For the prosecutors, Benjamin M. Schlossbach (Henry K. Golenbock and David Weinstein (of the New York bar), of counsel).
For the respondents, Clarence F. McGovern.
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. This cause requires that we decide whether the Board of Review of the State Unemployment Compensation Commission properly concluded that Soren Hansen and Frans Fogelberg Swanson were eligible for benefit payments
pursuant to our state Unemployment Compensation Law. N.J.S.A. 43:21-1, et seq.
Prosecutors contend that these claimants (employees) are members of a "crew" and that therefore the New Jersey statute fails to cover them because of the provisions therein that "The term 'employment' shall not include * * * services performed as an officer or member of the crew of a vessel on the navigable waters of the United States." N.J.S.A. 43:21-19 (i) (7) (C). Additionally, prosecutors contend that these claimants could not be covered by the state act without violating article 3, section 2 of the Constitution of the United States which provides that "The Judicial power shall extend * * * to all cases of admiralty and maritime jurisdiction."
Save as to difference in the amount of benefit payments, which each claimant was awarded, the facts are admittedly the same in each case and are not in dispute. As found by the Board of Review they are, in so far as are here pertinent, in substance, as follows:
The employers are engaged in the business of catching fish, from pound nets set in the Atlantic Ocean, within the territorial limits of New Jersey, preparing such fish and shipping them to the market for sale. They maintain an establishment on the shore. In order to catch fish, groups of eight men each launch open boats, of less than ten tons burden, through the surf, which can be propelled either by motor or by oars; the boats are not motor driven when launched through the surf but are propelled by their occupants pulling on a line which is stretched from a pole set in the ocean floor outside the surf to a pole set in the beach; when the boat is thus hauled past the surf by all the occupants pulling on the rope, then the motor is used to propel the boat to the pound net. When the boat is motor driven, only two men, the steersman and operator of the motor, have any duties to perform. On reaching the pound, which may be a half mile to two miles off shore, the engine is stopped and the occupants of the boat haul in the net and secure the fish, repair any damage done to the net and re-set the net. On the way in the men sometimes engage in cleaning the boat or in cleaning or grading the
fish; after landing on shore they remove the fish from the boat and sometimes assist in cleaning and grading the fish. The boats are required to be registered with the federal government. The men do not sign articles as members of a crew; they may quit their jobs at their own pleasure; they are former seamen but are not required so to be. Knowledge of handling rope is the chief duty they have in common with seamen but it takes just as long to develop a seaman into a competent fisherman as it would to develop a landsman. The men work about ten hours a day; about one hour a day at the most is spent in hauling the boat through the surf, the greater portion of their time is consumed in hauling the boat from point to point at the pound and in handling the nets; less than half their time is spent on land. At the beginning of the season the men are assigned to groups and each group is assigned to a boat for the fishing season. They are not subject to the same discipline as seamen on a vessel at sea. They regard the man in charge of each group as a "boss" rather than a sea captain; they remain under his direction when working on land as well as on the water; while maneuvering the boat with ropes, each man has ...