Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal by petitioner from a judgment of the Mercer County Court, reversing an award of compensation benefits made in petitioner's favor by the Division of Workmen's Compensation. The County Court determined that, under the facts of this case, the Division was without jurisdiction to make the award because petitioner's remedy was exclusively within the provisions of the Federal Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C.A., sec. 901 et seq.
Petitioner had been in respondent's employ since 1955 as a stevedore-laborer. He worked on the dock and in the warehouses, which are on land, and occasionally worked down in
the hold of a ship, which would be tied to a dock at respondent's location on the navigable waters of the Delaware River. On December 7, 1960 petitioner was instructed to go aboard a ship so tied to the dock and help unload cement therefrom. He was down in hold number 1 of the ship and had lifted a bag of cement to place it on a pallet to be hoisted to top side when the bag split and, while attempting to save it, he hurt his back.
The trial record does not reveal how many times prior to December 7, 1960 petitioner had worked aboard ship for respondent, beyond petitioner's testimony that working down in the hold of the ship was part of his "combined" duties and the "last time" prior to the accident that he had worked aboard ship was in October of 1959, when he worked about 30 hours unloading cement, placing the bags of cement on pallets which would be hoisted from the hold by a crane on the ship. Petitioner also testified that he had helped to unload steel and paper, but he did not specify when or how that unloading was done.
There is no dispute as to the employment relationship, or the happening of the accident on December 7, 1960 in the manner and at the precise place described above, or that the Delaware River is navigable water. The parties also stipulated at the hearing before the Division of Workmen's Compensation that the respondent employer had voluntarily paid petitioner $323.95 for temporary disability benefits under the Federal Longshoremen's and Harbor Workers' Compensation Act, at the weekly rate fixed thereby. This payment was not the result of any proceeding brought by petitioner.
Petitioner argues that he had a right to seek the benefits provided for in the New Jersey Workmen's Compensation Law, R.S. 34:15-7 et seq., because he was only a laborer, not a stevedore or longshoreman, and his work was of a strictly local character, the greater portion of it being on the dock and his work aboard ship being only occasional and infrequent. He also urges that there was no testimony as to who requested him to go aboard the ship, or as to the size of the ship or
whether it was in commission and capable of navigation under its own power, so as to make his activity thereon subject to the federal legislation.
Despite petitioner's contention on appeal that he was not a stevedore or performing stevedoring duties at the time of the accident, the trial record does not support such contention. In his workmen's compensation claim petition, petitioner stated his occupation as "Stevedore-Laborer." He was, at the time of the accident, actually working down in hold number 1 of the ship, helping to unload its cargo, and the ship was, of course, moored to a dock and in navigable waters. The unloading of such a ship is the work of a stevedore, is directly related to commerce and navigation, and "stevedoring is maritime in nature." Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917). Hence, petitioner's activities at the time and place of the accident were maritime in character.
In Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S. Ct. 88, 73 L. Ed. 232 (1928), the employee, as here, was expected to work both upon the land and on the water. In that case, the employee was killed while doing stevedore work on a vessel lying in navigable waters. The court summed up the applicable rule as follows:
"* * * [h]is employment, so far as it pertained to such work, was maritime * * * and the rights of the parties must be ascertained upon a consideration of maritime law. * * * The unloading of a ship is not a matter of purely local concern. It has direct relation to commerce and navigation, and uniform rules in respect thereto are essential. The fact that Strand worked the major portion of the time upon land is unimportant. He was upon the water in ...