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Admiralty and the Workmen's Compen

sation Law

By FRANCIS J. MACINTYRE1

There is no subject in the law so little understood by the ordinary legal practitioner as is the subject of admiralty and the general maritime law. Unless the practitioner has specialized in it, or for some reason has been obliged to make a special study of it, its scope and its principles, if known at all, are known and understood only in a very general, hazy and confused fashion. And yet it is one of the oldest subjects known to the law,-a relic of the civil law. Then, too, we have in our law an entirely new subject, the Workmen's Compensation Law. This law was written into the statute books of the state of New York in 1913, was re-enacted in 1914 and went into effect on July first of the latter year. This law, likewise, is little known to the profession at large for the reason that it was purposely written and prepared so that it could be carried into execution and its remedies could be given without the benign aid or urgent need, in the ordinary case, of an attorney for a claimant seeking an award thereunder. Hence the legal profession generally, except in the extraordinary case, has had little to do with it. We can readily understand this when we compare the hundreds of thousands of claims that have been determined and paid under this law with the comparatively negligible number of claims that have found their way into the courts.

History, it is said, repeats itself; so also, one might say, does the law. As in the past numerous conflicts arose in England between the jurisdiction of admiralty and the jurisdiction of the common law; so also in these modern times a similar conflict has arisen between that same ancient branch of our law, the general maritime law, and that very late addition to the body of our law, the workmen's compensation law. The conflict is all the more confusing because as the writer has pointed out both subjects are but slightly and casually practiced by the profession at large and therefore are but slightly and casually known. For this reason, it would seem a brief discussion of the history, the development and the probable outcome of this conflict between the jurisdiction of admiralty and the jurisdiction of the workmen's compensation law should be of no little interest to both the student and the practitioner in the law.

1Of the New York City bar.

Some of our states in adopting workmen's compensation laws avoided the difficulty by expressly excluding maritime employments from their operation and scope. Apparently this was done not so much for the purpose of avoiding the difficulties of the conflict between the two jurisdictions, but because the legislatures of those states evidently came to the conclusion that to include such employments under their acts was in violation of the federal constitution. In this conclusion they were justified by the decision of the United States Supreme Court in Southern Pacific Company v. Jensen. This case will subsequently be discussed at length.

The Workmen's Compensation Law of the State of New York,3 however, included certain maritime employments.

The State Industrial Commission, or, as it was then known, the Workmen's Compensation Commission under these groups proceeded, to assume jurisdiction of this class of cases and was sustained in that position by the Court of Appeals of the State of New York.5

In the Jensen case there was a claim by a widow for compensation for the death of her husband. The husband, a stevedore, was killed while he was operating an electric truck which was run on and off a vessel in loading and unloading it. The majority opinion of the Supreme Court of the United States held it settled doctrine that, in consequence of Article III, section 2, of the constitution, extending the judicial powers of the United States "to all cases of admiralty and maritime jurisdiction," and Article I, section 8, conferring upon Congress power "to make all laws which may be necessary and proper for carrying into execution the foregoing powers" etc., Congress has paramount power to fix and determine maritime law which shall prevail throughout the country; that by section 9 of the Judiciary Act of 17896 the District Courts of the United States were given "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction saving to suitors in all cases the right of a

*

2244 U. S. 205 (1916).

*

Chap. 816, L. 1913; am'd Chap. 41, L. 1914 and Chap. 316, L. 1915; constituting Chap. 6, Cons. Laws.

"Sec. 2. * * Group 8. The operation, within or without the state including repair of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company; by marine wrecking. (Re-enacted by Chapter 249, laws of 1918)."

"Group 9. Shipbuilding, including construction and repair in a shipyard or elsewhere, not included in group eight."

"Group 10. Longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage. (Re-enacted by Chapter 249, Laws of 1918)."

'Jensen v. Southern Pacific Co., 215 N. Y. 514 (1915); Walker v. Clyde Steamship Co., 215 N. Y. 529 (1915).

61 Stat. 76, 77.

common law remedy where the common law is competent to give it (Judicial Code, sec. 24, 256);" that the work of the deceased was maritime in nature and the rights and liabilities in connection therewith were matters clearly within the admiralty jurisdiction; and finally that the remedy of the compensation law is of a character wholly unknown to the common law, incapable of enforcement by ordinary process and is not saved to suitors from the grant of exclusive jurisdiction.

Following the decision in this case the ship builders, steamship owners, master stevedores and others engaged in maritime work discontinued the practice which had become more or less general among them of settling the claims of their employees for injuries received in the course of their employment under the provisions of the Compensation Law. At the same time the practitioner making a specialty of negligence once more turned his attention to this class of maritime

case.

Soon after the decision by the United States Supreme Court in the Jensen case, Congress took a hand in the matter and on October 6, 1917, amended the Judicial Code. What Congress considered to be the effect of the amendment is best shown in the report of the Senate Judiciary Committee, from a reading of which it seems clear that

7"The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several

states.

Third, 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 and to claimants the rights and remedies under the workmen's compensation "law of any state." (Judicial Code, sec. 256; sec. 1233 in the new revision). "The district courts shall have original jurisdiction as follows:

"Third, of all cases 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 and to claimants the rights and remedies under the workmen's compensation law of any state; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as a prize." (Judicial Code, sec. 24; sec. 99; in new revision).

(The italics in the above quotations represent the amendments introduced by the Act of October 6, 1917. (Ch. 97, secs. 1, 2.) ) 8"65th Congress, Ist Session.

Report No. 139.

SENATE Amending the Judicial Code October 2, 1917-Ordered to be printed. Mr. Ashurst, from the committee on the Judiciary, submitted the following: REPORT (To accompany S. 2916)"

"The Committee on the Judiciary, to which was referred the bill (S. 2916) to amend sections 24 and 256 of the Judicial Code, relating to the jurisdiction of the district courts, so as to save to claimants the rights and remedies under the workmen's compensation law of any State, having considered the same, recommend its passage without amendment.'

"The Judicial Code, by sections 24 and 256, confers exclusive jurisdiction on the district courts of the United States of all civil cases 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'."

"It was declared by the Supreme Court of the United States in the case of South ern Pacific Co. v. Jensen (Sup. Ct. Advance Opinions, No. 155, pp. 524-545)

Congress, at least, in passing the bill and making the amendment, did not intend to take away any of the admiralty jurisdiction from the federal courts.

But what have the courts said on this point? The cases in which the amendment has been considered are hereinafter discussed. They are seen to be a collection of contrary and contradictory decisions. Federal district court has differed from federal district court and state court has been opposed to state court.

In the case of Ruddy v. Morse Drydock & Repair Company9 the deceased met his death while working on a vessel and his administratrix brought an action against the employer alleging a common law liability. The occupation of the deceased was within the purvieu of the Workmen's Compensation Law. The defendant claimed that such an action did not lie since the amendments of sections 24 and 256 of the Federal Judicial Code, in the absence of a claim that the defendant had failed to provide insurance as provided by the New York Compensation Law. Plaintiff claimed an election of either taking compensation or bringing a common law action, or of proceeding in admiralty. Cropsey, J., in dismissing the complaint and denying a motion for a new trial, said:10 "But how can there be such an election? (1, 2) If the Workmen's Compensation Law is applicable, then surely its provisions, making its benefits the exclusive liability of the employer, must be effective, and there can be no common-law liability. The state statute gives no election to the employee unless the employer has failed to furnish the required insurance (sections 11, 52); and, if he has so failed, then the employee may sue as if there was no statute. But if the employer has complied with the statute, there can be no election by the employee. He cannot then determine which remedy he will pursue. He must take the benefits provided by the statute. Furthermore, Congress could not broaden the effect

that 'the remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction.' The bill (S. 2916) proposed only to amend the Judicial Code by so enlarging the saving clause as to include the rights and remedies under the compensation law of any state. Inasmuch as not only the remedy but sometimes the right under the compensation plan is unknown to the common law, both rights and remedies are included in the bill. The bill if enacted will not disrupt the admiralty jurisdiction of the Federal Courts. The most that can be said of it will be that it is a recognition by Congress that a concurrent jurisdiction, State and Federal, should exist over certain matters. Actions that were formerly triable in admiralty courts will still be triable there. Where the cases were formerly triable only in such courts it will now be possible for the State, through its compensation plan, to determine the rights of the parties concerned. In other words, there being a concurrent jurisdiction, the injured party, or his dependents, may bring an action in admiralty or submit a claim under the compensation plan."

107 Misc. (N. Y.) 199 (1919).

10At p. 201.

of a state statute. No act of it could give an employe an election of remedies in the state court which was not given by the state statute. What, then, is the effect of the 1917 amendments?"

"(3) They must have to do with the right to take proceedings in the United States courts, not in the state courts. The amendments, coming as they did after the Jensen decision, have an added significance. In that case the attempt was made to hold the employer liable under the Workmen's Compensation Law, and it was upon the employer's appeal that the United States Supreme Court rendered its decision, holding that the state statute did not apply to maritime workThe amendments evidently were intended to overcome the effects of that decision, by making state statutes, which in terms covered such workers, valid and enforceable by maritime workers as well as by others."

ers.

"(4) Even had a different conclusion been reached, the fact that the United States District Court has construed these amendments, and has held that they did away with any right to sue in admiralty, and hence necessarily made valid the provisions of the state statute, should be given controlling weight. The Steamlighter Howell (U. S. Dist. Ct., Southern District of N. Y., March 6, 1919, Learned Hand, D. J. (257 Fed. 578)."

From Special Term, Kings County, we have the case of Dziengelewsky v. Turner & Blanchard, Inc.," which is clearly contra to Ruddy v. Morse Drydock Company. In the Dziengelewsky case plaintiff's intestate, a longshoreman in the employ of the defendant, was engaged in loading a steamship from the lighter lying alongside of the steamship. A companionway broke and plaintiff's intestate was thrown into the water and drowned. It was held on the authority of Liverani v. Clark & Son,12 on a motion to set aside the verdict for the plaintiff and for the dismissal of the complaint, that the same should be denied. Van Siclen, J., said:13 "A careful reading of the briefs submitted on this motion, and a full consideration of the arguments made and the cases cited, convinces the court that the plaintiff was within the law by coming into the state court and asserting her common-law right to recover damages for the loss of her husband while engaged in maritime work. See Liverani v. Clark & Son, 176 N. Y. Supp. 725."

In Simpson v. Atlantic Coast Shipping Co.14 the court adopted the views expressed in, and is therefore in accord with, Dziengelewsky v.

1107 Misc. (N. Y.) 45 (1919).

12176 N. Y. Supp. 725 (1919). 13 At p. 730.

14176 N. Y. Supp. 731 (1919).

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