(a) It becomes legislative adjudication 'If as contended by the defendant, the liability made exclusive by said statute, is a liability other than liability without fault, arising ipso facto from the master-servant relationship, as for instance a liability based upon negligence as in the Federal Employers' Liability Act * * *.'
'(b) If the excluded liabilities include other than compensation act liabilities, it denies plaintiff the right to a trial by jury guaranteed him by the seventh amendment to the constitution.
'(c) If the definition of 'employer' in said statute by 'meaning' 'an employer any of whose employees are employed in maritime employment * * *' excludes in any case the injured employee, it is discriminatory as to plaintiff as it denies him the benefits of a commercial regulation, others in his class, as fixed by Congress, may enjoy.
'(d) If the definition of 'employer' as contended for in the foregoing specification so excludes the injured plaintiff in any case, the statute is unconstitutional because it denies the plaintiff, due process and the equal protection of the laws.
'(e) If the meaning of 'employee' in said act comprehends one like plaintiff employed, not by the master of the vessel over eighteen tons net, but in the extension of the railroad operations of the defendant, the said statute is unconstitutional, because it discriminates against plaintiff as a member of a class legislated for by Congress, it denies him the benefits others in his legislated class enjoy, denies him a right to a trial by jury and denies him due process and the equal protection of the laws.
'(f) Because the said statute if construed as is contended by the defendant, to encompass other than accidental injuries divorced from negligence, and occupational diseases, it is unconstitutional for all of the reasons hereinabove set forth in all other specifications.
'(g) It is unconstitutional in divers other respects.'
The plaintiff in this case was on board a barge lying in navigable waters performing his task of trimming coal for his railroad employer. The barge was conceded to be in excess of 18 tons and it is admitted that the railroad engaged at least in some maritime operations. He is no less the railroad employee cognizable under the Longshoremen's and Harbor Workers' Act than the brakeman removing cars from a float, or loading freight in a car on such a float as in the O'Rourke and Nogueira cases.
Nor does it appear essential that the boat or vessel should be the property of the employer as plaintiff contends. Neither the wording of the Act nor any of the decisions thereunder make ownership by the employer of the vessel upon which the employee was injured a condition precedent to recovery under the Act. See Parker v. Motor Boat Sales, 1941, 314 U.S. 244, 62 S. Ct. 221, 86 L. Ed. 184.
There is no merit to plaintiff's argument that he comes within an exception to the Longshoremen's and Harbor Workers' Act because he is compensable under the New Jersey Compensation Act. The cases
he cites refer to the 'twilight zone' recognized in the case of Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S. Ct. 225, 87 L. Ed. 246, between state Workmen's Compensation Acts and the Longshoremen's and Harbor Workers' Act. In the main they refer to employees of ship builders or fitters, who are painters, electricians, etc., and concern themselves with the determination of whether the worker shall go under the state or the federal act, or has his election of one or the other of them. But there is no authority for plaintiff's statement that an employee of a common carrier engaged in interstate commerce may pursue a remedy for injury in the course of his employment by way of a state workmen's compensation law. Indeed, the contrary is true for the exclusive remedy of such an employee is the Federal Employer's Liability Act
unless he come under such an exception as that confronting the plaintiff in this case.
An interesting reference to the influence of the case of Pennsylvania R. Co. v. O'Rourke, supra, upon the problem is contained in the recent decision of the New Jersey Supreme Court in Green v. Simpson & Brown Const. Co., N.J., 1953, 101 A.2d 10, 12,
wherein the plaintiff sought compensation under the New Jersey Workmen's Compensation Act on account of the death of her decedent, a boiler tender on a stationary dredge in navigable water but was relegated to the remedy afforded by the Longshoremen's and Harbor Workers' Act on the theory that he was employed on navigable water.
The contention of the plaintiff that the Longshoremen's and Harbor Workers' Act is unconstitutional for the reason that it denies plaintiff a trial by jury was ruled on to the contrary in Rowlette v. Rothstein Dental Laboratories, Inc., 1933, 61 App.D.C. 373, 63 F.2d 150, certiorari denied 289 U.S. 736, 53 S. Ct. 657, 77 L. Ed. 1484. The invalidity of the constitutionality of the Act on plaintiff's other grounds is not sustained in view of the holding of South Chicago Co. v. Bassett, supra, and Crowell v. Benson, 1932, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598.
Since the plaintiff's injury occurred in furtherance of his employer's business on a barge in excess of 18 tons lying in navigable waters and his employer was engaged in part at least in maritime operations, although for the most part its business was that of a common carrier in interstate commerce, his remedy is under the Longshoremen's and Harbor Workers' Act, as is clearly indicated in the case of Pennsylvania R. Co. v. O'Rourke, supra, 344 U.S. at page 339, 73 S. Ct. 302. See also South Chicago Co. v. Bassett, supra.
Hence the motion of plaintiff for a jury trial will be denied and the motion of defendant for dismissal of the complaint will be granted.
An order in conformity herewith should be submitted by the defendant.