Resigno v. Jarka Co., Inc. , 248 N.Y. 225 ( 1928 )

A motion was made by the defendant, F. Jarka Co., Inc., under rule 107, subdivision 2, of the Rules of Practice, for judgment on the pleading dismissing the complaint upon the ground that the court did not have jurisdiction of the subject of the action. The motion was granted and the judgment of dismissal has been affirmed by the Appellate Division, one of the justices dissenting.

The complaint alleges that the defendant, F. Jarka Co., Inc., is and was a foreign corporation duly organized and existing under the laws of the State of New Jersey, maintaining an office for the regular transaction of business as stevedore in the borough of Manhattan, city and State of New York. Further allegations set forth that F. Jarka Co., Inc., under contract and agreement with the defendant, the North German Lloyd, was engaged in loading and discharging a cargo upon and from the steamship Hannover, lying afloat in navigable waters at a pier at the foot of Sixth street, city of Hoboken, State of New Jersey. The plaintiff's intestate, Anthony Resigno, was in the employ of F. Jarka Co., Inc., as a longshoreman loading and unloading the ship. The complaint then goes on to allege negligence upon the part of the employer toward this employee, which resulted in his death. It is said that the master failed to provide him with a safe place to work, to furnish him competent fellow-servants; failed to warn him of latent and unknown dangers, or to properly instruct him in the performance of his duties — a common-law cause of action by a servant against his master. The facts of the accident are alleged, followed by a copy of the law of New Jersey, approved March 3, 1848, entitled: "An Act to provide for the recovery of damages where the death of a person is caused by a wrongful act, neglect or default," the damages being recoverable by the representative of the deceased for the benefit of the widow and next of kin.

The courts of this State had jurisdiction of this cause of action, irrespective of Federal statutes, and the complaint should not have been dismissed.

The Workmen's Compensation Law of New Jersey did not apply to the case, as the cause of action arose upon the navigable waters of the United States. (Danielsen v. Morse Dry Dock RepairCo., 235 N.Y. 439; 262 U.S. 756; Washington v. Dawson Co.,264 U.S. 219.) The fact that Anthony Resigno died on land does not change the admiralty nature of the tort. (Kursa v.Overseas Shipping Co., Inc., 217 App. Div. 775; The Chiswick, 231 Fed. Rep. 452; The Anglo-Patagonian, 235 Fed. Rep. 92;U.S. Shipping Board Emergency Fleet Corp. v. Greenwald [1927 C.C.A. 2], 16 Fed. Rep. [2d] 948; Hamburg-Amerikanische Packetfahrt AktienGesellschaft v. Gye, 207 Fed. Rep. 247, 253 [1913 C.C.A. 5].)

As the Workmen's Compensation Act did not apply, an action could be maintained under the New Jersey Death Statute for common-law negligence causing death where the tort was committed upon navigable waters, and the State courts would have jurisdiction of the cause. (Warren v. Morse Dry Dock RepairCo., 235 N.Y. 445; Western Fuel Co. v. Garcia, 257 U.S. 233;Kursa v. Overseas Shipping Co., Inc., supra.)

This complaint, therefore, stated a cause of action for common-law negligence resulting in death for which the New Jersey statute gave a right of action to the representatives for the benefit of the widow and next of kin of the deceased. Such a cause of action could be maintained in the Supreme Court of New York State, as it had jurisdiction of the parties. For this reason, if no other, the judgments below must be reversed, and the motion denied. It will not do, however, to stop here, as evidently the plaintiff is unable to prove a cause of action without the assistance of the benefits of the Federal statute. (Act of June 5, 1920; 41 Stat. 1007, chap. 250, sec. 33 which also appears in 3 Mason's United States Code, Ann. of 1926, title 46, chapter 18, section 688, and known as section 33 of the Jones Act.)

As the deceased was working on a German ship, the Appellate Division has held that he is to be deemed a German seaman, and that the act is intended solely for the benefit of American seamen. Although agreeing with that court that the act was intended solely for the benefit of American seamen, I cannot agree that the deceased was in any sense a part of the crew of the Hannover, and thus a German seaman.

Section 33 of chapter 250 of the act of June 5, 1920, reads as follows:

"Recovery for injury to or death of seaman. — Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. (Mar. 4, 1915, c. 8153, sec. 20, 38 Stat. 1185; June 5, 1920, c. 250, sec. 33, 41 Stat. 1007.)"

The appellant insists that "every seaman" includes every articled seaman of foreign ships entering our territorial waters; that this act applies to all foreign ships and their crews. He refers to the cases of Strathearn S.S. Co. v. Dillon (252 U.S. 348) and Cunard S.S. Co. v. Mellon (262 U.S. 100). As stated in the opinion below, when Congress intended to apply the shipping act to foreign ships, it so stated. This was the basis of the Dillon decision. Section 31 of the act of 1920 (Sec. 597 of Mason's Code), "Payment at ports," provided: "That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement." Section 33 makes no such application, and it is natural to assume, therefore, that Congress did not intend to extend its provisions to foreign ships. The object of the act was to provide for the promotion and maintenance of the American Merchant Marine (Panama R.R. Co. v.Johnson, 264 U.S. 375, p. 389), and I fail to see how the American Merchant Marine would be benefited by applying the act to the crews of foreign ships. Stewart v. Pacific Steam NavigationCo. (3 Fed. Rep. [2d] 329) did not directly decide this point. (See The Navarino, 7 Fed. Rep. [2d] 743.)

However, even though the Jones Act does not apply to foreign ships and their crews while in territorial waters, it does not follow that longshoremen now considered to be American seamen are not within the purposes of the act, even when working on ships of other nationalities.

Longshoremen have become a class by themselves. They are connected with the local port and do the work of loading and unloading of ships of all nationalities entering that port. They are seldom, if ever, employed by the ship or its owners, but are usually in the employ of a boss stevedore. Such was the case here. Resigno was employed by F. Jarka Co., Inc. This was a corporation doing stevedore business. Resigno had no relations whatever with the ship. It did not employ him and owed him none of the duties arising out of the relationship of master and servant. F. Jarka Co., Inc., was the employer, and owed him the duties imposed by the common law upon masters. For a violation of those duties the ship owners would not be liable. (TheAuchenarden, 100 Fed. Rep. 895; West India P.S.S. Co., Ltd., v. Weibel, 113 Fed. Rep. 169; 51 C.C.A. 116; Imbrovek v.Hamburg-American Steam Packet Co., 190 Fed. Rep. 229; Dobrin v. Mallory S.S. Co., 298 Fed. Rep. 349, 352.) The longshoremen thus employed by a stevedore may work on many ships in the course of a day. Would he change his nationality every time to that of the ship on which he happened to be working? Such a statement strikes us at once as unreasonable. In fact he is not a seaman, but merely classed as such to come within the benefits of the Jones Act. Resigno was a resident of New Jersey, worked in New Jersey, and was employed by a domestic corporation doing stevedoring work. He never formed or became part of the crew of any ship, nor was he at the time in question employed by the ship or its owners. That he was classed as a seaman was due entirely to the intention of Congress as read into this provision of section 33, passed for the purpose of advancing the interests of the merchant marine and to benefit American seamen. His work was so closely connected with shipping and became so necessary to the loading and unloading of vessels that an act passed in the interests of American seamen could hardly have been intended to exclude him. This is the ruling in the Haverty case (International Stevedoring Co. v. Haverty, 272 U.S. 50). When Mr. Justice HOLMES writes: "It is true that for most purposes, as the word is commonly used, stevedores are not `seamen.' But words are flexible," this is merely the justice's stylistic way of saying that the act of June 5, 1920, was intended to include longshoremen among the class to be benefited by the act. The work of longshoremen was described in Atlantic Transport Co. v.Imbrovek (234 U.S. 52, 62) as follows: "Formerly the work was done by the ship's crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has became a specialized service devolving upon aclass `as clearly identified with maritime affairs as are the mariners.'" This class of specialized workers connected with maritime service is to be covered by the act of 1920 and included within its provisions; not merely those few members of the class who happen for the time being to be working upon American ships. Stevedores and longshoremen would receive very little benefit from this act of Congress were it so limited. Unless the act has this general application, a shift of a gang of longshoremen from a ship on one side of a dock to a ship on the other side, might also shift the law of responsibility. Did Congress intend to make the law of responsibility for this class of workmen, or did it intend to leave it to these toilers by hand to select that law? The question must answer itself.

This application of the act of June 5, 1920, has been made inZarowitch v. F. Jarka Co., Inc. (21 Fed. Rep. [2d] 187) where Judge SHEPPARD said: "There was no privity between the ship and plaintiff, who was merely a harbor worker, in the service at the time of the Jarka Company, and it would seem a far cry, in view of these facts, to classify the plaintiff as a foreign seaman. The provisions of the Jones (Merchant Marine) Act, extending the rights and remedies applicable to seamen to stevedores, did not invest the latter with the character of seamen, but the statutes by judicial interpretation have been held to include marine workers, and the mere incident of the locus in quo of the work performed, though the test of admiralty jurisdiction in tort, does not change the status of such employee from stevedore to seaman." This was followed by Judge MOSCOWITZ in Mahoney v.International Elevating Co., Inc., in the District Court for the Eastern District of New York, November, 1927 (not yet reported), and by the Appellate Division, second department, inMuti v. Hoey, decided Nov. 4, 1927, and reported in 224 N.Y. Supp. 662. In Clark v. Montezuma Transportation Co., Ltd. (217 App. Div. 172), upon which so much stress is made, the plaintiff was part of the ship's crew and was employed by the ship. He ceased for the time being to be an American seaman. (See, also, the reasoning in Rainey v. New York P.S.S. Co., 216 Fed. Rep. 449.)

In behalf of the respondent, the suggestion has been made that we are forced to narrow the application of this act to longshoremen working on American vessels, by reason of the section of the law relating to merchant seamen containing definitions, schedule and tables found in section 713 of chapter 18, title 46, volume 3, Mason's United States Code, Ann., 1926, p. 3279. It reads as follows: "Definitions, schedule, and tables — In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the `master' thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a `seaman;' and the term `vessel' shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term `owner' shall be taken and understood to comprehend all the several persons, if more than one, to whom the vessel shall belong."

I do not read this section as containing any such limitation. The purpose was expansion, not limitation. It intended to include in the word "seaman" all those working on board an American ship who might not ordinarily be classed as seamen, such for illustration as an orchestra owner. (The Sea Lark, 14 Fed. Rep. [2d] 201, and employments there cited.) It did not, however, necessarily exclude or intend to exclude all others from being American seamen. A sailor salvaging a foreign ship in domestic waters would not cease to be, I take it, when aboard such ship, an American seaman entitled to the benefits of the act. A longshoreman, now classed as an American seaman, does not lose the benefits of this act because he happens to be working for a few hours upon a German instead of an American ship. The act was for the benefit of the seamen, not solely for the benefit of the ship or the ship owners.

This act of June 5, 1920, about which we are writing, section 33, gives to the personal representative of any seaman whose death has been caused by a personal injury, an action for damages at law, with the right of trial by jury. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides, or in which his particular office is located. That such provisions did not exclude the jurisdiction of the Supreme Court of this State in a proper case, see Patrone v.Howlett (237 N.Y. 394).

If the above reasons be sound, it follows that the judgments below should be reversed, and the motion for judgment on the pleading be denied, with costs in all courts.

POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CARDOZO, Ch. J.; CRANE, J., concurs in result in separate opinion.

Judgments reversed, etc.