In re Herbert

• Decision Date: 29 June 1933
• Citation: 186 N.E. 554,283 Mass. 348
• Parties: In re HERBERT'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 348

186 N.E. 554

In re HERBERT'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1933.

Appeal from Superior Court, Suffolk County; F. T. Hammond, Judge.

Proceeding under the Workmen's Compensation Act by Mildred Herbert, claimant, for the death of William Herbert, employee, opposed by the Coleman Disposal Company, employer, and the Globe Indemnity Company, insurer. From a decree for claimant in accordance with a finding of the Industrial Accident Board affirming the decision of the single member, insurer appeals.

Affirmed.

H. F. Tracy, of Boston, for appellant.

S. B. Horovitz, of Boston, for appellee.

RUGG, Chief Justice.

The main question for decision is whether this claim can be prosecuted under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152) or whether it is outside the scope of that act because within the exclusive jurisdiction of admiralty. The pertinent facts are these: The deceased employee worked on a scow used by his employer only to carry garbage from Boston over navigable waters to Spectacle Island where it was unloaded. That island is distant about two miles from the shore and is in Boston harbor within the city of Boston. The scow was part of the time at Dorchester on the shore of the mainland and part of the time at Spectacle Island, all in navigable waters. It was always towed and had no motive power. The employee had quarters on the scow and slept there except that when it was tied up at Dorchester he usually slept at home. It was a part of his duty to sweep the deck of the scow after it was unloaded. The record does not disclose what were his other duties. The scow was tied up at the wharf at Spectacle Island. One witness testified: ‘The scow doesn't move; it might move an hour or two.’ Shortly before the accident the deceased had been seen sweeping the deck of the scow and the work had not been finished when he fell backwards and overboard and was drowned in the waters of Boston harbor. The finding of facts is rather meager but both parties have argued the case on the theory that the above narration shown by uncontradicted evidence is in substance true and we treat the case as it has been treated by the parties.

The employer had voluntarily seen fit to insure, and the decedent also had elected to be bound, under the terms of the Workmen's Compensation Act. The insurer freely undertook to protect the employer. So far as the parties are concerned they all chose to become subject to that statute. Unless the facts bring the case within the exclusive jurisdiction of maritime law, all rights, remedies and obligationsof the parties must be determined in accordance with the Workmen's Compensation Act. Young v. Duncan, 218 Mass. 346, 106 N. E. 1.

The words of the Workmen's Compensation Act are broad enough to include the case at bar. The only point is whether it is permissible to grant relief by that act under the decisions of the United States Supreme Court as to the exclusiveness of admiralty jurisdiction. There is nothing in our own decisions to stand in the way. Gillard's Case, 244 Mass. 47, 138 N. E. 384;Toland's Case, 258 Mass. 470, 155 N. E. 602. Doubtless the accident here in question was maritime in nature at least in some aspects. It occurred upon navigable waters sometimes said to be the test whether it is of admiralty cognizance. Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U. S. 52, 60, 34 S. Ct. 733, 58 L. Ed. 1208,51 L. R. A. (N. S.) 1157;Proctor v. Dillon, 235 Mass. 538, 541, 129 N. E. 265;Dorman's Case, 236 Mass. 583, 129 N. E. 352. Recent authoritiative decisions have laid down the principle however that where facts disclose a situation of mere local concern where regulation by state statutes will not materially prejudice essential features of general martitime law, local compensation acts may be operative. In Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, at page 476, 42 S. Ct. 157, 158, 66 L. Ed. 321, 25 A. L. R. 1008, where a carpenter engaged in the construction of a ship nearly completed was injured, it was stated that as both parties had accepted and proceeded under a workmen's compensation statute ‘it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. * * * Under such circumstances regulation of the rights, obligations and consequent liabilities of the parties, as between themselves, by a local rule would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations.’ In Millers' Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, recovery was permitted under a state workmen's compensation act for the death of a diver who had submerged himself from a floating barge anchored in a navigable river for the purpose of sawing off timbers of an abandoned set of ways which had become an obstruction to navigation. It was said at pages 64, 65 of 270 U. S.,46 S. Ct. 194, 195: ‘In the cause now under consideration the record discloses facts sufficient to show a maritime tort to which the general admiralty jurisdiction would extend save for the provisions of the state Compensation Act; but the...