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

Plaintiff, an administrator, brings this action against F. Jarka Company, Inc., a corporation carrying on the business of master stevedores, to recover damages for the death of Anthony Resigno, his son. Anthony Resigno, a stevedore employed by the defendant, was working, when his injuries were suffered, on the steamship Hannover in navigable waters at Hoboken, New Jersey. The steamship Hannover is owned by the North German Lloyd, and flies the flag of Germany. Plaintiff alleges that the Jarka Company, the employer, was negligent in omitting to provide his son with a safe place of work and with competent fellow-servants as well as in other particulars. The employer moves to dismiss the complaint under Civil Practice Rule 107, subdivision 2, upon the ground that the Workmen's Compensation Act of New Jersey supplies an exclusive remedy. The plaintiff founds his right of action, first, upon the act of Congress, commonly known as the Jones Act (Act of June 5, 1920, 41 Stat., c. 250, pp. 988, 1007, § 33), and if that be deemed inapplicable, upon a statute of New Jersey, adopted in 1848, awarding the remedy of damages where negligence results in death.

(1) "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." (3 Mason's U.S. Code, p. 3273, § 688.)

The foregoing section (33) is part of a statute entitled "An Act to provide for the promotion and maintenance of the American Merchant Marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes." Another section (39) is to the effect that the act "may be cited as the Merchant Marine Act, 1920."

Section 33, above quoted, is an amendment of section 20 of an act of March 4, 1915 (38 Stat., c. 153, p. 1164; Panama R.R.Co. v. Johnson, 264 U.S. 375, 389). The act last mentioned is entitled "An act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea." It amends divers provisions of the United States Revised Statutes, some of which are again amended by the act of 1920, and also divers provisions of the act of December 21, 1898, entitled "An act to amend the laws relating to American Seamen, for the protection of such seamen, and to promote commerce." It includes a new section, numbered 20 (the parent of the present § 33) which provides "that in any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be held to be fellow-servants with those under their authority."

We hold that section 33 of the Merchant Marine Act of 1920, like its parent, section 20 of the act of 1915, is to be limited to seamen at work upon domestic vessels. We do not doubt the power of Congress to give a broader remedy. Irrespective of the nationality of the vessel, the remedy may be extended to any one who is injured within the territory of our waters. We are unable to convince ourselves that the power has been exercised. The section now before us is to be read in the setting of other acts and sections. So read, it is not susceptible of extension to any vessels but our own. As to these it applies both at home and on the seas. At home and on the seas they are subject to the power of our government. No such range of power exists in respect of foreign vessels. Power as to these is territorial and local. Congress did not intend to give a remedy for injuries suffered on the high seas aboard a vessel of another flag (Jackson v. S.S.Archemedes, 275 U.S. 463; American Banana Co. v. United FruitCo., 213 U.S. 347, 357). We see no token of an intention to change the class of vessels with changes of locality. The act, when read in its setting, is true to its title, wherein its primary purpose is defined as the promotion and maintenance of the American Merchant Marine (cf. Patterson v. Bark Eudora,190 U.S. 169, 172). It is not to be extended by words of general application to shipping not our own (cf. The Pinar Del Rio,16 Fed. Rep. [2d] 984; affd. by the U.S.S.C. sub nom. Plamals v.S.S. Pinar Del Rio, 277 U.S. 151, without passing on this question; The Falco, 20 Fed. Rep. [2d] 362, 364).

A reading of related sections reinforces this conclusion. When foreign vessels are brought within the range of their provisions, the extension is express. There is no resort to doubtful inference. This is true of the Revised Statutes (see, e.g., §§ 4510, 4530, 4607, 4612; The Elswick Tower, 241 Fed. Rep. 706). It is true of the act of 1915 (see, e.g., §§ 14, 16). It is true of the act of 1920 (see, e.g., § 30, subsection P; §§ 31, 32, 34). Section 31 makes provision for the payment of part of the wages earned by seamen on board a vessel of the United States at ports where the vessel arrives. There is express statement 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." The debates in the Congressional Record quoted in the briefs of counsel have relation to this section. They do not touch the case at hand. Section 32 makes it unlawful to pay wages in advance. Again there is provision that the section shall apply to foreign vessels in our waters (Jackson v. S.S. Archimedes, supra). Next in order is section 33, the one before us for construction; it significantly omits an equivalent extension. "A few words would have stated that intention, not leaving such an important regulation to be gathered from implication" (Jackson v. S.S.Archimedes, supra, quoting Sandberg v. McDonald,248 U.S. 185). Congress had no difficulty in making its meaning plain when extension was desired. Its silence is the more telling when contrasted with its utterance.

Another signpost of intention is yet to be considered. As if to clinch the meaning, the chapter of the United States Code embodying the statutes in respect of merchant seamen ends with a section which has the label "definitions." "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'" (U.S. Code, § 713, c. 18, title 46; formerly U.S.R.S. § 4612). We cannot read this provision except as a statement that the intention of the Congress is to deal with domestic vessels and with those who work aboard them (The Elswick Tower, supra, and cases there cited). We do not ignore the plaintiff's argument that section 713 of the United States Code, being substantially a re-enactment of United States Revised Statutes, section 4612, is to be limited to those sections of the chapter which were contained in the Revised Statutes before they were gathered into the Code (cf. Mason's U.S. Code, vol. 1, p. 1). Of these, the present section (§ 33 of the act of 1920, now § 688 of the Code) is not one. Even if this be so, the definition has significance. The act of 1920 did amend many provisions of the Revised Statutes, as also did its parent, the act of 1915. The provisions so amended are cognate in spirit and effect to the section now before us. We impute to Congress a willingness to mask its true intentions if we say that the acts of 1915 and 1920 were framed throughout their main provisions in subjection to the statutory definitions of "master" and "seaman," but that a single section was expected without hint of such a purpose to bear a broader meaning. The conclusion is unreasonable that the lawmakers, designing an extension, would have left us thus to struggle with silence and obscurity. A new basis of liability, a new principle of jurisdiction, will not be held to have been interjected without warning or by uncertain implication. If considerations of convenience or policy can be marshaled in aid of a contrary conclusion, there are none of them so clear and unequivocal as to have controlling value. The development of our merchant marine requires, it is said, that foreign and domestic owners compete on a basis of equality. Equality is impracticable in respect of this provision, however we construe it, for jurisdiction is lacking to define the law of remedies for foreign vessels on the seas. In the long run, the development of our merchant marine may be fostered rather than impeded by holding out to seamen employed upon our ships the inducement of a protection withheld by our competitors. The appraisal of such tendencies is matter for the lawmakers. "That which in its immediacy is a discouragement may be part of an encouragement when seen in its organic connection with the whole" (HOLMES, J., in Compania General de Tabacos de Filipinas v.Collector of Internal Revenue, 275 U.S. 87, 100). We see no reason for a departure from the definitions of a glossary embodied in related statutes and framed for the very purpose of helping to stabilize construction.

The court is unanimous in its holding that seamen in the strict or proper sense are without the purview of the act when working upon foreign vessels. Whatever division there is among us has its origin in a supposed distinction between the remedy available to such seamen and that available to stevedores. The suggestion is that in cases of the latter order, the nationality of the vessel is to be rejected as a test. The judgment of the court is that the test does not vary with the nature of the service. Under the ruling of the Supreme Court (International Stevedoring Co. v.Haverty, 272 U.S. 50), a stevedore is in as good a position as if he were a seaman proper. We are unable to satisfy ourselves that under that decision, or by force of any consequences legitimately flowing from it, his position is even better. The fact is recalled to us in Atlantic Transport Co. v. Imbrovek (234 U.S. 52, 62), that in bygone days the work of loading and unloading was done by members of the crew. We think the effect of InternationalStevedoring Co. v. Haverty is merely to put a stevedore on the same footing as the crew for the purpose of applying the statutory remedy. True, indeed, it is that the remedies available to a stevedore may thus vary from day to day, and even from hour to hour, with the location of his labor. Distinctions of that order are not unknown to the law. They have been made familiar by rulings under the Workmen's Compensation Acts by which a longshoreman is given a remedy if working on a boat and denied the same remedy if working on a dock (State IndustrialCommission v. Nordenholt Corp., 259 U.S. 263). So under the Employers' Liability Act of Congress. The servant gains a remedy or loses one according to the particular service he is rendering at the very moment of the injury (Chicago, B. Q.R.R. Co. v.Harrington, 241 U.S. 177). The incongruity is no greater here. Congress did not mean that if a stevedore and a member of a crew were injured on the same vessel as a result of the same casualty, the stevedore should have a remedy and the seaman none. The act was intended to apply to both or neither.

(2) The Federal act failing, there remains the statute of New Jersey which gives a cause of action for damages to appointed representatives where negligence results in death.

The Appellate Division held that the remedy under that act had been supplanted by the adoption in New Jersey of a Workmen's Compensation Act, awarding the usual system of insurance to workmen subject to its provisions. We think the holding is erroneous. Resigno was injured while engaged in maritime work upon navigable waters. There was no power in the Legislature of New Jersey to substitute a system of workmen's compensation for the right of action for damages that was his under maritime law. There was a like defect of power to substitute such a system for the then existing right of action for the use of his survivors. The point was expressly ruled inWarren v. Morse Dry Dock Repair Co. (235 N.Y. 445;262 U.S. 756); cf. Western Fuel Co. v. Garcia (257 U.S. 233, 240);Southern Pacific Co. v. Jensen (244 U.S. 205); KnickerbockerIce Co. v. Stewart (253 U.S. 149); Washington v. Dawson Co. (264 U.S. 219). A different question would be here if the Legislature had attempted to repeal the death statute altogether. What it attempted was "not to abolish every remedy, but to substitute one remedy for another" (Warren v. Morse Dry Dock Repair Co., supra). "To the extent that the substitution of a new remedy is ineffective, the old one survives."

Since the wrong was done upon the waters, the circumstance is unimportant that the death which followed was upon the land (Kursa v. Overseas Shipping Co., Inc., 217 App. Div. 775;U.S. Shipping Bd. Corp. v. Greenwald, 16 Fed. Rep. [2nd] 948.)

The judgment of the Appellate Division and that of the Special Term should be reversed, and the motion denied, with costs in all courts.