Danielsen v. Morse Dry Dock & Repair Co.

• Decision Date: 17 April 1923
• Court: New York Court of Appeals Court of Appeals
• Parties: DANIELSEN v. MORSE DRY DOCK & REPAIR CO.

235 N.Y. 439

139 N.E. 567

DANIELSEN

v.MORSE DRY DOCK & REPAIR CO. ^*

Court of Appeals of New York.

April 17, 1923.

Action by John Danielsen, an infant, against the Morse Dry Dock & Repair Company. From a judgment of the Appellate Division (202 App. Div. 812,195 N. Y. Supp. 91), unanimously affirming a judgment of the Trial Term (116 Misc. Rep. 69,189 N. Y. Supp. 410), entered on a verdict for plaintiff, defendant by permission appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Chas. J. McDermott, of New York City, for appellant.

Harold R. Medina, Jacquin Frank, and David M. Fink, all of New York City, for respondent.

CARDOZO, J.

On November 18, 1920, the vessel Norman Bridge was undergoing repairs in the defendant's dry dock, afloat in navigable waters. The plaintiff, who was employed by the defendant as a burner, was sent aboard the vessel to burn the bolts and metal plates. While so engaged, he suffered injuries, which have been found by the jury to be due to the defendant's negligence.

[1] The unanimous affirmance at the Appellate Division requires us to presume that the evidence sustains the verdict. Const. art. 6, § 9; Civil Practice Act, § 589, subd. 3. The plaintiff asserts that the tort is within the jurisdiction of the admiralty, and that the common-law remedy, reserved to him by Congress (Judicial Code, §§ 24, 256 [U. S. Comp. St. §§ 991, 1233]), is unimpaired by local statutes. The defendant asserts that the nature of the employment and the locus of the wrong are such that the Workmen's Compensation Law may be applied without impairing the uniformity of the maritime law, and hence that the remedy under the statute must be held to be exclusive.

[2][3][4][5] The jurisdiction of admiralty over contracts is governed by the nature of the transaction. The jurisdiction of admiralty over torts is governed by locality. Grant-Smith-Porter Co. v. Rohde, 257 U. S. 469, 476, 42 Sup. Ct. 157, 66 L. Ed. 321;State Industrial Comm. of State of New York v. Nordenholt, 259 U. S. 263, 42 Sup. Ct. 473, 66 L. Ed. 933. This action being in tort, the plaintiff brings his case within the maritime law, if he satisfies one of the two tests of jurisdiction, the test of locality. He goes farther, however, and satisfies them both. A contract for the repair of a ship, as distinguished from one for its construction, is a maritime contract. The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73; Thames Towboat Co. v. The Schooner Francis McDonald, 254 U. S. 242, 41 Sup. Ct. 65, 65 L. Ed. 245. A vessel in a dry dock, which is afloat in navigable waters, is itself in those waters as truly as if moored to a wharf or beside a pier. The Jefferson, 215 U. S. 130, 142, 143, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907; The Robert W. Parsons, 191 U. S. 17, 33, 24 Sup. Ct. 8, 48 L. Ed. 73; The Anglo-Patagonian, 235 Fed. 92, 148 C. C. A. 586. There is a concurrence of the two elements of maritime jurisdiction. A workmen's compensation statute, not founded upon consent, but acting in invitum, will not displace the rights and remedies established by the law of the sea. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900;Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State Industrial Commission of State of New York v. Nordenholt, supra; Matter of Red Cross Line v. Atlantic Fruit Co., 233 N. Y. 373, 135 N. E. 821.

The judgment of the Supreme Court in Grant-Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, is pressed upon us as supporting a different rule, and limiting materially the scope of earlier judgments. We cannot give it that effect. A choice was there involved between the application of the maritime law and that of the Workmen's Compensation Act of Oregon. Laws Or. 1913, c. 112. The injured man was not engaged in the rendition of a maritime service. He was engaged in the construction of a new ship, not in the repair of an old one. 257 U. S. at page 476, 42 Sup. Ct. 157, 66 L. Ed. 321. The Oregon statute is not compulsory, but is founded upon election; and employer and employee had elected to submit to its provisions. 257 U. S. at pages 474, 476, 42 Sup. Ct. 157, 66 L. Ed. 321. The Supreme Court held that admiralty had jurisdiction of the tort since the workman was injured while in navigable waters. It held, however, that in the special conditions there presented the uniformity of the maritime law would not be substantially impaired by upholding a contract for the acceptance of another remedy. ‘The parties contracted with reference to the state statutes,’ and ‘their rights and liabilities had no direct relation to navigation.’ 257 U. S. at page 477, 42 Sup. Ct. 157, 66 L. Ed. 321.

Two elements of distinction were thus relied upon as justifying an exception to the general rule. Neither of those elements is present in the case at bar. The service here was maritime. The remedy under the New York statute, unlike the remedy under the Oregon one (if we exclude from consideration a recent amendment, Laws 1922, c. 615, § 113), is independent of agreement. Matter of Smith v. Heine Safety Boiler Co., 224 N. Y. 9, 11,119 N. E. 878, Ann. Cas. 1918D, 316. We think the decision in Grant-Smith-Porter Co. v. Rohde, supra, is to be limited to the same or kindred situations. It does not mean that the court in every case is to weigh the comparative merits of uniformity and diversity, and decide for or against the statute as the balance may incline to one side or the other. That would be to introduce an element of uncertainty, productive of litigation and hardship almost without limit. Neither workman nor employer would know his rights and remedies until the final word had been spoken by the last appellate court. Too often the statute of limitations would then bar the substitution of the right choice for the wrong one. We find no distinction between the plaintiff's situation and that of Jensen and Stewart, longshoremen working on a vessel, who were held within the protection of the maritime law. 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145. The supremacy of that law, overriding the local statut...