Plaintiff was injured on a vessel while working as a stevedore in navigable waters. He complains that the negligence of the defendant, his employer, was the cause of his misfortune. The question is whether by contract or election following the injury the remedy under the maritime law has been displaced, and a new remedy established. *Page 135
On the day of the accident, June 29, 1922, plaintiff gave written notice of his injury to the Industrial Commissioner and filed a claim for compensation for the resulting disability. On August 11, 1922, there was filed with the Commissioner a notice by the employer that advance payments had begun. The only effect of that notice was to give the employer the right to credit such payments on account of an award of compensation if one should afterwards be made (Workmen's Comp. Law, § 20-a, as then in force; Cons. Laws, ch. 67). On December 14, 1922, there was an award by the Industrial Board of $360 for disability to that date, with a continuance of the proceeding. On May 22, 1923, there was an award of $240, the proceeding being again continued. Both these awards were paid by the employer and accepted by the plaintiff. On June 19, 1923, the proceeding was placed on the final adjustment calendar for June 28, and on claimant's failure to appear was adjourned to a later date, and then held in abeyance. There has been no final award for the entire disability. On August 22, 1923, this action was begun.
We held in Brassel v. Electric Welding Co. (239 N.Y. 78) that a final award when accepted by the claimant is an accord and satisfaction, and that causes of action for damages growing out of the same injuries, though based upon the maritime law, must be held to be extinguished. On the other hand, we held in Larscy v. Hogan Sons, Inc. (239 N.Y. 298), that acceptance of an award not final is at most an accord, and not a satisfaction, with the result that the cause of action for damages continues unextinguished, though subject to a set off to the extent of partial payments (Williston, Contracts, § 1843, and cases cited;Reilly v. Barrett, 220 N.Y. 170).
The decision in Larscy v. Hogan Sons, Inc., is decisive of the case at bar, unless an amendment of the statute, which took effect June 1, 1922, after Larscy had been injured, has changed the previously existing rule. By *Page 136 Laws of 1922, chapter 615, section 113 of the Workmen's Compensation Law was amended so as to provide that "awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter."
We find it unnecessary to determine whether waiver in accordance with this section would supersede the remedy in admiralty. Construing our own statute, we hold that the waiver which it contemplates has never been announced. Claimant, employer and insurance carrier must unite in foregoing their admiralty remedies before the statute will be operative, if its validity be assumed. Nothing of the kind is proved. We put aside the question whether waiver by the claimant within the meaning of this section is sufficiently established by the election to file a claim, unaccompanied by express disclaimer of admiralty remedies. Even if this be assumed, the defendant is not helped unless employer and insurance carrier by some definitive expression have renounced their remedies as well. We see no basis for a finding that renunciation was effective when this action was begun. The employer had paid provisional or interlocutory awards for temporary disability. It may have been moved to this course by charity or by indifference or by dislike of litigation. Its acquiescence would not have barred it from appearing at the final hearing and contesting the claim for any sufficient cause including lack of jurisdiction. Indeed, in its answer to this complaint, it states that it acted under mistake of fact and law in paying what it did, and asks by way of counterclaim that the moneys be repaid. If there has been no definitive election by the employer, still less has there *Page 137 been any by the carrier. There is no evidence that the carrier supplied the moneys whereby the provisional awards were paid. There is none that it assumed liability by the terms of its policy for accidents subject to the maritime law. We think it is unimportant that since this action was begun, the defendant by answer and affidavit has invoked the protection of the statutory remedy. There is no need to dwell upon the point that it speaks even now for itself and no one else. Aside from this objection, the waiver is ineffective to destroy the cause of action unless definitively announced before a summons has been served. At the beginning of this action the Board was without jurisdiction to proceed to an award, for the conditions had not been satisfied upon which jurisdiction was dependent (Workmen's Comp. Law, § 113). The Legislature did not mean, even if it could constitutionally enact, that a claimant should be left with his remedies in indefinite suspense. Waiver here as often is a term of equivocal significance (Beatty v. Guggenheim ExplorationCo., 225 N.Y. 380, 389). In the setting of the context, it imports a concurrent evidence of intention having the force of an agreement to forego one set of remedies and abide by another. Until that intention is announced by all who must participate, a waiver by any one of them is inchoate and revocable. If this were not so, a claimant would find that he had barred himself from a remedy in the courts by a waiver ineffective to give jurisdiction to the Board. Election is inoperative when the alternative remedy selected is one denied by law. Choice has not been made until choice has been allowed (Schenck v. State Line Telephone Co.,238 N.Y. 308, 311).
Waiver being excluded, the right established by the maritime law continues unimpaired. Maritime jurisdiction is established both by the locus of the accident (Grant Smith-Porter Co. v.Rohde, 257 U.S. 469) and by the nature of the work (GreatLakes Dredge, etc., Co. v. *Page 138 Kierejewski, 261 U.S. 479; Int. Stevedoring Co. v. Haverty,272 U.S. 50). When the first of these grounds of jurisdiction is present without the second, there is room for the contention that the Workmen's Compensation Act of the state can be applied without "material prejudice to any characteristic feature of the general maritime law" (Millers' Ind. Underwriters v. Braud,270 U.S. 59; Terry Tench Co. v. Lahti, 272 U.S. ___). When the two grounds concur, the law of the State must bend to the supreme law of the land and the power of the nation (Great LakesDredge, etc., Co. v. Kierejewski, 261 U.S. 479; Gonsalves v.Morse Dry Dock Repair Co., 266 U.S. 171).
The judgment of the Appellate Division and that of the Special Term should be reversed with costs in this court and the Appellate Division, and the motion for judgment denied with costs.