Harney v. William M. Moore Building Corporation

• Decision Date: 07 April 1966
• Docket Number: No. 208,Docket 29754.,208
• Citation: 359 F.2d 649
• Parties: Bernard HARNEY, Plaintiff-Appellant, v. WILLIAM M. MOORE BUILDING CORPORATION and Lopier Construction Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

359 F.2d 649 (1966)

Bernard HARNEY, Plaintiff-Appellant, v. WILLIAM M. MOORE BUILDING CORPORATION and Lopier Construction Corporation, Defendants-Appellees.

No. 208, Docket 29754.

United States Court of Appeals Second Circuit.

Argued January 6, 1966.

Decided April 7, 1966.

Donald D. Olman, New York City, (Jacob Rassner, New York City, on the brief), for plaintiff-appellant.

Vincent A. Catoggio of Purdy, Lamb & Catoggio, New York City, for defendants-appellees.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Bernard Harney appeals from a judgment dismissing his complaint and from the denial of his motion for a new trial, by jury. Harney brought this action under the Jones Act, 46 U.S.C. § 688, alleging negligence, and for unseaworthiness under general maritime law.

Harney was employed by defendants, and his duties took him aboard an unnamed barge tied up on the north side of the Harlem River near a bridge then being constructed or rebuilt by defendants. The barge was used to support a crane used in this endeavor, and to hold supplies. One end of the barge almost touched shore; the other was near one of the bridge piers. Between this end and the shore a cofferdam was being built. On the cofferdam were two six-inch pumps used to keep it pumped out. On the barge was an inch and a half pump used to prime the cofferdam pumps and to pump out the barge.

The barge had no motive power, and remained stationary at all relevant times. There was a light in the deck-house on the barge, but the way to the barge pump was not lighted. Harney worked a shift from 4:00 p. m. to midnight, during which time he was usually on the barge 2-3 hours. No one else was present then. Harney was hired as a stationary pump engineer in November, 1958. His duties included keeping watch and maintaining the cofferdam pumps. Harney testified that his duties also were "to see, * * * that the water wouldn't be high in the barge where it would be ready to sink, or if at any time the barges broke loose, to try to secure it as best I could" (Record, 175). Evidently the craft jurisdiction of his union did not extend to handling lines, however. In the short time Harney was employed by defendants Harney never had occasion to pump out the barge or to secure the barge. His relief testified that he had had to pump out the barge.

Harney was injured on November 25, 1958 while on the barge engaged in priming a cofferdam pump. His testimony was that he tripped over equipment on the barge while making his way to the inch and a half pump, and fell into the river. The barge had no guard-rail. Harney alleged that the barge was unseaworthy because material left by construction workers on the barge was scattered and helter-skelter, there was no light, except a flashlight he carried, and there was no guard-rail. He testified that "you had to be very cautious in order to walk, and there was no path made to or from the inch and a half pump. You had to pick your way over these materials." Included among those "materials" was cable, line, oxygen tanks, a tool box, and a flexible rod.

Harney made a claim for, and obtained, New York State Workmen's Compensation payments.

Harney demanded a jury trial. But the District Court dismissed the Jones Act claim on the ground that plaintiff was covered by exclusive compensation provisions of the New York Workmen's Compensation Law or the federal Long-shoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950. The court treated the unseaworthiness claim as if made in admiralty, there being no diversity, and decided after trial without a jury for defendant, on the ground Harney was not performing in ship's service, or, alternatively, that there was no showing of unseaworthiness and that Harney's negligence "contributed 100% to the cause of the accident."

The District Court dismissed the Jones Act claim, citing Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948), on the theory that the case was in the twilight zone, or the area of maritime but local, and "a state statute will be permitted to have force and effect despite the fact that it may deal with a maritime injury" (Record, 327). The state statute given effect was § 11, New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, making the employer's liability under that act exclusive (Record, 146).

Jurisdiction to award compensation and Jones Act jurisdiction, however, do not overlap. The doctrines of maritime but local and the twilight zone, which apply to cases of competing compensation schemes (the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, and state acts), have not been extended to cases involving the Jones Act and a compensation scheme. Norton v. Warner Co., 321 U.S. 565, 569, 64 S.Ct. 747, 88 L.Ed. 430 (1944); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953) (FELA); Gilmore & Black, Admiralty 355-358 (1957). Furthermore, even in the twilight zone, or in the area of maritime but local, seeking or receiving state compensation is not necessarily a bar to compensation under the Longshoremen's Act, as long as no double recovery is permitted. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Newport News Shipbuilding & Dry Dock Co. v. O'Hearne, 192 F.2d 968 (4 Cir.1951); Western Boat Building Co. v. O'Leary, 198 F.2d 409 (9 Cir.1952); Massachusetts Bonding & Ins. Co. v. Lawson, 149 F.2d 853 (5 Cir.1945); Michigan Mutual Liability Co. v. Arrien, 233 F.Supp. 496 (S.D.N.Y.1964), aff'd 344 F.2d 640 (2 Cir.1965); United States Fidelity and Guaranty Co. v. Lawson, 15 F.Supp. 116 (S.D.Ga.1936).¹ In Newport the court even felt that the prior state proceeding was without jurisdiction, that is, that the case was not within the twilight zone; yet the court allowed recovery under the Longshoremen's Act, with a set-off for state benefits. See also Globe Indemnity v. Calbeck, supra, note 1. Accordingly these two cases are particularly applicable to the present situation.

All the record reveals is that Harney "did obtain compensation under the New York State Workmen's Compensation Act" (Record, 146), and that he "made claim against the defendants * * * under the New York State Workmen's Compensation Statute" (Record, 266). The New York act is of the automatic type, in that payments can be made by the employer's insurance carrier to the employee without any administrative proceedings, let alone an award. N.Y. Workmen's Compensation Law § 25 (1).² Only when the employer decides to controvert the right to compensation is there a hearing before the board, leading to an award. § 25(2). The record before us now permits a finding that Harney accepted such voluntary payments, without initiating any proceedings (other than making his claim). Under such circumstances it is clear that he was not barred from pursuing his Jones Act remedies. On remand, of course, the parties are free to develop further facts.

Section 113 of the New York act provides that "awards * * * may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies * * *." This statute has received approval when attacked as contrary to the FELA, South Buffalo R. Co. v. Ahern, 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395 (1953); Heagney v. Brooklyn Eastern District Terminal, 190 F.2d 976 (2 Cir.1951), cert. den. 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 688 (1952), and has been held to be effective to waive Jones Act rights, Braadt v. City of New York, 21 A.D.2d 957, 251 N.Y.S. 2d 376 (3rd Dept.1964), aff'd 15 N.Y.2d 875, 258 N.Y.S.2d 413, 206 N.E.2d 349, cert. den. 382 U.S. 21, 86 S.Ct. 83, 15 L.Ed.2d 14 (1965). But since the record at present does not disclose any award, let alone a waiver, Harney was not shown to be barred under this provision.

A final compensation order or award has been said to be res judicata, barring a subsequent Jones Act claim. Biggs v. Norfolk Dredging Co., 237 F.Supp. 590 (E.D.Va.1965) (counsel present); Trupasso v. McKie Lighter Co., 79 F.Supp. 641 (D.Mass.1948) (award affirmed in state court). See also Clowers v. Tidewater-Raymond-Kiewit, 237 F.Supp. 1015 (E.D.Va.1965). But a plaintiff is barred neither by an ex parte award, with the claimant not present, Biggs; Smith v. Service Contracting, Inc., 236 F.Supp. 492 (E.D.La.1964), nor by an award made despite efforts of the claimant to withdraw, Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6 Cir.), cert. den. 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 34 (1953); compare United States Fidelity & Guaranty v. Lawson, supra.

It appears that non-membership in the crew, under the Longshoremen's Act, is not a "jurisdictional fact," and where an award makes no jurisdictional finding, the presumption of jurisdiction attaches to a Deputy Commissioner's award, and bars Jones Act proceedings. Hagens v. United Fruit Co., 135 F.2d 842 (2 Cir. 1943); but see Bretsky v. Lehigh Valley R. Co., 156 F.2d 594 (2 Cir.1946) (FE LA and state award no bar); Hoffman v. New York, N. H. & H. R. Co., 74 F.2d 227 (2 Cir.1934), cert. den. 294 U.S. 715, 55 S.Ct. 513, 79 L.Ed. 1248 (1935) (same); see also Mike Hooks, Inc. v. Pena, 313 F.2d 696 (5 Cir.1963), Smith, supra, and Guidry v. Ocean Drilling & Exploration Co., 244 F.Supp. 691 (W.D. La.1965), which makes the estoppel depend on whether the fact was contested before the state board. In any case, since there was no evidence of a state proceeding or an award, Harney was not shown to be estopped from claiming seaman status. Compare Roth v. McAllister Bros., Inc., 316 F.2d 143 (2 Cir.1963).³

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