On appeal from the Supreme Court.
For the plaintiff-appellant, Elias G. Willman (Lindabury, Depue & Faulks, Walter F. Waldau and William L. Dill, Jr., of counsel).
For the defendant-respondent, Kellogg & Chance.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. At the close of the trial of this cause in the Supreme Court Circuit (Essex county) the court directed the jury to find a verdict of no cause of action and from the judgment entered thereon the plaintiff, administratrix ad prosequendum of the estate of her deceased husband, appeals.
The deceased, Stewart L. Baldwin, at the time of the happening for which damages are sought, was an employe of the
Federal Shipbuilding and Dry Dock Company, which operated a shipbuilding plant on the Hackensack river in Kearny, New Jersey. He received injuries, from which he died, at the hands of the defendant corporation, Linde-Griffith Construction Company and, it is alleged, through its negligence.
The Federal Shipbuilding and Dry Dock Company had, sometime previously, caused a cofferdam to be built, projecting from the shore into the river, to enable it to better conduct its business of ship construction. This cofferdam was fashioned by enclosing two parallel piers which were permanently lined with interlocking iron sheeting and which, when joined by a connecting row of temporary piling at the off-shore end of the piers, which was likewise rendered water tight by means of iron sheeting, made a U-shaped compartment. The river water when pumped from this cofferdam, left the enclosure dry for the work of ship construction.
At the time of this happening, a finished ship was on the ways ready to be launched. The defendant had the contract to remove the temporary piling off-shore so that the river water might again find its way in between the piers in order that the vessel might be let off the ways into the river. The deceased, at the time of his injury and death, was at work astride the stringer piece removing the connecting bolts and fish plates to facilitate the removal by the defendant of the temporary piling and the interlocking iron sheeting. It is not disputed but that at the time he was in the employ of the Federal Shipbuilding and Dry Dock Company and not of the defendant. One of the iron sheets raised by a swinging hoist controlled from a derrick of the defendant, which was to be loaded on an attending barge, struck Mr. Baldwin, as a result of which he died almost at once.
Now at the end of the case, defendant's counsel moved for a direction of verdict on the ground that plaintiff's intestate was guilty of contributory negligence; that the defendant was guilty of no actionable negligence and, further, that there was no proof in the case that the administratrix ad prosequendum had given notice to the deputy commissioner of the United States employes compensation commission of an election to sue a person other than the employer of the deceased
for damages, it being asserted that such notice is required by the federal statute, known as the Longshoremen's and Harbor Workers' Compensation act. The trial judge did not pass upon any of these contentions but rested his determination on the fact that he believed the case to be maritime in character and that our state courts were without jurisdiction, saying that the courts of this state had "no jurisdiction over the subject-matter of this suit and that it belongs exclusively in the federal court. That is ...