Berry v. M. F. Donovan & Sons, Inc.

• Decision Date: 10 November 1921
• Citation: 115 A. 250
• Parties: BERRY v. M. F. DONOVAN & SONS, Inc., et al.
• Court: Maine Supreme Court

115 A. 250

BERRY

v. M. F. DONOVAN & SONS, Inc., et al.

Supreme Judicial Court of Maine.

Nov. 10, 1921.

On Appeal from Supreme Judicial Court, Cumberland County, at Law.

Proceedings under the Workmen's Compensation Act by Isaiah W. Berry, employee, to recover compensation for personal injuries opposed by M. F. Donovan & Sons, Inc., employer, and Travelers' Insurance Company, insurance carrier. Decree was entered on an award of the accident commission in favor of applicant, and the employer and insurance carrier appeal. Appeal dismissed, and decree affirmed.

Argued hefore CORNISH, C. J., and SPEAR, HANSON, DUNN, and DEASY, JJ.

Leon V. Walker and Verrill, Hale, Booth & Ives, all of Portland, for appellant Travelers' Ins. Co.

Harry E. Nixon, of Portland, for appellee.

DUNN, J. Mr. Justice Holmes, speaking for the court of which he is, in the case of The Blackheath, 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236, uses language worthy a sort of copyright. He says that—

"The precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history."

The power of the Congress to legislate respecting maritime contracts is paramount. This prerogative finds origin in that provision of the federal Constitution enabling the making of all laws necessary and proper for carrying into execution the powers vested by the supreme organic law in the government of the United States or its departments or officers. U. S. Const. art. 1, § 8. Among these powers are those of all cases of admiralty and maritime jurisdiction (Id. art. 3, § 2), and the regulation of commerce with foreign nations and among the several States, with uniformity (Id. art. 1, §§ 8, 9). Exercising such control, the first Congress conferred upon the district courts of the United States "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." Judiciary Act Sept 24, 1789, c. 20, § 9, 1 U. S. Stat. 73-77. The saving clause has been retained through all revisions of the statute down to the present time. 36 U. S. Stat. c. 231; Comp. Stat. 1916, §§ 968, 991. Before passing on, it may be well to remark, by way of reminder, that the Congress in its exception did not save to suitors a remedy in the common-law courts, but saved to them a common-law remedy. The Moses Taylor, 4 Wall. 411, 431, 18 L. Ed. 397. The distinction is the difference between an action and a remedy; a remedy does not necessarily imply an action. Knapp & Co. v. McCaffrey, 177 U. S. 638, 20 Sup. Ct. 824, 44 L. Ed. 921. A remedy upon the authority of Bouvier, is the means employed to enforce a right or to redress an injury. Remedies are usually by action, but by no means necessarily so. Knapp v. McCaffrey, supra.

The state of Maine, repeating and amending an earlier law (Laws of 1915, c. 295), has enacted a workmen's compensation act. Laws of 1919, c. 238. The statute defines the word "employee" as inclusive of every person in the service of another, other than casually, under any contract of employment whatsoever, excepting persons engaging in farm labor, as domestic servants, as masters of or seamen on vessels in interstate or foreign commerce, and officials of the state and its subdivisions, with exceptions, not material to be particularly stated here, regarding certain public officers and employees. The definition of "employer" is correspondingly comprehensive concerning those customarily employing five or more persons in the same business. The act is optional or elective. Acceptance of its provisions creates a contractual relationship between employer and employee. Mathias Gauthier's Case, 120 Me. 73, 113 Atl. 28; Mailman's Case, 118 Me. 175, 106 Atl. 606. Mutual acceptance Dy employer and employee of the provisions of the act adds a contract to the underlying contract of employment; the superadded contract having to do with the subject of the employer's responsibility for disabling or fatal personal injuries to the employee, should such befall the latter in the course of his employment. Express assent, and a compliance on his part with stated preliminary requirements, to the approval of the commission erected to administer the act, will bring an employer within the circle of the law. Nonaction, that is to say, a failure to give notice of a desire to be left outside, impliedly places the employee of an assenting employer there. If an employer, other than one employing domestic servants, or engaging in agriculture or logging, elect to remain without the act, and he be named defendant in tort for personal injuries sustained by his employee, or from death resulting therefrom, the doctrines of assumption of risk and fellow service and the defense of contributory negligence will be denied him. A liability is imposed on every assenting employer, to the exclusion of common-law liability, and as well of liability under any statute other than the present one, to make or provide a compensation for injuries to his employee, regardless of fault as a factor or cause, excepting where injury or death is brought about by the willful intention of the employee or his fellow, or results from the employee's intoxication while on duty; the employer's knowledge of the intoxication or of its likelihood affording defensive proposition. Self-insuring by the employer, on satisfactory proof of his pecuniary ability to pay the compensation and benefits provided for, and a deposit by him of security therefor, is permitted. Or, instead, he may furnish the insurance of an approved underwriter. The extent of liability is determined by the commission, or the chairman of the commission, as the particular case may come within the law. Findings of fact are final. A decision has the status of a judgment, and is enforceable by process of the Supreme Judicial Court Laws of 1919, c. 238, § 35. In addition to immediate medical or like treatment, compensation is to be granted, dating 10 days from the accident, upon a graduated scale based upon loss of earning power, having regard to the previous wage and the nature and duration of the disability. Death benefits are measurable according to the dependency of designated surviving dependents.

In this situation of legal affairs, a vessel lay tied to a Portland wharf, in waters available to interstate commerce. Her freight was railroad ties. M. P. Donovan & Sons, Inc., a local stevedoring corporation, having contracted with the ship to discharge the cargo, hired the plaintiff, a longshoreman, to assist in the unloading. In performing his duties, the plaintiff stood on a platform on the wharf. To this platform a sling, operated by a traveling derrick on the vessel, brought successive loads of the ties, from whence the ties were placed on a truck to be wheeled to another part of the wharf. On one of its journeys, the sling struck the plaintiff; it knocked him from the platform to the wharf, and thereby incapacitated him temporarily for work. Donovan & Sons, Inc., was an assenting employer under the Workmen's Act; its employee, deeming himself to be within that act, made application for the allowance of compensation. His application was granted. A justice of this court entered statutory directed decree upon the award of the commission. Laws 1919, c. 238, § 34. Hight v. Manufacturing Co., 116 Me. 81, 100 Atl. 9, L. R. A. 1917E, 277. Appeal brings the case here. Laws of 1919, c. 238, § 34. Both the stevedoring corporation and its insurance carrier strenuously contend that, in so far as it was sought to be applied to the facts of this case, the Workmen's Compensation Act contravenes the Constitution and the laws of the United States. No other question is raised.

Admiralty and maritime jurisdiction, as these terms are used in this country, extend not only to all things done upon and relating to the sea, to transactions relating to commerce and navigation, to damages and injuries upon the sea, and all maritime contracts, torts, and injuries (De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776), but still beyond the high seas to waters navigable therefrom (The Genesee Chief, 12 How. 443, 13 L. Ed. 1058; The Hine v. Trevor, 4 Wall. 563, 18 L. Ed. 451; The Eagle, 8 Wall. 15, 19 L. Ed. 365).

It seems almost superfluous to say that a state may neither broaden nor narrow the limits of maritime law and admiralty jurisdiction. The J. E. Bumbell, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345; Steamboat Orleans v. Phœbus, 11 Pet. 175, 9 L. Ed. 677; Butler v. Boston & Savannah Steamboat Co., 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017. State laws cannot exclude a maritime contract from the domain of admiralty jurisdiction; they cannot alter the limits of that jurisdiction. A state can only authorize the enforcement of rights by common-law remedies, "or such remedies as are equivalent thereto." The Lottawanna, 21 Wall. 558, 580, 22 L. Ed. 654. Under the Judiciary Act it is open to a suitor to proceed in rem in the admiralty or in personam in the same jurisdiction, or, at his election, in the stead of going into admiralty, he may resort to his common-law remedy either in the federal or in the state courts. Hine v. Trevor, supra; The Belfast, 7 Wall. 624, 19 L. Ed. 266; Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028; Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. Ed. 95; Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159. Of course, he may not for the one thing properly prevail in both jurisdictions. But personal suits on maritime contracts or for maritime torts are maintainable in state courts. If, as a general proposition, no remedy is sought against the vessel itself, the case is not within the exclusive jurisdiction of the federal courts, but the state courts, administering common-law remedies, have concurrent jurisdiction. 1 Cyc. 811; 1 C. J. 1253, § 24. A suit in personam by a sailor for his...