Citation Numbers: 199 N.E. 16, 269 N.Y. 93
Judges: HUBBS, J.
Filed Date: 11/19/1935
Status: Precedential
Modified Date: 1/12/2023
In September of 1932 the P.J. Carlin Construction Company, of 405 Madison avenue, New York city, had a contract with the city of New York for the construction work on Riker's Island, State of New York. The island is owned by the city of New York and used for a penal institution — a penitentiary — and the building operations consisted of the erecting and equipping another penitentiary building and a power house. The island was a mile or two from the shore, the municipality running a ferry which was used almost entirely for transporting prisoners. It was necessary for the Carlin Company to provide transportation facilities for its workmen, as its contract contained this provision: "Each Contractor shall investigate the existing means of transportation to and from Rikers Island. The City shall not be held responsible for providing regular ferry service. The Contractor must assume responsibility for the transportation from Mainland to island of men and materials for all work done under this contract."
The Carlin Company made arrangements with one George I. Forsythe, the owner of a steamboat, for this transportation. The steamer was called the Observation and was capable of carrying two hundred and fifty passengers. It was not used exclusively for Carlin's men. Carlin's arrangement with Forsythe was embodied in a letter, June 26, 1931, and orally accepted by Captain Forsythe. In part it reads as follows: "You are to operate the Steamer `Observation,' which is warranted by you to be officially rated at 250 capacity by local *Page 105 steamboat inspectors, Custom House, N.Y., full crewed, full covered with adequate public liability and workmen's compensation insurance, upon a schedule furnished to you by our Field Office, and calling for operation five days in the week only, from Monday to Friday inclusive.
"You are to be compensated therefor by collecting fares from the men at the rate of 10c a round trip. In the event that your fares do not reach the sum of $60.00 upon any given day, we shall reimburse you for the difference. * * *
"We understand that your boat is warranted to be in first class condition, with all necessary permits to operate in this service."
The claimant Edward Heaney, who resided in the city of New York, was one of Carlin's workmen, and on the 9th day of September, 1932, boarded the steamboat Observation at One Hundred and Thirty-sixth street for the purpose of going to work on Riker's Island. While the steamboat was in operation and en route to the island, there was a terrific explosion — it was blown to bits, many passengers losing their lives, and this claimant, with others, being injured.
An award has been made to Heaney under the Workmen's Compensation Law of this State which has been unanimously affirmed by the Appellate Division, an appeal being allowed by this court. The Commission made this finding: "At the time Edward Heaney sustained the accidental injuries herein above referred to, the status of the claimant and the employer herein was a matter of local concern, was subject to the regulation of the State and in no way worked prejudice to any characteristic feature of the General Maritime Law." Although this is stated as a finding of fact it is a conclusion of law drawn from the facts, with which we cannot agree.
That the explosion of a passenger steamer while in operation upon the seas, or, to be more exact, the East river as it opens into Long Island sound, was a maritime *Page 106
matter or maritime tort is self evident. That Heaney would have an action in admiralty against the steamer for any negligence causing the explosion or for any unseaworthiness must be admitted. Such action would also lie in admiralty or at common law against the owner. Although most of the cases in the books deal with sailors or workmen on ships, maritime law applies as well to passengers. (1 Benedict on Admiralty [5th ed.], pp. 99, 100; The Moses Taylor, 71 U.S. [4 Wall.] 411; Chicago D. G.B. Transit Co. v. Moore, 259 Fed. Rep. 490; certiorari denied,
What is the effect of our Workmen's Compensation Law upon the remedy in admiralty? By section 29 of our Workmen's Compensation Law when the employee accepts compensation his cause of action is assigned to the insurance carrier. This is a modification of all rights existing at common law. No tort action could be assigned. But we go further, for the cause of action which passes to the insurance company is prosecuted not on the basis of subrogation solely, but for the benefit of the insurance carrier. (Tracy v.American Mutual Liability Ins. Co.,
A new cause of action is also created by the New York statute which never before existed either at common law or in admiralty. By section 15 it is provided that the insurance carrier shall pay the sum of one thousand dollars into certain special funds in every case in which the person killed through negligence shall have left no person entitled to compensation. For this amount thus paid the insurance carrier is given a cause of action against the negligent third party. We held in Phoenix Ind. Co.
v. Staten Island R.T. Ry. Co. (
Admiralty recognizes no such causes of action. They are peculiar to New York State and may vary with the enactments of every State Legislature. True, these provisions are not applicable here for the reason that Heaney is alive, not dead, but we are dealing with the application or the possible application of the Workmen's Compensation Law to an admiralty tort wherein a passenger on a steamer has been injured or killed. The very nature of the remedy provided by this State legislation shows on its face that it seeks to supplement or add to the admiralty law when a cause of action assigned to an insurance carrier is attempted to be prosecuted in admiralty. InTravelers' Ins. Co. v. Prince Line, Ltd. (262 Fed. Rep. 841), a District Court decision, MAYER, J., held that admiralty would not recognize the assignability of a tort action, and that our Workmen's Compensation Law did not apply to admiralty torts. InKnickerbocker Ice Co. v. Stewart (
Whether Heaney has a cause of action for negligence in admiralty is beside the point. This all depends upon evidence as to the nature of the explosion. The fact remains that the explosion on this ship at sea was a matter of maritime jurisdiction, the common law remedies being preserved. Heaney has no claim, therefore, under the Workmen's Compensation Law of the State.
The United States Supreme Court, in Spencer Kellogg Sons,Inc., v. Hicks (
If the rights and obligations of Heaney and Forsythe, the owner of the Observation which blew up, depend upon and arise out of the maritime law, what becomes of those provisions of our State law which assign Heaney's cause of action to an insurance carrier and may in a proper case give the insurance carrier a claim against Forsythe for a thousand dollars contribution to a State fund? Heaney's remedy is solely in admiralty or at common law as our Workmen's Compensation Law does not apply to this unfortunate occurrence.
The authorities relied upon by the respondents, such asMillers' Ind. Underwriters v. Braud (
Since writing the above there has come to my attention the case of Kenward v. The "Admiral Peoples" (
"The basic fact in the instant case is that the gangplank was a part of the vessel. It was a part of the vessel's equipment which was placed in position to enable its passengers to reach the shore."
The order of the Appellate Division and that of the Industrial Board should be reversed and the claim dismissed, with costs in all courts.
CROUCH, LOUGHRAN and FINCH, JJ., concur with HUBBS, J.; CRANE, Ch. J., dissents in opinion in which O'BRIEN, J., concurs, and LEHMAN, J., dissents also.
Order affirmed.
Millers' Indemnity Underwriters v. Braud , 46 S. Ct. 194 ( 1926 )
Sultan Railway & Timber Co. v. Department of Labor & ... , 48 S. Ct. 505 ( 1928 )
Knickerbocker Ice Co. v. Stewart , 40 S. Ct. 438 ( 1920 )
Spencer Kellogg & Sons, Inc. v. Hicks , 52 S. Ct. 450 ( 1932 )
The Admiral Peoples , 55 S. Ct. 885 ( 1935 )