Morrison v. Commercial Towboat Co.

Citation227 Mass. 237,116 N.E. 499
PartiesMORRISON v. COMMERCIAL TOWBOAT CO.
Decision Date26 May 1917
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Report from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Francis B. Morrison against the Commercial Towboat Company. Case reported. Judgment for defendant.

Bion B. Libby, Louis E. Flye, and Geo. E. Richardson, all of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston, for defendant.

DE COURCY, J.

This action of tort for personal injuries was brought under the provisions of the Workmen's Compensation Act, St. 1911, c. 751. The plaintiff contends that as the defendant was not a subscriber under the terms of the act the defences of contributory negligence, assumption of risk and negligence of a fellow servant are not open to it by virtue of part 1, § 1. The main contention of the defendant is that the plaintiff was not one of those employees for whose benefit the statute was enacted, and that consequently he cannot recover in this action.

Part 5, § 2, of the statute, as amended by St. 1914, c. 708, § 13, provides:

“Employee' shall include every person in the service of another under any contract of hire, express or implied, oral or written, except masters of and seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer.'

The plaintiff was mate of the Francis C. Hersey,’ a harbor-towboat owned and operated by the defendant: and hence was within the classification of ‘masters of and seamen on vessels.’ The controlling question is, was the towboat Francis C. Hersey ‘engaged in interstate or foreign commerce’ at the time of the accident?

The following material facts are taken from the report of the trial judge: The plaintiff was mate of the Francis C. Hersey,’ a harbor-towboat owned and operated by the defendant. This towboat was engaged entirely within the limits of Boston Harbor. The defendant also owned and operated a barge called the Helen, which admittedly was employed in interstate commerce between Virginia and Massachusetts in the coal trade. When loaded with coal it was drawn by an ocean-going tug from Hampton Roads to Boston, was anchored ‘down on the flats in the harbor,’ and from there towed by a towboat like the Francis C. Hersey to the Lewis Coal Wharf in Chelsea. On the morning of the accident the Helen was lying at Lewis Wharf, having completely unloaded a cargo of coal, and was awaiting the arrival of the tug to start it on its journey south. The tug Hersey came from the defendant's wharf at Boston, and ran under the bow of the barge for the purpose of delivering a bundle of fish, which was to be eaten by the crew of the barge on its trip to Virginia, and for the further purpose to towing the barge down to the flats on its journey for more coal. The plaintiff and a deckhand then tied the bundle of fish to a heaving line which was thrown down to the towboat from the deck of the barge. The plaintiff testified that almost immediately after the fish had been hauled aboard the barge, the donkey-engine on the barge was started, without any warning to the plaintiff, and he was injured by the steam and boiling water.

At the time the accident happened, the captain of the Helen was on the wharf for the purpose, preparatory to towing the barge, of casting off a hawser which made the bow of the barge fast to the wharf. The donkey-engine, from which the steam or boiling water came, was used for heaving in hawsers and the anchor-chain, and was started upon the order of the captain given from the dock.

After the accident the towboat Hersey took the hawser from the barge Helen and towed the barge down to Castle Island in Boston Harbor where it would lie awaiting an ocean-going tug to tow it to Virginia.

By St. 1913, c. 568, the Legislature expressly excluded from the operation of the Massachusetts workmen's compensation statute ‘masters of and seamen on vessels engaged in interstate or foreign commerce.’ See The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264;Souden v. Fore River Ship Building Co., 223 Mass. 509, 112 N. E. 82; Kay's Shipmasters and Seamen (2d Ed.) § 467; 35 Cyc. 1244. As the towboat Hersey on which the plaintiff was master, plied only within the limits of Boston Harbor it may be assumed that at times it was engaged in work that plainly was of intrastate character. The decisive question in this case is, was the towboat Hersey engaged in interstate commerce, within the meaning of the statute, at the time when the plaintiff was injured? And the test of that employment is, was the Hersey at that time ‘engaged in interstate transportation or in work so closely related to it as to be practically a part of it’? See Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, 558, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

[1] Interstate commerce in a legal sense embraces not only the transportation of freight from one state to another but every link in that transportation, whether or not some of the links are netirely within one state. In Foster v. Davenport, 22 How. 244, 16 L. Ed. 248, it was held to extend to a steamboat employed as a lighter and towboat in the harbor of Mobile. In that case, Mr. Justice Nelson, speaking for the court says:

‘* * * This steamboat was employed in aid of vessels engaged in the foreign or coastwise trade and commerce of the United States, either in the delivery of their cargoes, or in towing the vessels themselves to the port of Mobile. The...

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7 cases
  • Mississippi Cent R. Co. v. Knight
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ... ... 499; ... Louisiana Ry. & Nav. Co. v. Holly, 127 La. 615, 53 ... So. 882; Morrison v. Commercial Towboat Co., 116 ... N.E. 499; Gaines v. Detroit, G. H. & M. R. Co., 181 ... ...
  • American Fidelity & Cas. Co. v. Thompson
    • United States
    • Georgia Court of Appeals
    • September 5, 1946
    ... ... whether or not some of the links are [74 Ga.App. 193] ... entirely within one state. Morrison v. Commercial Towboat ... Co., 227 Mass. 237, 116 N.E. 499. The rule that the ... ultimate ... ...
  • Am. Fid. & Cas. Co Inc v. Thompson
    • United States
    • Georgia Court of Appeals
    • September 5, 1946
    ...another, but every link in that transportation, whether or not some of the links are entirely within one state. Morrison v. Commercial Towboat Co, 227 Mass. 237, 116 N.E. 499. The rule that the ultimate destination of the goods shipped, or the destination intended by the passenger when he b......
  • Duart v. Simmons
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 27, 1918
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