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Toland v. Atlantic Gahagan Joint Venture Dredge No. 1

Decided: March 6, 1970.

RICHARD TOLAND, PLAINTIFF-APPELLANT,
v.
ATLANTIC GAHAGAN JOINT VENTURE DREDGE NO. 1, ET ALS., DEFENDANTS-RESPONDENTS



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

[109 NJSuper Page 187] Plaintiff appeals from a summary judgment entered in favor of defendant on July 28, 1969. The effect of this judgment was to dismiss plaintiff's

suit to recover damages under general maritime law and under the Jones Act, 46 U.S.C. § 688. In ordering summary judgment in favor of defendant, the trial court ruled that an award of compensation to an injured seaman-employee under New Jersey's Workmen's Compensation Act precluded his pursuing his rights under general maritime law and under the Jones Act against his shipowner-employer in the New Jersey court. The propriety of that decision is the issue on this appeal.

Plaintiff's three-count complaint in the Superior Court, Law Division, filed on July 14, 1967, alleged that on July 22, 1965, while in the employ of and with the consent of defendants, he was required to and did work in and about a "vessel" known as Dredge No. 1, which was "owned, chartered, repaired, controlled, managed and/or maintained by the defendants." While performing his duties on board this vessel, he was injured solely by reason of the negligence of defendants and their seamen and the unseaworthy condition of the vessel. He alleged that defendants failed to provide him with a safe, secure and proper place where he could perform his duties. He claimed that the vessel was unseaworthy in that, when the Dredge moved, a pile of iron ingots, improperly stacked, fell on plaintiff, then in the hold of the Dredge. The Dredge at the time of the accident was in the navigable waters of Newark Bay, at Port Newark, New Jersey.

The first count sought recovery under the general maritime law. The second count was based upon 46 U.S.C. § 688, commonly known as the Jones Act. The third count alleged defendants' failure to furnish plaintiff with board, medical care and attention, medicines, and the expenses of his maintenance and cure in violation of defendants' duty to do so upon plaintiff's becoming injured and ill.

Plaintiff also filed a claim petition in the New Jersey Department of Labor and Industry, Division of Workmen's Compensation. The petition was dismissed on April 6, 1968 by the Judge of Compensation on the ground that

plaintiff was a member of a crew of a vessel on navigable waters of the United States, when he was injured, and for that reason his remedy "lies in the maritime law as supplemented by the Jones Act." In support of that correct statement of the applicable law, the Judge of Compensation cited Norton v. Warner Co. , 321 U.S. 565, 64 S. Ct. 747, 88 L. Ed. 931 (1944), and Hardt v. Cunningham , 136 N.J. Law 137 (Sup. Ct. 1947). The case of Hansen v. Perth Amboy Dry Dock Co. , 48 N.J. 389 (1967) was ruled out as factually inapposite because there the nature of the employment, a painter working exclusively on land, on new ships in drydock, was distinguishable from that of a person who is injured while working as a member of a crew of a vessel on navigable waters.

On appeal, the Middlesex County Court reversed this dismissal by the Division and remanded the matter to the Division for a hearing to establish the amount of compensation which plaintiff, as petitioner, was entitled to receive. The County Court held that, even though the injury occurred on navigable waters, the State has jurisdiction "if the facts show sufficient connection with the state." It concluded: "This is so even though the employee might also have a Federal remedy." It found a sufficient local connection to allow applicability of New Jersey's Workmen's Compensation Law.

Thereafter, the Division conducted a hearing and made an award of workmen's compensation benefits in favor of plaintiff.

In Hansen v. Perth Amboy Dry Dock Co., supra , Justice Proctor, speaking for a unanimous court said:

The most consistent factor appearing in the numerous United States Supreme Court decisions beginning with Davis [ Davis v. Dept. of Labor & Industries of Washington , 317 U.S. 249, 63 S. Ct. 225, 87 L. Ed. 246 (1942)] and pertaining to the compensation of amphibious workers is the desire that an injured claimant should receive the maximum compensation possible and "not lose his ...


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