Tyler v. Indust. Comm.

Ben Johnson was a fisherman in the employ of the United Fisheries Company. Under his employment it was his duty to go out upon the waters of Lake Erie in a fishing boat, assist in lifting the fish nets, take the fish therefrom, and bring them in to the fishhouse of his employer, in Sandusky, Ohio, and, while not so engaged, to work on shore at mending and tarring the twine and nets and do other work assigned to him in connection with the fishing industry. On or about October 8, 1921, in the course of such employment, he went from his employer's fishhouse in his employer's boat, the Emma R., to the fishing grounds in Lake Erie off Kelley's Island, for the purpose of lifting nets. When the boat neared its destination the sea was too rough to carry on the work. Thereupon the boat started to return to the fishhouse. When it was about a half mile from Marblehead Light, Johnson fell off the boat into the waters of Lake Erie and was drowned. The Emma R. was a trapnet boat about 30 feet long, propelled by a gasoline motor, and ordinarily required two men to navigate it. The employer had complied with the Ohio Workmen's Compensation Act (Sections 1465-37 to 1465-108, General Code). Mary Johnson, widow of the decedent, made application to the Industrial Commission of Ohio for allowance of compensation. The claim was disallowed for the reason that the decedent was engaged in a maritime pursuit at the time of his death. An appeal was taken to the court of common pleas of Ottawa county. Upon trial in that court plaintiff's petition was dismissed, and judgment was rendered in favor of the defendant, the Industrial Commission of Ohio. Thereupon the plaintiff in the court below prosecuted this proceeding in error for a reversal of the judgment.

The only question involved is whether the decedent was, at the time of his death, engaged in a maritime employment under such circumstances that his death would not be compensable under the Workmen's Compensation Law of Ohio. As a general rule, where an employe suffers injury or death in the course of his employment at work which is purely maritime in character and has a direct relation to commerce and navigation, the rights and liabilities of the parties involved are controlled by the maritime law, and such injury or death is not compensable under the Workmen's Compensation Law. State ex rel. Cleveland Engineering Const. Co. v. Duffy, 113 Ohio St. 96, 148 N.E. 572; State ex rel.Cleveland Engineering Const. Co. v. Duffy, 113 Ohio St. 579,581, 149 N.E. 870; Southern Pacific Co. v. Jensen, 244 U.S. 205,37 S. Ct., 524, 61 L. Ed., 1086, L.R.A., 1918C, 451, Ann. Cas., 1917E, 900; Great Lakes Dredge Dock Co. v. Kierejewski, 261 U.S. 479,43 S. Ct., 418, 67 L. Ed., 756; Robins Dry Dock Repair Co. v.Dahl, 266 U.S. 449, 457, 45 S. Ct., 157, 69 L. Ed., 372.

It has been held, however, that where the injury or death results from a maritime tort, to which admiralty jurisdiction would extend, except for a state compensation law, the injury or death may be compensable where the matter is one of mere local concern and its regulation by the state would work no material prejudice to any characteristic feature of the general maritime law. Under such circumstances the Workmen's Compensation Law prescribes the only remedy; its exclusive features abrogate the right to resort to the admiralty court which otherwise would exist. Millers' Indemnity Underwriters v. Braud, 270 U.S. 59,64, 65, 46 S. Ct., 194, 70 L. Ed., 470; Ind. Comm. of N.Y. v.Nordenholt Corp., 259 U.S. 263, 42 S. Ct., 473, 66 L. Ed., 933, 25 A.L.R., 1013.

In the case of Southern Pacific Co. v. Jensen, supra, it was held that where a stevedore engaged in the performance of work on board an interstate ship, unloading her on a wharf in navigable waters in New York, was accidentally injured and killed, the work was maritime, that his employment for such work, and injuries suffered in it, were also maritime, that the rights and liabilities arising from such work, employment, and injuries were within admiralty jurisdiction, and that the remedy afforded by the Workmen's Compensation Act of New York (Consol. Laws N.Y.c. 67) was a remedy unknown to the common law and not among the common-law remedies which are saved to suitors from exclusive admiralty jurisdiction by the Judiciary Act of 1789 (1 Stats. at L., 73). Two separate acts of Congress were passed subsequent to the decision in the case last cited, with the obvious legislative purpose of permitting application of workmen's compensation laws of the several states to injuries within admiralty and maritime jurisdiction. Both of these acts were declared unconstitutional. The rule in that case, therefore, has not been abrogated by any valid enactment of Congress. Knickerbocker Ice Co. v. Stewart,253 U.S. 149, 40 S. Ct., 438, 64 L. Ed., 834, 11 A.L.R., 1145;Washington v. Dawson Co., 264 U.S. 219, 44 S. Ct., 302,68 L. Ed., 646.

It has been held uniformly that the Great Lakes are high seas.United States v. Rodgers, 150 U.S. 249, 14 S. Ct., 109,37 L. Ed., 1071. It is established by a long line of authorities that the jurisdiction of courts of admiralty extends to all waters connecting with other states and countries and navigable by vessels used in commerce. The authorities on this proposition have been compiled in 1 Corpus Juris, 1256, Section 33, note 92. Admiralty jurisdiction prevails upon the waters of the Great Lakes as fully as upon the high seas of salt water.

The principle declared in the case of Southern Pacific Co. v.Jensen, supra, applies to the instant case. There is no practical distinction between the work of a stevedore unloading a boat, who suffers death while actually working upon the boat in the performance of his duty under the circumstances in that case, and the decedent in the instant case, who, as a fisherman, was making a trip in a trapnet boat upon the navigable waters of Lake Erie for the purpose of lifting nets and loading fish into the boat from those nets to be transported back to the fishhouse and there unloaded. The trip out to the fishing grounds, where the fish could be loaded, and back to the fishhouse, where they could, if they had been caught, be unloaded, was a part of the loading and unloading process and was essential to and a part of the transportation of the cargo of fish caught upon the high seas. His work therefore related directly to commerce and navigation, his contract of employment and his work and his injuries were maritime in character, and the rights and liabilities of the parties are controlled by the admiralty law. The holdings of the state courts are uniformly in accord with this conclusion. Foppen v. Peter J. Fase Co., 219 Mich. 136,188 N.W. 541; Leszczymski v. Andrew Radel Oyster Co.,102 Conn. 511, 129 A. 539; Bell v. Southern Casualty Co., (Tex.Civ.App.), 267 S.W. 531; Lee v. Licking Valley Coal Digger Co.,209 Ky. 780, 273 S.W. 542; O'Hara's case, 248 Mass. 31,142 N.E. 844.

In Foppen v. Fase Co., supra, an employe on a fishing tug on the Great Lakes was washed overboard while in the performance of his duties. The court held that the employment was purely maritime, and came within the admiralty jurisdiction, and that the death was not compensable under the Workmen's Compensation Act of the state of Michigan (Pub. Acts [Ex. Sess.] 1912, No. 10).

The unbroken line of authority is to the effect that the death of decedent was not compensable under the law of Ohio. The judgment will therefore be affirmed.

Judgment affirmed.

RICHARDS and LLOYD, JJ., concur.