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Allisot v. Federal Shipbuilding and Drydock Co.

Decided: May 8, 1950.

EMIL ALLISOT, PETITIONER-RESPONDENT,
v.
FEDERAL SHIPBUILDING AND DRYDOCK COMPANY, DEFENDANT-APPELLANT



On appeal from the Hudson County Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

The question here is one of jurisdiction. Respondent has an award of compensation under New Jersey law (R.S. 34:15-7 et seq.) for disability ensuing from an injury by accident arising out of and in the course of his employment as a painter by the appellant Federal Shipbuilding and Drydock Company in the performance of a contract with the Department of the Army for certain construction work aboard an army transport known as the "General Rose," while the vessel was moored alongside a dock in the Hackensack River, a navigable water of the United States, at the Company's shipyard in Kearny, New Jersey. The employer contends that the federal maritime law affords an exclusive remedy. It appealed to the Appellate Division of the Superior Court from the judgment of the Hudson County Court affirming the award of the Compensation Bureau; and we certified the appeal here on our own motion.

These are the essential facts and circumstances: The vessel was built during the late war, and commissioned and put into [4 NJ Page 447] service in the Pacific area as a transport for the United States Navy under the name of "Admiral Rodman." When hostilities ceased, the ship was sent to the Brooklyn Navy Yard and transferred to the Department of the Army. After service for a year in the North Atlantic as an Army transport for returning troops, this vessel and another, the "Admiral Coontz," were placed in appellant's shipyard at Kearny for "major alterations, conversion, and repairs." This was the testimony of the Chief of the Maintenance and Repair Section of the Water Division at the New York Port of Embarkation, who was "responsible for the maintenance and repair and for any alteration or conversion work" on Army transports "assigned to the New York Port of Embarkation." The witness said that "the scope of the work to be done" by appellant "was to convert the vessels from wartime Navy transports, on which only temporary merchant crew accommodations had been installed, into full-fledged Army peace-time transports, fully certificated by the United States Coast Guard as being in compliance with all the rules and regulations of that body and in full compliance with the International convention for the safety of life at sea and classified as passenger vessels by the American Bureau of Shipping," and to perform "certain repair work peculiar to each vessel." The witness was a naval architect and marine engineer by profession. The alterations required a "ripping out" and a reconstruction of much of the interior of the ship and the addition of a new deck, among other things. "Certain repair work" was done "on the propulsion equipment," characterized as "relatively minor;" and "minor relocations and modifications were made to the navigational equipment." But there were "major alterations" to the "general arrangement of the ship." In shipbuilding usage, "conversion" signifies "major alterations" as compared with "normal repairs." A witness said: "The majority of the stuff was ripped out, with the exception of the basic decks and strength bulkheads." This was true of "the entire ship, with the exception of the engine room and boiler room and tank sections." Another testified: "It was practically

a hole. The only thing that was left was the engine room. The ship was wide open." The work on the then "Admiral Rodman," now the "General Rose," was done under a "lump-sum" contract, at a price exceeding $6,000,000. The work began when the vessel entered the shipyard on April 30, 1947, and was to be completed in December, 1948, allowing four and a half months for time lost as the result of a strike. During the course of the work, the vessel was manned by a "skeleton crew" of 48, who did not have their meals aboard ship. Their presence was not concerned with navigation but the doing of "routine work, such as scaling and red leading the hull, cleaning the condensers and boilers, to observe the work that was going on, so that they would be familiar with the various installations after they were concealed, and to give aid, counsel and advice to the technical inspectors who were there as the Army representatives." These were duties, the Chief of Maintenance and Repair conceded, that would be "unusual" in the case of mere repairs, but "normal" as regards vessels undergoing "major alterations," such as was the case here. The vessel was not under its own motive power while the work was in progress until steam was generated for a test run in November, 1948. The change of name occurred during the course of the work. The workman had general employment as a painter in the shipyard. He suffered his injury in a fall on the promenade deck of the ship on May 17, 1948, a year after the commencement of the work.

Deputy Director Corbin found that under the "contractual plans," 17 in number, "the vessel was a conversion unit;" that the "alterations and changes" were so extensive as to constitute "a rebuilding of the ship" to provide, inter alia, between 175 and 200 staterooms where there were but a few before; and that the workman's service "pertained to local matters" and was but incidentally related "to navigation and commerce." Judge Ziegener, in the County Court, concurred in the factual findings; and we perceive no ground for disturbing them. They are well founded in the proofs.

Under Article III, Section II of the Federal Constitution, the judicial power of the United States extends "to all Cases of Admiralty and Maritime Jurisdiction." And Article I, Section VIII confers upon the Congress authority to provide for the execution of all powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. The legislative history is to be found in Hardt v. Cunningham, 136 N.J.L. 137 (Sup. Ct. 1947). Section 9 of the Judiciary Act of 1789 granted to the District Courts of the United States "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." 1 Stat. 76, ch. 20. This exclusive jurisdiction was incorporated without substantial change into the revision of the Judicial Code of 1911. 36 Stat. 1091, ch. 231.

Generally, the jurisdiction of admiralty in matters of contract depends on the nature of the contract, but as to torts, injuries and offenses, it is determined by the locality of the act. In this country, the admiralty jurisdiction extends to acts committed on the high seas and other navigable waters. Injuries occurring on land are not within the cognizance of admiralty. Philadelphia W. & B.R.R. Co. v. Philadelphia & Havre deGrace Steam Towboat Co., 23 How. 209, 215, 16 L. Ed. 433, 435 (1860); The Plymouth (Hough v. Western Transportation Co.), 3 Wall. 20, 18 L. Ed. 125 (1866); Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S. Ct. 733, 58 L. Ed. 1208 (1914). In the case last cited, it was held that a stevedore engaged in loading and stowing the cargo of a ship lying in port in navigable waters was performing a maritime service, and was subject to the jurisdiction of admiralty. Three years later, in 1917, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 529, 61 L. Ed. 1086 (1917), the Supreme Court ruled that stevedoring is maritime in nature, and the employment a "maritime contract," and state legislation providing compensation to longshoremen injured in the performance of

their work was in conflict with the cited provisions of the Federal Constitution. There, a stevedore suffered a fatal injury when his head struck the ship "at the top line" while operating an electric freight truck on the gangway, unloading lumber. State legislation constitutes an invasion of the federal maritime domain, it was declared, "if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations." The conclusion was that workmen's compensation is of a character wholly unknown to the common law, is incapable of enforcement by the ordinary processes of any court, and "is not saved to suitors from the grant of exclusive jurisdiction." In 1922, the Court ruled that the local law governed the case of a longshoreman injured on land, although engaged in loading a vessel. State Industrial Commission of State of New York v. Nordenholt Corporation, 259 U.S. 263, 42 S. Ct. 473, 66 L. Ed. 933. And in the same year, the Court held that a contract for the construction of a vessel was nonmaritime, and a carpenter injured while at work on the uncompleted ship lying at a dock in navigable waters forming part of the shipbuilding plant had his remedy under state law. It was said that neither the workman's "general employment, nor his activities at the time, had any direct relation to navigation or commerce;" and that "as to certain local matters, regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by state statutes." Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S. Ct. 157, 66 L. Ed. 321 (1922). To the same effect: Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S. Ct. 89, 66 L. Ed. 210 (1921).

Amendments to the Judicial Code adopted in 1917 and 1922, purporting to save to suitors, not only the common-law remedy, but also the right to compensation granted by local law to persons ...


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