Claim of Berg v. Great Lakes Dredge & Dock Co. , 158 N.Y.S. 718 ( 1916 )

Cochrane, J.:

The facts in this case as found by the Commission are as follows: “On April 22, 1915, the day when Albert Berg received the ' injuries which resulted in his death, he was employed as a craneman on a dredge located in the Hudson ■ River, at Troy, New York, which dredge was owned and operated by the Great Lakes Dredge & Dock Company, a corporation engaged in the business of dredging the Hudson River at that place. The dredge worked continuously twenty-four hours a day, and Berg and another craneman usually worked on twelve-hour shifts. Under his contract of employment, Berg was furnished living quarters on the dredge and did live there. The employer furnished a boat to take the men to and from the dredge and from the shore. During the afternoon of April 21st, 1915, Berg obtained permission from the man in charge of the dredge to go ashore to have a check cashed, and went ashore in the company’s boat. At about 4 o’clock in the morning of April 22nd, Berg hailed the dredge from the dock along the shore, which was the customary place for the men to come to take the boat out to the dredge. A boat was sent from the dredge to the shore, but the person rowing the boat failed to find Berg and started to return to the dredge, when a call was again heard from the dock, and the boat returned to the dock. The man rowing the boat then noticed Berg in the water going under a drillboat, which was located near by, and a tug of the employer attempted to rescue him without avail. Bérg was drowned and his body was recovered from the river two days later at about a mile downstream.”

It further appears by the uncontradicted testimony pf disinterested witnesses that Berg was intoxicated. -He had been spending the night in a saloon in Troy from about eight-thirty o’clock in the evening until three-thirty o’clock in the morning or half an hour before he fell in the river. The last person who saw him before the accident, so far as the evidence discloses, states that he was then at the corner of River and State streets, and in the language of the witness, “staggering drunk,” just having left the saloon where he had been since early in the previous evening. But the Commission has found that the accident “ was not occasioned solely by the intoxication of the injured employee while on duty.”

We think, however, that the injury did not arise out of and in the course of the employment of the deceased (Workmen’s Compensation Law, § 10), and that the facts as found by the Commission and the uncontradicted evidence conclusively overcome the presumption created by section 21 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), that the claim comes within the provisions of that law. Berg went ashore on the previous evening entirely for purposes of his own. ¡No duty to his employer required him to leave the dredge or to remain away therefrom. His only business was to have a check cashed for himself, and the evidence is clear and undisputed that he passed the greater part of the night in personal amusement and entertainment. If he had fallen over-hoard from the boat which was conveying him from the dock to the dredge a different question would be presented. But he fell from the dock when there was no boat present, and he was consequently not even attempting to get aboard the boat of his employer which was used to convey the workmen from the dock to the dredge. The dock or place where he fell into the water was not owned or controlled by the employer. In no sense, therefore, had Berg reached the premises of his employer. The case is no different in principle from what it would be if Berg had received an injury in the streets of the city on his way to the river just before he fell therein. It does not change the case that he lived on the dredge. The controlling fact is that he had been ashore solely for purposes of his own and lost his life before he returned to his place of employment or to the premises of his employer and before he had gained access to the boat which was to carry him from the dock "to the dredge.

This case is essentially different from the English case of Moore v. Manchester Liners (3 B. W. C. C. 527), relied on by the learned Attorney-General. In that case a seaman went ashore for the purpose of obtaining for himself necessaries not provided by the owners of the ship. On returning to the ship he fell from a ladder which was the only means of access from the dock to the ship. It was held by the House of Lords that the accident arose out of and in the course of his employment. The present case would be more analogous if Berg had fallen from the small boat used by his employer to give him access from the dock to the dredge. But, as we have seen, that boat was not present and he was not, therefore, even attempting to get aboard the same. Furthermore in the case cited the employment of the injured workman was continuous and not intermittent and he was deemed in a certain sense to have been about his master’s business in obtaining for himself necessary articles not provided by his employers. In the present case Berg’s service was intermittent and would not begin until six o’clock in the morning and in no proper sense can it be considered that he was promoting or accomplishing his master’s business while he was ashore.

The award should be reversed and the proceeding remitted to the Commission for further action.

All concurred.

Award reversed and matter remitted to the Commission for further action.