237 N.Y. 250, Maleeny v. Standard Shipbuilding Corporation

Citation:237 N.Y. 250
Case Date:December 27, 1923
Court:New York Court of Appeals

Page 250

237 N.Y. 250

PETER MALEENY, Respondent,



New York Court of Appeal

December 27, 1923

Argued November 23, 1923.

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E. C. Sherwood and Clarence S. Zipp for appellant. Since the accident occurred on board a ship lying in navigable waters and the plaintiff's employment was of a maritime nature, it was beyond the power of the legislature of the state of New York to impose on the defendant in connection with a maritime operation the onerous burden and stringent liability provided for by the New York Labor Law. (Wilkes v. U. M. C. Corp., 199 A.D. 788; Dahl v. Robins D. D. & R. Co., 203 A.D. 792; Southern Pacific Co. v. Jensen, 244 U.S. 205; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372; The Osceola, 189 U.S. 158; Roebling's Sons Co. of New York v. Erickson, 261 F. 986; The Pochasset, 281 F. 874; The City of Alexandria, 17 F. 390; State Industrial Comm. v. Nordenholt Corp., 259 U.S. 263; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149.) The trial court erred in instructing the jury upon the question of the effect upon the case of contributory negligence on the part of the plaintiff. (Carter v. Brown, 212 F. 393; The Tourist, 265 F. 700; The General De Sonis, 179 F. 123; Morgan Lumber Co. v. West Kentucky Coal Co., 181 F. 271; The Watson, 128 F. 201; Atlee v. Packet Co., 21 Wall. 389; N.Y. H. Towboat Co. v. N.Y. L. E. & W. R. R. Co., 148 N.Y. 574; Kennedy v. Cunard S. S. Co., 235 N.Y. 604.)

Ralph G. Barclay, Jay S. Jones and Edward J. Fanning for respondent. Section 240 of the Labor Law (L. 1921, ch. 50),

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relating to the safety of scaffolds furnished by the master to the servant, applies to this action. (Wilkes v. United Marine Contracting Co., 199 A.D. 788; Martin v. Herzog, 228 N.Y. 164.)The trial court did not err in instructing the jury upon the question of the effect of any contributory negligence of the plaintiff. (Hughes on Admiralty [2d ed.], § 716; The Tax Morris, 137 U.S. 1; Port of N.Y. S. Corp. v. Castagna, 280 F. 618; The Lackawanna, 151 F. 499; Johnson Co. v. Johanson, 86 F. 886; Carter v. Brown, 212 F. 393; Kennedy v. Cunard S. S. Co., 197 A.D. 459; Chelentis v. L. S. S. Co., 247 U.S. 372; Belden v. Chase, 150 U.S. 674; New York Harbor Towboat Co. v. N.Y. L. E. & W. R. R. Co., 148 N.Y. 574.)


The Standard Shipbuilding Corporation, the defendant in this case, is a domestic corporation doing business in Richmond county, city and state of New York. The plaintiff was in the employ of the defendant working as a sheet iron helper. On the 6th day of October, 1921, he with other laborers was engaged in making certain repairs upon the ship Buckeye State, lying at the shipyards of the defendant at Rosebank, Staten Island. The particular work that he was engaged in doing was the repair of a metal ventilating shaft which was erected over the engine room in the hold of the ship and extended to the deck. The ventilator had been removed and was being replaced at the time of the accident. A scaffold had been erected by a crew of riggers in defendant's employ upon which the plaintiff was obliged to work. A plank of this scaffold broke and the plaintiff fell about twenty feet to the engine room below sustaining injuries for which he brought this action.

The court, in charging the jury, referred to the New York State Labor Law (Laws of 1921, chapter 50 [Cons. Laws, chap. 31]), which provides:

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'Sec. 240. Safe scaffolding required for use of employees.

'1. A person employing or directing another to perform labor of any kind in the erection, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other mechanical contrivances which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.'

Regarding this law the judge in his charge said:

'I said a moment ago something about the failure to observe a duty being negligence. There is a law in our state known as the Labor Law. Under section 18 of that law you will have to consider whether the defendant has observed the duty which that law casts upon it. Section 18 of the Labor Law prohibits an employer from furnishing to his employees a scaffold unsafe, unsuitable or improper and which is not so constructed as to give proper protection to the life and limb of the person employed to work thereon. Under this section there is a positive prohibition laid upon the master without exception on account of his negligence or the carelessness of his servants.

'If you find that the statute has been violated, and that the violation caused the accident, you may consider the statute with all the other facts proved in determining whether the defendant was guilty of negligence.'

The charge was perhaps more favorable to the defendant than it was entitled to under the decisions of this court. We have held that there was an absolute duty under this Labor Law to furnish a safe scaffold, and that the master was liable as for negligence if the scaffold proved to be unsafe and the servant were injured. The principal modification of the common law is that the master is made liable even if the scaffold be defectively

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constructed through the negligence of fellow-servants, he, the master, having furnished proper material. (Stewart v. Ferguson, 164 N.Y. 553; Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415.)

The defendant, of course, does not complain upon appeal that this charge was more favorable to it than it should have been. It claims, however, that the Labor Law can have no application to the case whatever as the tort is a maritime tort, governed by the admiralty law. By section 9 of the Judiciary Act of 1789, which has been continued by the Judicial Code, sections 24 and 256, the District Courts are 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 it.'

For an accident such as happened to the plaintiff in this case he could bring his action in admiralty or in the courts of this state.

It is the common-law duty of a master to furnish his servant with a proper place to work and reasonably safe appliances; for his neglect of this duty he is liable for the resultant injury. (Crispin v. Babbitt, 81 N.Y. 516; Pantzar v. Tilly Foster Iron Mining Co., 99 N.Y. 368.) This is also the law in admiralty, as applicable to those other than seamen. (Atlantic Transport Co. v. Imbrovek, 234 U.S. 52.)

Whether there be an admiralty law of master and servant separate and distinct from the common law, as it is known and applied by the states, need not be discussed, as it is neither important nor pertinent.

The fact is that admiralty does apply the common law of master and servant as it has been expounded by the common-law courts.

In Leathers v. Blessing (105 U.S. 626, 630) it was said: 'Nor is the term 'tort, ' when used in reference to admiralty jurisdiction, confined to wrongs or injuries

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committed by direct force, but it includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case.'

And Justice HOLMES in Knickerbocker Ice Co. v. Stewart (253 U.S. 149, 167) says: 'But somehow or other the ordinary common-law rules of liability as between master and servant have come to be applied to a considerable extent in the admiralty. If my explanation, that the source is the common law of the several states, is not accepted, I can only say, I do not know how, unless by the fiat of the judges.'

As I read the cases I find no disagreement with this statement of Justice HOLMES, that the common law of the states has become the law of admiralty as it relates to master and servant. The only disagreement which I find is in determining what that common law is, or else in its application to situations strictly maritime. (Workman v. N.Y. City, Mayor, etc., 179 U.S. 552; Baltimore & Ohio Railroad Co. v. Baugh, 149 U.S. 368; Detroit v. Osborne, 135 U.S. 492.)

We start, therefore, in our discussion with the concession that for the failure of the master to provide the servant with a reasonably safe place to work and with proper appliances, an action may be brought either in the state courts or in the United States District Courts. The law to be applied in either tribunal will be the common law; in admiralty it may be called the maritime law.

The question arises whether or not this common-law rule of masters' liability can in any way be modified by state statutes. Can a state statute, for instance, create a presumption of negligence from the happening of an accident, which I take it, would be simply modifying the rules of evidence, or shifting the burden of proof? Can it go a step further, as it evidently has done in our Labor Law, and say that employers do not fulfill their complete

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duty to their servants by simply furnishing them with sufficient material to build a scaffold, but that they must see to it that the scaffold when built is safe. Broadly speaking, this wipes out the fellow-servant rule as to such a construction. Are these modifications proper and enforcible in the state courts when the accident is a maritime tort? We must remember, in this discussion, that we are dealing with a domestic corporation, and with a servant working for that corporation in the state of New York.

That the right of a common-law remedy which has been saved to suitors is not limited to either the substantive or remedial law, as it was in 1789, has heretofore been decided. Referring to the case of Steamboat Company v. Chase (16 Wall. 522) Mr. Justice BROWN in ...

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