On November 18, 1920, the vessel Norman Bridge was undergoing repairs in the defendant's drydock, afloat in navigable waters. The plaintiff, who was employed by the defendant as a burner, was sent aboard the vessel to burn the bolts and metal plates. While so engaged, he suffered injuries, which have been found by the jury to be due to the defendant's negligence. The unanimous affirmance at the Appellate Division requires us to presume that the evidence sustains the verdict (Constitution, art. VI, § 9; Civil Practice Act, § 589, subd. 3). The plaintiff asserts that the tort is within the jurisdiction of the admiralty, and that the common-law remedy, reserved to him by Congress (Judicial Code, §§ 24, 256), is unimpaired by local statutes. The defendant asserts that the nature of the employment and the locus of the wrong are such that the Workmen's Compensation Law may be applied without *Page 442 impairing the uniformity of the maritime law, and hence that the remedy under the statute must be held to be exclusive.
The jurisdiction of admiralty over contracts is governed by the nature of the transaction. The jurisdiction of admiralty over torts is governed by locality (Grant-Smith-Porter Co. v.Rohde, 257 U.S. 469, 476; State Industrial Comm. v.Nordenholt, 259 U.S. 567). This action being in tort, the plaintiff brings his case within the maritime law if he satisfies one of the two tests of jurisdiction, the test of locality. He goes farther, however, and satisfies them both. A contract for the repair of a ship, as distinguished from one for its construction, is a maritime contract (The Robert W. Parsons,191 U.S. 17; Thames Towboat Co. v. The Schooner FrancisMcDonald, 254 U.S. 242). A vessel in a drydock, which is afloat in navigable waters, is itself in those waters as truly as if moored to a wharf or beside a pier (The Jefferson,215 U.S. 130, 142, 143; The Robert W. Parsons, 191 U.S. 17, 33; TheAnglo-Patagonian, 235 Fed. Rep. 92). There is a concurrence of the two elements of maritime jurisdiction. A workmen's compensation statute, not founded upon consent, but acting ininvitum, will not displace the rights and remedies established by the law of the sea (Southern Pacific Co. v. Jensen,244 U.S. 205; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149;State Industrial Commission v. Nordenholt, supra; Matter ofRed Cross Line v. Atlantic Fruit Co., 233 N.Y. 373).
The judgment of the Supreme Court in Grant-Smith-Porter Co. v. Rohde (257 U.S. 469) is pressed upon us as supporting a different rule, and limiting materially the scope of earlier judgments. We cannot give it that effect. A choice was there involved between the application of the maritime law and that of the Workmen's Compensation Act of Oregon. The injured man was not engaged in the rendition of a maritime service. He was engaged in the construction of a new ship, not in *Page 443 the repair of an old one (257 U.S. at p. 476). The Oregon statute is not compulsory, but is founded upon election; and employer and employee had elected to submit to its provisions (257 U.S. at pp. 474, 476). The Supreme Court held that admiralty had jurisdiction of the tort since the workman was injured while in navigable waters. It held, however, that in the special conditions there presented the uniformity of the maritime law would not be substantially impaired by upholding a contract for the acceptance of another remedy. "The parties contracted with reference to the state statutes," and "their rights and liabilities had no direct relation to navigation" (257 U.S. at p. 477).
Two elements of distinction were thus relied upon as justifying an exception to the general rule. Neither of those elements is present in the case at bar. The service here was maritime. The remedy under the New York statute unlike the remedy under the Oregon one (if we exclude from consideration a recent amendment, § 113, as amended by L. 1922, ch. 615) is independent of agreement (Matter of Smith v. Heine Boiler Co., 224 N.Y. 9,11). We think the decision in Grant-Smith-Porter Co. v. Rohde (supra) is to be limited to the same or kindred situations. It does not mean that the court in every case is to weigh the comparative merits of uniformity and diversity, and decide for or against the statute as the balance may incline to one side or the other. That would be to introduce an element of uncertainty, productive of litigation and hardship almost without limit. Neither workman nor employer would know his rights and remedies until the final word had been spoken by the last appellate court. Too often the Statute of Limitations would then bar the substitution of the right choice for the wrong one. We find no distinction between the plaintiff's situation and that of Jensen and Stewart, longshoremen working on a vessel, who were held within the protection of the maritime law (244 U.S. 205; *Page 444 253 id. 149). The supremacy of that law, overriding the local statute, gave a remedy there. It gives, and for like reasons, a remedy here.
Since this action was tried, Congress has passed the act of June 10, 1922, amending sections 24 and 256 of the Judicial Code. Whether these amendments have obviated the difficulties considered in Knickerbocker Ice Co. v. Stewart (supra) and are effective to give a remedy under the Workmen's Compensation Acts to claimants other than the master or members of the crew when injured on a vessel in navigable waters, is a question not before us.
Other objections urged by the defendant can be briefly answered.
The burden of proving contributory negligence was on the defendant. This is so whether we apply the maritime law (CentralVermont R.R. Co. v. White, 238 U.S. 507, 512; Inland Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 557) or the law of the state (Labor Law, § 202-a; Hall v. N.Y. Telephone Co.,220 N.Y. 299).
There was some confusion in the definition of assumption of risk. We may doubt whether the inaccuracy was adequately pointed out by exception. If the defendant has the benefit of the doubt, the error is one that cannot fairly be held to have affected the result (Civil Practice Act, § 105).
The judgment should be affirmed with costs.
HISCOCK, Ch. J., HOGAN, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; POUND, J., absent.
Judgment affirmed, etc. *Page 445