Nogueira v. New York, NH & HR Co.

• Decision Date: 15 April 1929
• Docket Number: No. 245.,245.
• Parties: NOGUEIRA v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

32 F.2d 179

NOGUEIRA v. NEW YORK, N. H. & H. R. CO.

No. 245.

Circuit Court of Appeals, Second Circuit.

April 15, 1929.

Sansone & Gelb, of New York City (Sol Gelb, of New York City, of counsel), for appellant.

John M. Gibbons, of New York City (E. R. Brumley and E. J. Moore, both of New York City, and J. Howland Gardner, of New Haven, Conn., of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

The plaintiff was employed by the defendant to work as a freight handler upon its docks and car floats. On October 13, 1927, at the time of sustaining the injuries complained of, he was working as one of a gang of freight handlers in loading heavy bales of paper, destined for transportation in interstate commerce, onto a 500-ton car float moored at Pier 42, East River. His work consisted in placing a bale of paper upon a hand truck and drawing it some 15 feet along the dock, and thence down an inclined plank which led from the dock to the car float. In going down the plank, he was expected to have the assistance of several other members of the gang. He went in front of the truck, holding its handles, while others at the rear were supposed to fasten hand hooks into the bale and help retard its progress. Due to their negligence, as he contends, the truck got out of control and skidded down the inclined plank, throwing him to the floor of the car float and falling on top of him in such a way as to crush his leg.

We may assume, as have the parties, that prior to the enactment of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950) a finding by the jury of negligence would have established in favor of the plaintiff a cause of action under the Employers' Liability Act (45 USCA §§ 51-59). See Erie R. R. Co. v. Jacobus, 221 F. 335 (C. C. A. 3); The Passaic, 204 F. 266 (C. C. A. 2); The Erie Lighter 108, 250 F. 490 (D. C. N. J.); Southern Pacific Co. v. Jensen, 244 U. S. 205, 213, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. The dispute is whether compensation under the later statute has not now been made the sole relief which plaintiff may obtain.

This act provides a compulsory system of compensation for disability or death resulting from injury (irrespective of the employer's fault) to employees in certain maritime employments. The statute is long, and it will suffice to refer to certain of its provisions, which appear pertinent to the present inquiry. Section 3 provides that compensation shall be payable in respect to disability or death of an employee, but only if the injury occurs on navigable waters of the United States, and if recovery may not validly be provided by state compensation laws. It also excepts from the act certain employees, including "a master or member of a crew of any vessel," and "any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." Employees of the above description are also expressly excluded from the definition of "employee" given in section 2(3). Section 4 declares that "every employer shall be liable for and shall secure by insurance the payment to his employees of the compensation payable under" later sections. Turning back to the definitional provisions (section 2), we find that "the term `employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)." Section 5 relates to the exclusiveness of the compensation liability imposed by the act. It reads as follows:

"Sec. 5. The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee."

These express provisions make it clear that, if the plaintiff had a right to compensation under the act, this right was exclusive of all others.

If the plaintiff's employment was maritime, it can scarcely be doubted that the conditions specified in section 3 are met. He was loading a vessel of more than 18 tons register, and was not the master nor a member of the crew. His injury occurred upon navigable waters. It was one for which recovery could not validly be provided by a state compensation law, if his employment was maritime. Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 49 S. Ct. 88, 73 L. Ed. ___. There the coal company maintained a dock on Superior Bay, Wisconsin. It employed regularly some 18 men, who worked, as directed, upon the dock or upon vessels made fast thereto for unloading. Strand was one of those so employed. He was killed while on a vessel, assisting in the discharge of her cargo. A judgment by the state Supreme Court, sustaining an award to his widow under the state Compensation Act, was reversed. In the opinion of Mr. Justice McReynolds it is said:

"Strand's employment contemplated that he should labor both upon the land and the water. When killed he was doing longshore or stevedore work on a vessel lying in navigable waters, according to his undertaking. His employment, so far as it pertained to such work, was maritime; the tort was maritime, and the rights of the parties must be ascertained upon a consideration of the maritime law. Southern Pacific Co. v. Jensen, 244 U. S. 205, 217 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Washington v. Dawson & Co., 264 U. S. 219 44 S. Ct. 302, 68 L. Ed. 646. * * * The unloading of a ship is not matter of purely local concern. It has direct relation to commerce and navigation, and uniform rules in respect thereto are essential. The fact that Strand worked for the major portion of the time upon land is unimportant. He was upon the water in pursuit of his maritime duties when the accident occurred."

There is, of course, no distinction, in respect to the matter now under consideration, between unloading and loading a vessel. Newham v. Chile Exploration Co., 232 N. Y. 37, 133 N. E. 120, 25 A. L. R. 1018; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 61, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. These cases also tend strongly to prove that the plaintiff, Nogueira, was engaged in maritime employment at the time of his injury. We have only to decide whether the fact that he was loading goods into cars on a car float makes his employment nonmaritime, whereas it would clearly have been maritime, had he been loading a barge or a lighter. The cars were to be carried on the water after they were loaded. That later they will be pulled off and run on land would seem to furnish no more reason for a distinction than would the fact that goods loaded on a barge were later to be transshipped by rail. The statute expressly recognizes that the employment may be maritime only in part. We conclude that the employment was maritime, and that the defendant was liable for the payment of...