Claimant was injured by an explosion on a boat on which he was going to work. It is urged an award of compensation cannot be sustained because the maritime law applies.
In considering this case it is necessary to determine, first, whether it involves a contract matter or a tort matter and, secondly, if a contract matter, whether the contract was maritime in its nature. This is true because of the well-established rule enunciated by the Supreme Court of the United States.
"The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled." (GrantSmith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476.)
If a tort matter be involved in this proceeding then since the accident occurred upon navigable waters, it would seem that admiralty would have jurisdiction. If it were a proceeding instituted against the shipowner for damages resulting from the explosion of the ship, without doubt a tort matter would be involved. It is not, however, such a proceeding. It is against the employer and is not instituted on the theory that a tort has been committed. As was said in Matter of Doey v. Howland Co. (224 N.Y. 30, 36), "an award under the Workmen's Compensation Law is not made on the theory that a tort has been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. (Matter of Post v. Burger Gohlke, 216 N.Y. 544. ) The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the *Page 98 employee be injured, will pay to him a certain sum to compensate for the injuries sustained, or if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrong doing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment." (Cf. State Industrial Commission v.Nordenholt Corp., 259 U.S. 263, 271.)
No recovery is sought against the employer in this case because of any wrong alleged to have been done by the employer. A recovery is sought as the result of injuries for which the statute, read into the contract, gives a right to recovery.
If the question of tort be not involved, then we are confronted with the question as to whether the contract of employment is maritime in its nature. The contract of employment was for the services of the claimant in the erection of a building. It was not a contract to do work upon a vessel in navigable waters nor even to do work remotely connected with any undertaking having to do with navigation or commerce. The presence of the claimant upon the boat was a mere incident of the contract of employment, it having been found as a fact that he was on the boat as an employee of the contractor against whom the award has been made.
Even though the part of the contract of employment which brought about his presence on the boat be deemed to make the contract of employment maritime in its nature, the subject remains local in character and the applicability of the State compensation law quite possibly might be upheld in a Federal court under the exception to the general rule as to the applicability of maritime law which permits the application of a State statute where so doing will not "work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in *Page 99 its international and interstate relations." (259 U.S. 263, 274.)
The discussion of the general rules and exceptions thereto inState Industrial Commission v. Nordenholt Corp. (supra) is most illuminating and it seems to clearly point the way to the proper disposition of this case. The claimant was not a maritime worker. He was not engaged at the time he was injured directly or indirectly in any work having to do with commerce or navigation. While he was injured on a ship in navigable waters, he was not a passenger in the general sense of the word and this proceeding is not instituted on the theory of any contract for carriage between himself and the owner of the ship. Though he paid his fare it may be assumed that his compensation for the work in which he was engaged was so adjusted as indirectly to reimburse him for that expenditure. The contract of carriage was not made primarily for his benefit but under a requirement of the main contract of his employer for the transportation of his employees. By upholding the applicability of the Workmen's Compensation Law (Cons. Laws, ch. 67) under the facts in this case, no material prejudice can result to the characteristic features of the general maritime law. No effect will be had upon the established rules as to the applicability of maritime jurisdiction to questions arising between passengers and shipowners or maritime workers and the owners of ships or other employers engaged in maritime work. The matter is as much one of local concern as if the employee had been injured while at work on the building on the island. To permit claimant to succeed, it is not necessary to find any wrongdoing on the part of his employer, so that the question of the proper or improper operation of the ship is not involved. It is not necessary to rely upon any provision of the contract of carriage.
*Page 100In La Casse v. Great Lakes Engineering Works (242 Mich. 454) the court said:
"3. If an injury occurs on navigable waters and in theperformance of a maritime contract, it is certainly within the exclusive jurisdiction of admiralty unless —
"(a) the contract is of merely local concern, and
"(b) its performance has no direct effect upon navigation or commerce, and
"(c) the application of the State law `would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations.'
"4. State workmen's compensation laws, contractual in character, are applicable to maritime service on navigable waters when, and only when, the service is within exceptions (a), (b) and (c) above.
"5. If, however, the injury occurs on navigable waters, but inthe performance of a non-maritime contract, it is, at leastprima facie, local and within the operation of State laws. If there are any exceptions to this rule, they are yet to be developed" (p. 462).
This court, in Matter of Doey v. Howland Co. (supra, p. 35), a proceeding under the Workmen's Compensation Law, where an employee of a company was killed while making repairs to a ship of which it was not the owner, said: "Was Doey, at the time of his death, engaged in the performance of a maritime contract * * *. In determining whether a contract be of a maritime nature, locality is not controlling, since the true test is the subject-matter of the contract — the nature and character of the work to be done."
While the injury to the claimant Heaney occurred on navigable water, he was not at the time engaged in the performance of a maritime contract. He was engaged in the performance of a contract non-maritime in its nature and the recovery sought is "a part of the compensation agreed to be paid for the services rendered in the course of the employment." *Page 101
If the action were for wages due under the contract of employment, the Federal court would not have jurisdiction. Jurisdiction is not conferred upon that court because another part of the agreed compensation is sought to be recovered or because there chances to be an independent contract for passage with a third party or a tort liability on the part of the third party.
With this view of the applicable rule we may consider the cases which might appear to establish a contrary rule.
The first of these is Spencer Kellogg Sons, Inc., v.Hicks (285 U.S. 502, 512, 514). The workmen, employees of Kellogg Sons, in the manufacture of linseed oil at Edgewater, New Jersey, lived in New York. In order to ferry them to and from the factory, the company owned and operated the Linseed King, a gasoline launch. Those killed and injured were of three classes, regular employees of Kellogg Son in the Edgewater plant, men who had applied for work in discharging the cargo of a ship the preceding day but who had been advised to report again on the morning of the accident, and men seeking employment in answer to an advertisement. The court there held the compensation statute of the State of New Jersey inapplicable on the ground that it was incapable of enforcement by the ordinary process of any court and "is not saved to suitors from the grant of exclusive jurisdiction to the Courts of the United States of all civil cases of admiralty and maritime jurisdiction." The court said: "Kellogg Sons undertook the interstate carriage of passengers by water on a launch operated by its servants. This was a maritime matter. The ferriage was for the facilitation of the company's business and for its convenience as well as that of the employees. The injury to the passengers resulted from negligence of the company's agent in the navigation of the launch. It was a maritime tort. The rights and obligations of the parties depended on and arose out of the maritime law. A proceeding to impose liability for such a tort is a cause in admiralty * * *." *Page 102
The court further said: "Kellogg Sons sustained toward employees injured or killed the dual relationship of a carrier by water and a general employer at its Edgewater plant."
In that case the employer was the owner of the boat, undertook the interstate carriage of passengers by water on a launch operated by its servants, sustained a dual relationship to its employees of a carrier by water and a general employer, and was guilty of a maritime tort. None of these things are present in the instant case. Here, since the employer was not a carrier of passengers by water, it was not guilty of a maritime tort and the proceeding is not one to "impose liability for such a tort" as the proceeding in the Kellogg case was held to be.
In Knickerbocker Ice Co. v. Stewart (253 U.S. 149) the employee for whose death compensation was asked was employed as a barge man and was doing work of a maritime nature. There the very fact that the employee was employed as a barge man and that it was found that he was doing work of a maritime nature distinguishes that case from the one at bar.
In Southern Pacific Co. v. Jensen (244 U.S. 205) the deceased employee was engaged in driving a small electric freight truck into the steamship El Oriente where it was loaded with cargo, then driving the truck out of the vessel upon a gangway, connecting the vessel with pier 49, North river, and thence upon the pier where the lumber was unloaded from the truck. He jammed his head between the lumber and the ship, thereby breaking his neck. Compensation was awarded under the New York State statute. The court said that the work of a stevedore in which the deceased was engaged was maritime in its nature, his employment was a maritime contract and that the injuries which he received were likewise maritime. This statement of the holding of the court makes it evident that the employee there was engaged in maritime work and that the case is not authority for holding claimant in this case not entitled to compensation. *Page 103
The fact that by section 29 of the Workmen's Compensation Law the claim of an employee against a third party for tort is assigned to the carrier paying an award or the further fact that the same statute provides for assignment of a cause of action based upon a payment into the State fund in a case where a person is killed through negligence does not bar this proceeding. The right to compensation is not dependent upon the existence of a claim or cause of action against a third party. No liability on the part of the third party is created by the statute. The effect of the statute is not to guarantee collection of damages as a result of the assignment. The assigned cause may be valueless as a result of contributory negligence on the part of the injured employee (Liberty Mutual Ins. Co. v. Colon Co., 260 N.Y. 305), inability of the assignee to establish negligence on the part of the third person (Liberty Mutual Ins. Co. v. Colon Co., supra), financial irresponsibility of the third person, or that conduct tortious under the law of the forum where the compensation contract is enforceable is not tortious under the law of the forum where the accident occurred. (Travelers Ins.Co. v. Central R.R. Co., 143 Misc. Rep. 589.)
Why should it be held that the contract right is rendered unenforceable as between the parties thereto for the reason that there exists incapacity on the part of the assignee of the cause of action, based upon the possible tort liability of a third person to maintain an action thereon? To do so would defeat the main purpose of the compensation contract of which the provision for assignment is a mere incident. Regardless of the enforceability of the assigned cause, the employee parts with a valuable right. That it may prove of no value in the hands of the assignee is a matter over which the injured employee has no control.
The order should be affirmed, with costs.
A question under the Federal Constitution was presented and necessarily passed upon by this court. It *Page 104 relates to the exclusive jurisdiction of the Federal courts over admiralty cases. The claimant was injured by the explosion of a passenger steamer on the East river, New York. This court held that the Workmen's Compensation Law of the State applied, and that the Federal courts had not exclusive jurisdiction to afford relief.