Claimant, employed in the construction of a pier, was injured while standing on a floating raft in navigable waters. *Page 294
In such circumstances, the maritime law must fix his rights and remedies, for the locus of the accident was maritime, though the service was not (Grant-Smith-Porter Ship Co. v. Rohde,257 U.S. 469; Gonsalves v. Morse Dry Dock Repair Co.,266 U.S. 171; Danielsen v. Morse Dry Dock Repair Co., 235 N.Y. 439; Butler v. Robbins Dry Dock Repair Co., 240 N.Y. 23).
A different question would be here if the Workmen's Compensation Act, as it stood at the time of the injury, had been elective rather than compulsory (Grant-Smith-Porter Ship Co. v.Rohde, supra; Danielsen v. Morse Dry Dock Repair Co.,supra), or if the employer and the insurance carrier, as well as the claimant, had chosen under a later amendment (Workmen's Compensation Act, § 113, as amended by L. 1922, ch. 615) to waive their admiralty remedies. The act was ineffective, in so far as it was compulsory, to displace the law of the sea; and employer and carrier, refusing to take advantage of the optional element brought into it by amendment, insist upon their maritime rights.
We do not stop to inquire whether the raft is to be classified as a boat, for however that question were to be answered, the territorial basis of jurisdiction would remain (Gonsalves v.Morse Dry Dock Repair Co., supra).
The order of the Appellate Division and the determination of the State Industrial Board should be reversed, and the claim dismissed, with costs against the said Board in all courts.
HISCOCK, Ch. J., McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; POUND, J., absent.
Order reversed, etc. *Page 295