Newham v. Chile Exploration Co.

• Decision Date: 18 October 1921
• Parties: NEWHAM v. CHILE EXPLORATION CO.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 37

133 N.E. 120

NEWHAM

v.CHILE EXPLORATION CO.

Court of Appeals of New York.

Oct. 18, 1921.

Proceedings under the Workmen's Compensation Law by Nicholas Newham against the Chile Exploration Company. Award of the State Industrial Commission affirmed by the Appellate Division (195 App. Div. 291, 187 N. Y. S. 31), and defendant appeals.

Reversed, award set aside, and claim dismissed.

Appeal from Supreme Court, Appellate Division, Third department.

Carroll A. Wilson, R. C. Klugescheid, and George O. Redington, all of New York City (Carroll A. Wilson, of New York City, of counsel), for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for Industrial Commission.

Wood, Molloy & France, of New York City (Francis X. Hennessy, of New York City, of counsel), for respondent.

CRANE, J.

[1] We have held in Matter of Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53, and in Matter of Anderson v. Johnson Lighterage Co., 224 N. Y. 539, 120 N. E. 55, and in Matter of Keator v. Rock Plaster Manufacturing Co., 224 N. Y. 540, 120 N. E. 56, that, if the employee was engaged at the time of his injury in the performance of a maritime contract, the state did not have jurisdiction of the matter, and the Workmen's Compensation Law (Consol. Laws, c. 67) did not apply. This is the deduction which we have made from the cases of 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, and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145.

[2][3] It remains, therefore, for us to determine whether or not in this case Newham was working under a contract of a maritime nature.

‘Whatever is done to operate a ship, to aid her physically in the performance of her mission, viz. to take freight or passengers, to carry freight or passengers, to unload freight or passengers and to preserve her while so doing, is a maritime service.’ Robinson v. The C. Vanderbilt (D. C.) 86 Fed. 785.

It has been held that a stevedore's contract of employment is a maritime contract. Atlantic Transport Co. v. Imbrovek, 225 U. S. 700, 32 Sup. Ct. 835, 56 L. Ed. 1263. The weighing, inspecting and measuring of the cargo of a vessel constitute maritime service. Constantine v. The River Queen (D. E.) 2 Fed. 731. See Gilis v. The Mattie May (D. C.) 47 Fed. 69. In De Lovio v. Boit, 2 Gall. 398,1 Fed. Cas. No. 3,776, Judge Story said admiralty had jurisdiction of--

‘All controversies respecting freight; of damages to goods shipped; of the wages of mariners; of the partition of ships by public sale; of jettison; of commissions or bailments to masters and mariners; of debts contracted by the master for the use and necessities of his ship; of agreements made by the master with merchants, or by merchants with the master; of goods found on the high seas or on the shore; of the armament or equipment of ships, galleys or other vessels; and generally of all other contracts declared in the customs of the sea.’

Newham, the claimant here, while not a stevedore, was performing services of such a similar nature that his employment was that of maritime service.

The Chile Exploration Company was engaged in loading the steamship Maipo to carry freight to Valparaiso and other ports on the western coast of South America. Patane & Co. were stevedores doing the work, having been employed by the captain of the ship. The ship belonged to the Chilean government, and the captain was given the sole right to employ the stevedors. Arne & Co. was employed by the Chile Exploration Company to do the checking and tallying of the cargoes on the dock, which constituted no part of the stevedoring. The work consisted of checking the freight as it was delivered at the docks from the trucks or lighters, inspecting the packing and noting the number and quantity of the several parcels or kinds of freight. The Chile Exploration Company was naturally interested in having the freight packed safely and in such a way that it could be easily discharged at the ports in turn and further in having all the space used to its utmost carrying capacity. To accomplish these results required experience and stowage ability. The stevedore, not being the servant or contractor of the charterer, could not be expected or relied upon to consider these matters as fully as would a representative employed by the company. Arne & Co., the checker, had nothing to do with the sufficiency or safety of loading the ship. Under these circumstances Newham was employed by the Chile Exploration Company to look after these matters.

I will assume for the purpose...