upon the filing of such answer, the plaintiff presented his petition praying this court to remand said cause to the state court upon the ground that it was not one 'arising under the laws of the United States or a case of admiralty and maritime jurisdiction, and that the injuries sustained by him were not sustained while in a floating dry dock in a navigable river, but that the injuries were sustained by him in a floating dry dock which was a permanent part of the city of Hoboken and state of New Jersey.'

Thereupon the defendant presented its petition, alleging, in part, that it is a corporation of the state of New Jersey engaged in operating dry docks in the Hudson river at Hoboken, in the state of New Jersey, in the repairing of steamers and other maritime craft; that at the time the plaintiff alleged he was injured he was engaged in working on a steam tug which was on defendant's dry dock being repaired; that said dry dock was floating in the Hudson river, and not moored or made fast to the land in any way; that it is now moored to the land at Weehawken, N.J., and within the jurisdiction of the United States District Court for the District of New Jersey; that the injuries received by the plaintiff while engaged in working for it were caused without knowledge, fault, or negligence on its part, but entirely by the negligence and carelessness of the plaintiff; that defendant believed other suits might be brought against it or its said dry dock by other parties claiming to have suffered loss, etc.; that the defendant desired to claim the benefit of sections 4283, 4284, and 4285 of the Revised Statutes of the United States (Comp. St. 1913, Secs. 8021-8023); and prayed that Berton be restrained from prosecuting his said action except in this proceeding, and against said dry dock; and, in the event that this court should adjudge that the petitioner and such dry dock were liable for any injury to Berton, that such liability be limited to the amount of the value of its interest in said dry dock, her equipment, and pending freight.

To this the plaintiff answered, reasserting much that had been alleged by him in his said petitions, concluding with a prayer that defendant's 'petition and libel may be dismissed as not being within the jurisdiction of this court,' and, if that be denied, that defendant be required to pay him the compensation provided by said act of the state Legislature, and, if that be denied, that it be adjudged that the loss to Berton was incurred with the privity and knowledge of the owner of the dry dock and by its carelessness and negligence, that the prayer of the defendant to condemn the dry dock be denied, and that it be required to pay him the loss and damage suffered by reason of said injuries.

Of the testimony taken by the parties on the issues thus raised, only that relating to the jurisdiction will be considered, as it is clear that this suit must be remanded to the state court. This testimony shows that both plaintiff and defendant are citizens of the state of New Jersey; that the plaintiff, at the time of the alleged injury, and for some time prior thereto, was in the employ of the defendant, working as a machinist; that the defendant was the owner and operator of a floating dry dock, the frame of which is similar to a scow; that it was engaged in the repair of vessels which were floated upon such dock and by it raised clear of the water, the better to permit of the making of needed repairs; that such dock cannot be propelled by its own power, and, while capable of floating and being towed about on the surface of the water, was not built for the carrying of either passengers or freight; and that its movements, whether on the surface, or when being lowered or raised in the water, were for the purpose of raising vessels clear of the water, that they might be repaired; that at the time of the alleged injury the plaintiff was at work for the defendant as a machinist upon a vessel which had been floated upon the defendant's dry dock and then raised clear of the water for the purpose of being repaired; that the dry dock at that time was afloat, being held in position by her mooring post, a couple of feet away from the pier, by chocks so placed as to permit such dock not only to rise and fall with the tide, but to be moved laterally, and to be easily freed from her mooring log when desired.

By article 3, Sec. 2, of the United States Constitution, the judicial power of the United States Courts is extended 'to all cases of admiralty and maritime jurisdiction. ' The Constitution left it to Congress to say which of the United States courts should exercise such jurisdiction and to fix the scope thereof. In the exercise of such discretion Congress has frequently declared itself as to such jurisdiction, its latest expression being found in section 24 of the 'act to codify, revise, and amend the laws relating to the judiciary,' approved March 3, 1911 (36 Stat. L. 1087, c. 231 (Comp. St. 1913, Sec. 991 (3))), which took effect January 1, 1912. By this section the District Courts are declared to 'have original jurisdiction * * * 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 it. ' This is substantially the same as declared by Congress in the Judiciary Act Sept. 24, 1789 (1 Stat. L. 73, 76, c. 20), from which section 24 is mediately derived; the saving clause relating to the common-law remedy being exactly the same. If the plaintiff's right to recover depended upon the defendants being in fault, the court of admiralty might have taken jurisdiction, had its aid been invoked in the first instance, as the testimony establishes that the cause of the injury occurred wholly on navigable waters. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 Sup.Ct. 733, 58 L.Ed. 1208, 51 L.R.A. (N.S.) 1157, and cases cited therein. The plaintiff, however, selected another forum in which to bring his suit, so that, except admiralty have exclusive jurisdiction over such cause of action, the cause must be remanded unless such jurisdiction be saved by the defendant's invoking the limited liability provisions of the United States statutes.

The plaintiff's right to recover for such injuries, however as stated in his petition in the state court, or as fixed by that part of the state legislation invoked by him, does not rest upon the defendant's fault as the cause of such injuries. The effect of this statute is the incorporation into the relation of employer and employe a new right in the latter and a new obligation upon the former, and in furtherance thereof it provides...