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Hardt v. Cunningham

Decided: September 16, 1947.


On certiorari.

For the prosecutor, John G. Flanigan.

For the respondent, David Bernheim (Edward J. Abromson, of counsel).

Before Case, Chief Justice, and Justices Heher and Colie.


The opinion of the court was delivered by

HEHER, J. The question here is whether there was an accident compensable under the State Workmen's Compensation Act (R.S. 34:15-7, et seq.) in these circumstances, established by stipulation of the parties and supplemental testimony:

On August 8th, 1942, the deceased employee, Peter Hardt, suffered death by an accident which arose out of and in the course of his employment with prosecutor "as a barge captain or bargeman," while the barge to which he was assigned was moored in Harrison, New Jersey, to a pier in the Passaic River, at that point a navigable water of the United States. The fatality occurred at about 10:00 P.M., in this wise, according to the stipulation: "The decedent had gone ashore from the barge and after visiting the Peanut Bar at Harrison with friends and relatives was returning to the barge and upon reaching the pier found that the tide had lowered some three feet and that the barge itself was away from the pier a distance of some three feet or so. The decedent jumped from the pier or dock to the barge, landing on the deck of the barge, in an upright position, but for some reason not [136 NJL Page 139] disclosed, decedent lost his balance and fell backwards into the Passaic River and died as a result of drowning. * * * There was a ladder on the barge but apparently the decedent did not take the ladder from the barge to go to the Peanut Bar some two hours or so before the accident." The decedent's niece, an eye-witness, testified that he "sat down on the edge" of the dock and "put his hands down and then he heaved." The vessel had a "narrow" walk around its outer edge; and it was upon this that the decedent "landed" when he jumped or sprang from the dock. The decedent was required to be upon the barge "all the time" day and night, termed "a twenty-four hour day;" and he was the "captain" in charge and the sole occupant of the vessel. This was the case also while the barge was in transport. It had a cabin and sleeping quarters. The decedent was paid a monthly wage of $135. But he was given no subsistence; and there was testimony that during his absence from the barge on the occasion in question he procured some provisions for a voyage to Buffalo, New York, which he was about to make on the vessel -- a journey requiring between 30 and 35 days. The employer is in the marine transport business. He "is a resident of New York;" and "the home port of the barge is located in New York State." The barge was moored to the Harrison pier a day or two before the fatal accident, on its arrival from the State of New York, "and was being loaded with a cargo of scrap metal for delivery to Buffalo." As captain, the decedent had general supervision of the barge while in port and in transport. He had been in prosecutor's employ but two days when the mishap occurred. He rendered no service in the loading and unloading of the vessel's cargo, nor was he obliged to do so; and he had no shore duties. Generally, it was incumbent on him to throw, fasten and release lines at docks and in the canal locks, take the lines of the tugs and, presumably, care for the cargo. The employer testified, and there was no showing otherwise, that the decedent's duties consisted of making "the barge fast to the dock," pumping it out, placing the hatch cover after the loading of the boat, taking "general care of the barge," uncoupling the barge and making it fast to the walls of the

canal locks on the route to Buffalo, "coupling up" the barge after it had passed through the locks, "steering the boat behind the tug" in the process of moving it through the locks, thirty-five in all on the trip to Buffalo, and to light the navigation lamps at night. The vessel had no motive power of its own; it was moved by towing.

After the reversal of a judgment of the Compensation Bureau dismissing the petition and the remand of the cause for further proceedings (23 N.J. Mis. R. 369; 44 A.2d 690), there was an award of compensation in the Bureau which was affirmed in the Hudson Common Pleas. The Common Pleas Judge conceived the issue to be whether the accident "happened on land or on navigable waters." He found that the decedent "jumped from the dock, landed on the barge in an unright position, lost his equilibrium, fell backward into the water and was drowned;" that although it was stipulated that the decedent "landed on the deck of the barge," he "was there only momentarily on his way from the pier to the water" and he did not reach "the barge in the usual sense which means he arrived there safely or securely," and thus the accident "originated on the land where the deceased first exerted the strength to jump and caused his body to move first to the barge momentarily and then to the water." These cases are cited in support of this reasoning: The Atna, 297 Fed. Rep. 673; Union Oil Co. v. Industrial Accident Commission, 211 Cal. 398; 295 Pac. Rep. 513; Baldwin v. Linde-Griffith Construction Co., 115 N.J.L. 608.

It is urged on behalf of the employer that "the cause is maritime" and exclusively the subject of federal cognizance. The argument contra is that the barge "had been withdrawn from navigation," and the decedent was not a seaman within the purview of the admiralty law, as supplemented by the Jones Act (41 Stat. 988, 1007, ch. 250; 46 U.S.C.A., ยง 688); and that "the accident arose on 'land'" and so is remediable under the State Workmen's Compensation Act.

The admiralty and maritime jurisdiction reposes in the government of the United States. Article III, section II of the Federal Constitution extends the judicial power of the United States "to all ...

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