Frankel v. Bethlehem-Fairfield Shipyard, 1610.

• Citation: 46 F. Supp. 242
• Decision Date: 18 July 1942
• Docket Number: No. 1610.,1610.
• Parties: FRANKEL v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.
• Court: U.S. District Court — District of Maryland

46 F. Supp. 242

FRANKEL v. BETHLEHEM-FAIRFIELD SHIPYARD, Inc.

No. 1610.

District Court, D. Maryland.

July 18, 1942.

I. Duke Avnet, of Baltimore, Md., for plaintiff.

Robert E. Coughlan, Jr., of Baltimore, Md., for defendant.

CHESNUT, District Judge.

In this case the plaintiff sues at law under the Jones Act, 46 U.S.C.A. § 688, for personal injuries received in the course of his duties as an employe of the defendant, the Bethlehem-Fairfield Shipyard, Inc., a Maryland corporation, in the construction of one of the new Liberty ships, the Patrick Henry, after she had been launched but before her completion. The particular Act of Congress referred to, enacted in 1920, authorizes such a suit by "any seaman" and provides for a cause of action in accordance with the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The defendant has filed a motion to dismiss the suit on jurisdictional grounds because, as contended, the plaintiff was not a "seaman" within the meaning of the Act, and was not engaged in a maritime employment at the time of his injury and therefore his exclusive remedy is under the Maryland Workmen's Compensation Law (Flack's Ann.Code of Md. Art. 101, § 1 et seq.). The Jones Act is applicable only in cases of maritime torts where admiralty would have jurisdiction. Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748; Benedict on Admiralty, 6th Ed., Vol. 4, pp. 201, 202.

From the papers in the case and the agreement of counsel for the parties as they developed in the argument on the motion, the relevant and controlling facts are admittedly as follows:

The defendant is a Maryland corporation engaged largely in shipbuilding. At the time of the injury to the plaintiff he was employed by the defendant as a "handy man" on one of the new Liberty ships, being built by the defendant. This ship had been launched and was lying in navigable waters in the Port of Baltimore, Maryland, but had not been completed. The plaintiff was engaged in installing machinery and equipment in the ship and was particularly occupied at the time of his injuries in assisting in installing dynamos in the engine room of the vessel. He alleges that his injury was due to the negligence of the defendant in failing to provide adequate protection and equipment on the platform on which he was working, in consequence of which he fell therefrom and was permanently injured. The accident occurred on or about October 14, 1941. Thereafter he filed a claim with the Maryland State Industrial Accident Commission claiming the benefits of the State Workmen's Compensation Act. The Commission has passed what is said to be an ex parte formal order awarding him compensation at the rate of $20 per week accounting from November 2, 1941; but it is said that no adversary hearing has yet been held by the Commission in the case, and the plaintiff has not yet accepted any compensation. The defendant carries workmen's compensation insurance as required by the Maryland statute. The suit in this case was filed by the plaintiff on May 28, 1942.

The question of jurisdiction thus presented is another of a long series of cases which require for their decision the determination of the boundary line between the jurisdiction of the federal courts in the matter of maritime torts, and the exclusive features of State compensation laws. It is not disputed that in terms the Maryland statute expressly covers the extra-hazardous employment of shipbuilding. Maryland Code, Art. 101, § 33, subsections (8 and 9), read as follows:

"(8) The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company.

"(9) Shipbuilding, including construction and repair in a ship yard or elsewhere, not included in paragraph 8."

The remedy afforded by the State statute is exclusive where it is applicable. Sec. 14; Victory Sparkler & S. Co. v. Francks, 147 Md. 368, 375, 128 A. 635, 44 A.L.R. 363; Arundel Corp. v. Ayers, 167 Md. 569, 574, 175 A. 586; Kramer v. Globe Brewing Co., 175 Md. 461, 470, 2 A.2d 634. It is therefore clear that the Maryland statute covers the case and this court has no jurisdiction in admiralty unless the circumstances show a situation which under federal law by virtue of the Constitution and statutes as determined in judicial decisions forbids the application of the State statute. The general test whether a tort is maritime, and therefore whether within the admiralty jurisdiction, is determined by the place where it occurs, that is, on navigable waters or on land. If the former, ordinarily admiralty has jurisdiction, although there are judicial intimations that the nature of the tort must also have a maritime flavor. Robinson on Admiralty (1939) p. 70. The Constitution, Art. 3, § 2, provides that the "judicial Power shall extend * * * to all Cases of admiralty and maritime Jurisdiction". Congress has implemented the constitutional grant of power by providing, 28 U.S.C.A. § 41(3), that the District Courts of the United States shall have 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, and to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel their rights and remedies under the workmen's compensation law of any State, District, Territory, or possession of the United States, which rights, and remedies when conferred by such law shall be exclusive; * * *. The jurisdiction of the district courts shall not extend to causes arising out of injuries to or death of persons other than the master or members of the crew, for which compensation is provided by the workmen's compensation law of any State, District, Territory, or possession of the United States."

Congress has further provided, 28 U.S. C.A. § 371, that the jurisdiction so conferred upon the District Courts shall be exclusive in "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 to claimants for compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen's compensation law of any State, District, Territory, or possession of the United States."

The italicized portion of these statutes was added by amendments in 1917 and 1922, which obviously were intended to give effect to the several state compensation laws; but it is important to note that the Supreme Court has held that the amendments were unconstitutional because they invalidly delegated to the States the power to legislate with respect to admiralty jurisdiction, thus tending to impair the required uniformity of federal admiralty law; and with respect to the common law remedies referred to, state compensation statutes are not included therein as they do not constitute remedies known to the common law. Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.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 S.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145; State of Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646.

But, despite these decisions, there has developed in the opinions of the Supreme Court a line of cases, seemingly including the instant case, where the local state compensation laws have been held applicable to the exclusion of the admiralty jurisdiction. Illustrative of these are Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; State Industrial Comm. of New York v. Nordenholt Co., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A.L.R. 1013; Millers' Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470; United States Cas. Co. v. Taylor, 4 Cir. 64 F.2d 521, certiorari denied 290 U.S. 639, 54 S.Ct. 56, 78 L.Ed. 555; Arundel Corp. v. Ayers, 167 Md. 569, 574, 175 A. 586. Such cases involve factual situations said to be purely "local" matters, that is, so limited in their operation that giving effect to the local state compensation law would not interfere with the uniformity of the general maritime law in interstate and foreign commerce, and would not be prejudicial to the characteristic features of the maritime law. London Guarantee & Acc. Co. v. Industrial Acc. Comm., 279 U. S. 109, 125, 49 S.Ct. 296, 73 L.Ed. 632. The word "local" does not signify locality only in the ordinary sense, and does not exclude cases where the torts or injuries occur on navigable waters, and not on land (which is the frequently stated test as to whether a tort is within the admiralty jurisdiction). "The `local' aspect of the matter has been made to depend on the character of the injured man's work." Robinson on Admiralty (1939) p. 101.

In this case the plaintiff was an employe of a shipbuilding company engaged in the completion of a ship that had been launched and was lying in navigable waters but was not sufficiently completed for use in navigation. It is well settled in this country that the work of building a ship is not a maritime contract even though the ship may have been launched. Until a ship has been completed and is put into commission for navigation, the work of its construction is not maritime in nature. Robinson on Admiralty (1939) 162-165, 170, 171; People's Ferry Co. v. Beers, 20 How. 393, 15 L.Ed. 961; Thames Towboat Co. v. The Francis McDonald, 254 U.S. 242, 41 S.Ct. 65, 65 L.Ed. 245.

Whether the state or federal law controls in the situation that we have here has been specifically considered in a number of cases involving parallel facts. In Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 158, 66 L.Ed. 321, 25 A.L.R. 1008, Rohde, a carpenter, received injury...