Colonna Shipyard Inc v. Dunn

• Citation: 145 S.E. 342
• Parties: COLONNA SHIPYARD, Inc. v. DUNN.
• Decision Date: 30 October 1928
• Court: Supreme Court of Virginia

145 S.E. 342

COLONNA SHIPYARD, Inc.

v.DUNN.

Special Court of Appeals of Virginia.

Oct. 30, 1928.

[COPYRIGHT MATERIAL OMITTED]

Christian, J., dissenting.

Error to Circuit Court of City of Norfolk.

Suit by J. F. Dunn against the Colonna Shipyard, Incorporated. Judgment for plaintiff, and defendant brings error. Affirmed.

Sinnott, May & Leaman, of Richmond, for plaintiff in error.

B. A. Banks and Kelsey & Jett, all of Norfolk, for defendant in error.

CHINN, J. This suit was brought by J. F. Dunn (hereinafter referred to as plaintiff) against Colonna Shipyard, Incorporated (hereinafter referred to as defendant) to recover damages for personal injuries suffered by the plaintiff on the night of September 7, 1920, while employed by the defendant in the work of installing new boiler tubes in the Italian steamship Ludovica, which had been brought to defendant's shipyard for repairs, and was at the time lying afloat at the defendant's dock at Norfolk, Va.

Plaintiff was an acetylene welder, and had been working during the early part of the night in using an acetylene torch to cut the old tubes out of the boilers in preparation for the installation of the new tubes. At the time he received the injuries complained of, he had completed his torch work and was assisting the boiler makers, all of whom were employed by the defendant, in installing the new tubes. Shortly before 12 o'clock midnight, plaintiff climbed on the staging which had been erected some 4 feet above the floor of the boiler room and in front of the starboard boiler boxes, for the purpose of inserting three tubes in the last boiler to be repaired. After pinning two of the tubes, in carrying on his work, plaintiff reached for one of the portable extension lights, furnished by the defendant for the use of its workmen, which was hanging over his head on the door of the boiler box where he was working. It being necessary to have illumination in the boiler room of the steamship to enable the men to do their work, it was furnished by the defendant by means of electricity through portable extension cords about 50 feet in length attached to a main extension which led from the steamship to an electric terminal on the dock of the defendant; a socket being attached to the free end of the cord in the boiler room in which to insert the light bulb. On the night of the accident, the generator set in the shipyard was not being operated, and the electricity for the extensions was supplied by the defendant in the form of what is known as a. c. current, taken from the city's lighting system. When the plaintiff grasped the extension cord with his right hand just below the socket containing the bulb, the light went out, and he was suddenly drawn into a cramped and contracted position and caused to fall backward upon his head to the steel floor of the boiler room, his hand still gripping the cord, thereby sustaining serious and permanent injuries.

The trial of the case resulted in a verdict and judgment for the plaintiff in the sum of $35,000, and, the defendant having obtained a writ of error, it is now before this court for review.

It is first contended by the defendant that the trial court was without jurisdiction because the case is governed by the Virginia Workmen's Compensation Act (Acts 1918, c. 400), which bestows upon the State Industrial Commission exclusive authority to award compensation in all cases coming within the purview of that act. The position is not tenable. While it is true that the facts disclosed by the record are such as would bring the injury complained of within the scope of the act referred to if the case was governed by the state law, it has been definitely settled by the decisions of the Supreme Court of the United States that, when an employee suffers injury from maritime tort, which is within the jurisdiction of admiralty, theworkmen's compensation statutes of the several states have no application. This doctrine was in effect recognized in the recent Virginia case of Colonna Shipyard, Inc., v. Bland, 143 S. E. 729, where Judge Prentis reviews the decisions, and it is held that an injury suffered by a mechanic through the negligence of his master, while repairing a ship at a dock in navigable water of the United States, is a maritime tort and cognizable in admiralty, that an action for such injury may be sustained in the state court, and that the recovery and relief to be afforded for such injury are to be determined by the rules of admiralty, and not by the common law.

The holding in the above case may well be considered conclusive authority on the subject under consideration, but, as it is not claimed in that case, as in this, that the facts bring it within the operation of the Workmen's Compensation Law of this state, brief reference to the decisions in which that question was directly involved and discussed seems appropriate. For that purpose it is sufficient to refer to the leading case of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 19180, 451, Ann. Cas. 1917E, 900, in which it was held that state legislation modifying, changing, or affecting the general maritime law of the United States, or which works material prejudice to the characteristic features of the general maritime law, or which Interferes with the proper harmony or uniformity of that law in its international and interstate relations, is invalid as being repugnant to article 3, § 2, of the Federal Constitution. As pointed out by Mr. Justice Mc-Reynolds in speaking for the court in that case:

"Article 3, § 2, of the Constitution, extends the judicial power of the United States 'To all cases of admiralty and maritime jurisdiction;' and article 1, § 8, confers upon the Congress power 'To make all laws which may be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.' Considering our former opinions, 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. * * * By section 9, Judiciary Act of 1789, 1 Stat. 76, 77, the District Courts of the United States were 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.' And this grant has been continued. Judicial Code, §§ 24 and 256 (36 Stat, at Large 1091, 1160, chap. 231; Comp. Stat. 1916, sections 991 (l[3]), 1233 [28 USCA §§ 41(3), 371])."

Accordingly it was held that the Workmen's Compensation Act of the state of New York (Consol. Laws, c. 67), which, in lieu of the common-law liability enforceable by suit in cases of negligence, imposes a liability upon the employer for maritime injuries or death by accident suffered by an employee on navigable waters while engaged in a maritime contract of employment, infringes upon the admiralty jurisdiction of the United States, and is therefore invalid to that extent, the court saying:

"If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other States may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish. * * *

"Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the Federal District Courts, 'saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.' The remedy which the Compensation Statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction."

The doctrine established by the Supreme Court of the United States in Southern Pacific Co. v. Jensen has been steadfastly adhered to by that tribunal in all its subsequent decisions, and as the ultimate and controlling authority on the subject has also been followed by all other courts, both state and federal. The effect of this doctrine is, as carried into the decisions, that the workmen's compensation statutes of the several states are, under the Federal Constitution, invalid and ineffectual to the extent that they undertake to prescribe the rights, remedies, and liabilities, as between employer and employee, when the employee receives a maritime injury or suffers death through a maritime casualty, while engaged in a maritime employment or the performance of a maritime contract And it has been uniformly held that, when an injury is suffered by an employee on navigable waters or on a completed vessel while engaged in an employment directly affecting navigation or commerce, the injury and employment are maritime and within the exclusive jurisdiction of admiralty. Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Washington v. Dawson & Co., 264 U. S. 219, 44 S. Ct 302. 68 L. Ed. 646; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L Ed. 1208, 51 L. R. A. (N. S.) 1157; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756, Gonsalves v. Morse Dry Dock Co., 266 U. S. 171, 45 S. Ct. 39, 69 L. Ed. 228; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 45 S. Ct. 157, 69 L. Ed. 372; Messel v. Foundation Co., 274 U. S. 427, 47 S. Ct. 695, 71 L. Ed. 1135.

That the injuries received by the plaintiff in the instant case was maritime, both with respect to the locality of the alleged tort and the direct relation of his employment to navigation and commerce, and the case therefore falls within the exclusive jurisdiction of admiralty under the provisions of ...