State, Ex Rel., v. Duffy

• Decision Date: 16 June 1925
• Docket Number: 18596
• Citation: 148 N.E. 572,113 Ohio St. 96
• Parties: The State, Ex Rel. The Cleveland Engineering Construction Co., v. Duffy Et Al., Industrial Commission Of Ohio.
• Court: Ohio Supreme Court

148 N.E. 572

113 Ohio St. 96

The State, Ex Rel. The Cleveland Engineering Construction Co., v. Duffy Et Al., Industrial Commission Of Ohio.

No. 18596

Supreme Court of Ohio

June 16, 1925

Workmen's compensation - Employees on floating vessels in navigable waters - Constructing docks, jetties, etc., not maritime employment, within admiralty jurisdiction.

Where parties desiring to be controlled by the workmen's Compensation Act have contracted with reference thereto, and its application will not work prejudice to any characteristic features of the general maritime law, or interfere with the proper harmony or uniformity of that law in Its International or interstate relations, such application will not be denied even though the service of the employe Is rendered on "floating vessels in navigable waters," engaged in building docks, jetties, dredging, driving piles, laying pipes for gas and water, building waterworks cribs and similar work.

IN MANDAMUS. ________________ Admiralty, 1 C. J. §§ 67 119; Workmen's Compensation Act, C. J. §22 (1926 Anno.). ________________

The facts are stated in the opinion.

Mr George B. Marty, for petitioner.

Mr. C C. Crabbe, attorney general, and Mr. R. R. Zurmehly, for defendants.

DAY, J.

This is an original action in mandamus in which the plaintiff asks that the defendant, the Industrial Commission of Ohio, accept premiums from it, payable into the state insurance fund under the Workmen's Compensation Act for the benefit of its employees, who are employed "on floating vessels in navigable waters." These men are divisible into eight classes:

(1) Men on floating dredges. Employed in dredging for foundations for docks, cribs, and bridges, dredging trenches for installing pipes of brick, concrete, or metal, for water, sewer, or gas for making, widening, and deepening channels, making fills behind docks, breakwaters, jetties, and similar work.

(2) Pile drivermen. While employed on a floating pile driver, in the work of driving piles for foundations, breakwaters, jetties, docks, dry docks, cribs, wharves, water intake c.ribs, and similar structures.

(3) Men on barges and scows. Employed in hauling stone, piles, and other materials, hauling fuel for dredges, pile drivers, and derricks, in diving and blasting operations, in hauling away and dumping dredged material in the work above set forth.

(4) Men on floating derricks. While employed in lightening, loading, or carrying materials to and from dredges, pile drivers, scows, engaged in the work above set forth.

(5) Men engaged in preparatory work. While on dredges, pile drivers, barges, derrick scows, lighter scows, and dump scows, in the preparation or disposition of materials, building or shaping of cribs, caissons, sections of pipe, or piling, or concrete blocks for use on work of the character hereinbefore enumerated.

(6) Repairmen. Employed while afloat, in the raising, repairing, or caulking of dredges, pile drivers, barges, derrick scows, and dump scows and similar craft.

(7) Tugmen. While the tug is engaged in towing or standing by dredges, floating pile drivers, floating derricks, barges, and scows employed in any of the kinds of work above enumerated.

(8) Stevedores. Men employed on dredges, floating pile drivers, barges, deck scows, dump scows, and floating derricks in loading or unloading materials, while such craft is engaged in the work above enumerated.

The petition recites:

"Its employees in the above classification's desire to accept compensation under the Workmen's Compensation Law of Ohio, in lieu of and in preference to their rights under the maritime law in all cases of injury or loss of life while engaged in said employments."

The petitioner avers that it comes within the scope of the Workmen's Compensation Act, having employed more than three workmen regularly in its business in the state of Ohio; that prior to the 16th day of September, it fully complied with the Workmen's Compensation Law of Ohio and the rules of the Industrial Commission of Ohio, and paid to said Commission premiums covering its employees under the classifications above enumerated, but that on the 16th day of September, 1924, the defendants, as the Industrial Commission of Ohio, refused to accept any further premiums, and have at all times since refused and now refuse to receive any further premiums on any of the general classifications of work herein referred to, upon the sole ground that the employments of the several classifications while engaged on "floating vessels in navigable waters" are maritime employments, and do not come within the provisions of the Ohio Workmen's Compensation Law, and are therefore not within the jurisdiction of the said Industrial Commission of Ohio. The petitioner therefore asks that a writ of mandamus issue commanding the defendants to receive the premiums in accordance with the Workmen's Compensation Law of Ohio to cover the employees of petitioner engaged in the above-mentioned classifications, and to exercise jurisdiction over claims arising out of said employments.

To this petition the defendant has filed a general demurrer, upon the ground that the petition does not state facts sufficient to constitute a cause of action against defendant.

The question then is, as stated by plaintiff, not whether the employments enumerated in the petition are within the wording of the Workmen's Compensation Law of the state of Ohio, but is rather whether the limitations placed upon the broad language of the act by the provisions of the federal Constitution and the judiciary acts passed in pursuance of the constitutional provision exclude such employments from the provisions of the Ohio Compensation Law.

The Constitution of the United States, Section 2, Article HI, contains the following provision:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the `United States, and treaties made, or which shall be made, under their authority; to all oases, affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction * * *."

Now it will be conceded that there is no express provision in the Ohio Compensation Act with reference to employees engaged in maritime employment.

Section 1465-60, General Code, as amended 110 Ohio Laws, 224, is broad in its scope, and does not exempt any one from its application. It applies to all, employers of the state who employ three or more workmen or operators, and the act defines the term "employe" as being one in the service of any person or firm or private corporation, including any public service corporation, employing three or more workmen regularly in the same business.

The federal Judiciary Act provides that tile district court shall have exclusive jurisdiction, among other things "of all civil causes of admiralty' and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it." Judicial Code, Sections 24 and 256, as amended 42 Stats. at L., 634 and 63S; Sections 991(3) ad 1233, U. S. Comp. Stats. (1923 Supp.); Sections 563 and 711, U. S. Rev., St.; Sections 785(3) and 1021(3), Barnes' Fed. Code.

The question raised by this demurrer then is, What is the extent of the application of the State Compensation Act to injuries received by one working upon a boat afloat in navigable waters? Is the same within admiralty jurisdiction?

It appears by the petition that the parties have contracted with reference to the state statute, and asked that the employment be so considered, and that both parties desire to seek relief under the Workmen's Compensation Act.

Under these contracts of employment do the rights and liabilities have a direct relation to navigation? And would the application of the local law (Compensation Act) materially affect any of the rules of the sea and thereby the uniformity which is essential to maritime law?

If the answer to the question simply involved whether or not the injuries were received while the employe was working afloat on navigable waters, the solution would be easy, but, in the light of the definition of the word "maritime," as defined by the courts, it must be something more than simply an injury taking place on navigable waters.

"It is not easy to get an exact definition of the term `maritime contract.' It is far easier to say what is not a maritime contract. `The true criterion,' says Mr. Justice Bradley `is the nature and subject-matter of the contract, as where it has reference to maritime services or maritime transac- tions.' New England Marine Ins. Co. v. Dunham, 78 v. s., (11 Wall.) 1, 20 L.Ed. 90. Browne, in his work on Civil and Admiralty Law (volume 2, p. 82), asks the question, `What contracts should be cognizable ill admiralty?' and answers it, `All contracts which relate purely to maritime affairs.' Maritime contracts are such as relate to commerce and navigation. The Orpheus (U. S), 30 Fed. Cas., 859. To be a maritime contract it is not enough that the subject-matter of it, the consideration or the service, is to be done on the sea. The contract must be in its nature maritime. It must relate to maritime affairs, and have a connection with the navigation of the ship, with her equipment or preservation, or with maintenance or preservation of the crew who are necessary to the navigation and safety of the ship.

"A maritime contract must concern transportation by sea; it must relate to navigation and to maritime employment; it must be one of navigation and commerce on navigable waters. So it is held that a contract under which coal is furnished to a steam dredge engaged in sucking up material from the bottom of a lake and discharging it through pipes...