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Dunleavy v. Tietjen & Lang Dry Docks

Decided: December 3, 1951.

EDWARD DUNLEAVY, PETITIONER-APPELLANT,
v.
TIETJEN & LANG DRY DOCKS, RESPONDENT-APPELLEE



Workmen's compensation appeal.

Drewen, J.c.c.

Drewen

[17 NJSuper Page 77] This is a workmen's compensation appeal. The present petition was filed in July, 1950. After hearing in the bureau it was dismissed. There had been a prior petition, filed in March, 1944, which was withdrawn by consent of the bureau. Thereupon petitioner, through his counsel, sought and obtained relief both in money payments and hospital treatment under the authority and provisions of the federal law.

The petition before us is for a plenary award under the New Jersey statute, concededly reducible by the money payments already received. The facts and circumstances bearing on the injury itself as well as the history of the case thereafter are all equally relevant to the present decision.

Petitioner had been employed by respondent for about two years as an electrician when, on June 19, 1942, he sustained his injury. After the regular day's work on the stated date he was sent aboard the Russian ship Dnepestroy for the making of repairs in the refrigerating compartment. The vessel at the time was moored to Pier 6 at Hoboken, in the North River. Its crew was aboard and the vessel was afloat. From the workman's testimony it appears that it was hurried work, since the vessel had to be ready for sailing the next morning. He was one of a group of four or five assigned to replace "equipment that was there * * * putting electrical wires in, a few lights here and there * * *." Another statement in the proofs is that the men were to repair worn out electrical equipment, or to install new equipment where that was required. While this work was proceeding an explosion occurred in the refrigeration hold and as a result petitioner was injured.

The first petition was discontinued on May 19, 1944, the stated reason being that it was the opinion of petitioner's attorney "that the matter is one that is cognizable under the U.S. Employees' Compensation Commission." The claim was then referred to New York counsel who on May 16, 1944, wrote to respondent's insurance carrier requesting that petitioner be furnished immediate medical and surgical attention pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C., sec. 901. Thereafter extensive medical treatments and hospitalizations were given and compensation paid to petitioner as required by the stated act. All payments were made and expenses paid by respondent's carrier. The rate of payment as provided was $25 weekly, for any and all weeks during which the employee was unable to work. The periods of payment recurred at intervals until

1950 and reached a total of $2,914.28 Petitioner appeared from time to time at the office of the United States Employees' Compensation Commission in New York to participate in discussions having to do with the payments and with his receiving further or different medical treatment.

It would appear that in the manner stated petitioner obtained all the relief that was requisite in his case within the provisions of the federal law; and the claim is still alive in the federal agency, so that any relapse would entitle him to further compensation payments. At any rate, it was after the described course of federal relief had run that the present petition was filed, making again the same claim under the New Jersey statute.

Specifically, the dismissal in the bureau was for the want of jurisdiction. The question for decision is whether under all the facts and circumstances the workman's continued and successful recourse to the federal authority for the satisfaction of his claim has had the effect of rendering the jurisdiction exclusively federal and so preventing the claim here filed. That, in my view, is the main question. There are two subordinate questions. Respondent contends: (a) that petitioner is barred by an election of remedies, and (b) that he is barred by the New Jersey statute of limitations.

As to the first of the latter contentions, I see no such factor in the problem. Petitioner urges that the question of election does not apply and relies on Baskin v. Industrial Accident Commission , 201 Pac. 2 d 549 (Cal. 1949), 338 U.S. 854 (1949); 217 Pac. 2 d 733 (Cal. 1950), and Allisot v. Federal Shipbuilding and Dry Dock Co. , 4 N.J. 445 (1950). I find nothing in these opinions to indicate that in either case prior proceedings had been had or payments made under the Longshoremen's Act. I think the point here is determined by the fact that whether the jurisdiction is state or federal, it must be regarded as exclusively one or the other. It will become indubitably clear, I think, that the whole development of the doctrine hereinafter considered in relation to the main question creates such exclusiveness. Needless to say, exclusiveness

of jurisdiction precludes election. Section 903 of the Longshoremen's Act provides: "Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." Section 905 provides: "The liability of an employer * * * shall be exclusive and in place of all other liability of such employer to the employee * * *." To employees entitled to the benefits of the Longshoremen's Act the remedy thereby afforded is exclusive. South Chicago Coal & Dock Co. v. Bassett , 309 U.S. 251, 256 (1940).

Assuming, on the other hand, that the case is within the jurisdiction of the State, it follows that the prior proceedings before the federal authority without jurisdiction therefor certainly would not bar petitioner's right to seek compensation in the State. In the converse situation the federal courts have so held. Great Lakes Dredge & Dock Co. v. Brown , 47 F.2d 265 (D.C.N.D., Ill. E.D. 1930); Massachusetts Bonding & Ins. Co. v. Lawson , 149 F.2d 853 (C.C.A. 5, 1945). Petitioner's position is in no way affected by election.

As to the statute of limitations, it is first to be noted that respondent admits that compensation payments were made and medical treatments given within the relevant period. It is contended, however, that these benefits were accorded under the Longshoremen's Act and not under the New Jersey Act, the argument being that they are therefore without effect upon the running of time against the claim in this State. It is true that according to the general rule part-payment will not affect the running of the statute unless it appears that the payment relied on "was made on the particular debt or obligation in controversy * * *." 142 A.L.R. 389, 390 (1943). Needless to say, however, the statute of limitations can have place here only on the assumption

that there was no federal jurisdiction and that the merits of the claim are restricted to adjudication in the state forum. But even assuming the absence of federal jurisdiction, the payments already made will have to be regarded as made in contemplation of the terms of the New Jersey statute. Our "scheme of compensation does not of necessity depend upon the mutual assent of the parties, for it enters by operation of law into every contract of hiring made within this State, unless there be an affirmative rejection of the plan for the alternative common-law liability for negligence as modified by the provisions of Article 1 of the Act * * *. Thus it is that reality of consent is not an indispensable element, although it may exist in the individual case, for Article 2 is applicable even though the parties did not know of the existence of the statute, or, knowing, did not in fact have it in view." Miller v. National Chair Co. , 127 N.J.L. 414, 417 (Sup. Ct. 1941), affirmed 129 N.J.L. 98 (E. & A. 1942). Great Lakes Dredge & Dry Dock Co. v. Brown, supra , involved the converse situation. There payments had been made under a state compensation act, the employee then bringing proceedings under the Longshoremen's Act more than a year after the injury, a year being the period of limitations under sec. 913 (a), and the payments having been made within the year. The federal court held that any payments made must have been made in contemplation of liability under the Longshoremen's Act, and accordingly held that the payments suspended the running of the statute and that the employee could recover under that law. The reasoning of this decision is persuasive and should apply to reverse situations like the present one. I think, therefore, that petitioner is not barred by the limitational sections of our act. In view of the determination that follows, however, the issue is academic. Annotations bearing on it may be found in 144 A.L.R. 606 and 142 A.L.R. 389 (1943).

Coming to the main question of jurisdiction, we are met with a doctrine which appears to be clear and definite and which, in my judgment, has ...


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