On certification to the Appellate Division, Superior Court, whose opinion is reported in 4 N.J. Super. 404.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This action was instituted under the New York Wrongful Death Act, New York Decedent's Estate Law, section 130.
Plaintiff's decedent, an employee of the Bethlehem Steel Company, was killed as a result of a fall through a hatch opening while working on the steamship "Ben F. Dixon" as the vessel was at a North River, New York City pier. The work in which he was engaged was being performed by the Bethlehem Steel Company, pursuant to a contract entered into between that Company and the War Shipping Administration acting on behalf of the United States, which owned, operated, managed and controlled the vessel.
This defendant was the ship's husband or the general agent of the United States, acting through the War Shipping Administration, for the management and conduct of the
shoreside business of the vessel, pursuant to the terms of a "General Agency Service Agreement" entered into between them.
In the trial court, a rule to show cause issued why the complaint should not be dismissed and judgment entered on the pleadings. The rule was made absolute, the complaint dismissed and final judgment entered in favor of the defendant. From that action plaintiff appealed to the Superior Court, Appellate Division, which reversed the judgment below. On the petition of the defendant we granted certification. 3 N.J. 374.
The cause of action pleaded charges negligence generally against the defendant, its agents, servants and employees and the master, officer and crew of the vessel, but there is no specific act of negligence charged against an agent, servant or employee of the defendant. The complaint charges acts of negligence which could only be attributable to the ship's master, officer or crew or to those who had possession and control pro hac vice of that part of the ship undergoing repairs, and the generally pleaded acts of negligence of defendant's agents are predicated on possession and control not given under the "General Agency Agreement."
Under these circumstances the determination of this cause is controlled by the decision of the United States Supreme Court in Caldarola v. Eckert, 332 U.S. 155, 67 S. Ct. 1569, 91 L. Ed. 1968 (1947). See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. (1949); Fink v. Shepard Steamship Co., 337 U.S. 810, 69 S. Ct. 1330, 93 L. Ed. (1949). In the Caldarola case it was held a stevedore injured while working aboard a vessel owned by the United States and operated under a "General Agency Agreement," identical with the one here involved, was precluded as a matter of law from holding the general agent liable for his injuries.
The rationale of that opinion is that the language of the agency contract is the conclusive criterion for establishing possession and control in the agent, and since the agent was not, as a matter of law, or fact, in possession and control, as
is here alleged in the complaint, it is not liable. It was in that case held that the contract could not be read to find the agents to be owners pro hac ...