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(162 N.E.)

O. P. Co. v. Seneca Iron & Steel Co., 128 Misc. Rep. 335, 219 N. Y. S. 418. There can be no doubt that the power to be generated at its new site is for a public use and must be supplied to the public on reasonable demand.

[6] Appellants argue that subdivision 3 of section 624 is unconstitutional, in that it violates the equal protection clause of the Fourteenth Amendment by arbitrarily granting to the owner of the major part of the head and volume of the usable flow of a stream rights which are withheld from the owner of the minor part. The sovereign power of eminent domain may be withheld from all except the sovereign or it may be delegated at the will of the Legislature. The legislative authority to delegate is restricted by the Constitution in only two respects; just compensation must be paid for the private property taken, and the use for which it is taken must be public. People v. Adirondack Railway Co., 160 N. Y. 225, 54 N. E. 689, affirmed 176 V. S. 335, 20 S. Ct. 460, 44 L. Ed. 492; Joslin Mfg. Co. v. City of Providence, 262 U. S. 668, 43 S. Ct. 684, 67 L. Ed. 1167. The order of the Appellate Division should be affirmed, with costs.

CARDOZO, C. J., and POUND, ANDREWS, and KELLOGG, JJ., concur.

CRANE, J., dissents on the ground that the act, section 624, subd. 3, of the Conservation Law, is unconstitutional,

LEHMAN, J., not sitting.

Order affirmed.

(248 N. Y. 225)

RESIGNO v. F. JARKA CO., Inc., et al. Court of Appeals of New York. May 29, 1928. 1. Seamen

29(5)-Section of Merchant Marine Act giving seamen action at law for injuries must be construed in setting of other acts and sections (Merchant Marine Act of 1920, § 33; 46 USCA § 688).

Merchant Marine Act of 1920, § 33 (46 USCA § 688), giving seamen action at law for injuries, must be construed in the setting of other acts and sections in determining seamen's right of action.

2. Seamen 29(5)—Statute giving seamen action at law for injuries held limited to seamen at work on domestic vessels, and inapplicable to stevedore injured on German steamship (Merchant Marine Act of 1920, 8 33; 46 USCA § 688; 46 USCA § 713).

Merchant Marine Act of 1920, § 33 (46 USCA § 688), giving seamen right of action at

law for damages for injuries in course of employment, held not to apply to seamen at work on foreign vessels, in view of title of statute and section 39 (46 USCA § 889), Act Cong. March 4, 1915, § 20, which section 33 amends, and, in view of related statutes, Rev. St. U. S. §§ 4510, 4530, 4607, 4612 (46 USCA §§ 562, 597, 709, 713), Act Cong. March 4, 1915, §§ 14, 16 (22 USCA § 258; 46 USCA § 222), and Act Cong. June 5, 1920, § 30, subsec. P (46 USCA $971), and sections 31, 32, 34 (46 USCA §§ 597, 599); and stevedore employed by stevedoring company suffering injury on German steamship in navigable waters was therefore not entitled to claim benefit of statute.

3. Seamen 29(5)-Statutory remedy for injuries applies only to domestic vessel and equally to seamen and stevedores employed on vessel (Merchant Marine Act of 1920, § 33; 46 USCA § 688; 46 USCA § 713).

Merchant Marine Act of 1920, § 33 (46 USCA § 688), giving seamen right of action at law for damages for injuries in course of employment, is limited to injuries sustained on domestic vessels, irrespective of nature of service, and remedy is available on equal terms to seamen and stevedores who are employed at work on vessel, in view of U. S. R. S. § 4612 (46 USCA § 713).

4. Admiralty 21-Statutory remedy for death of stevedore from injuries during employment on steamship in navigable waters held not supplanted by Workmen's Compensation Act (Laws N. J. 1848, p. 151; Laws N. J. 1911, p. 134, as amended by Laws N. J. 1913, p. 302).

Recovery under statute of New Jersey adopted in 1848 (P. L. p. 151), for death of stevedore resulting from injuries sustained on steamship in navigable waters held not supplanted by New Jersey Workmen's Compensation Act (Laws N. J. 1911, p. 134, as amended by Laws N. J. 1913, p. 302), so as to require dismissal of complaint under Civil Practice Rule 107, subd. 2.

5. Admiralty 20, 21-Legislature cannot substitute workmen's compensation for right of seaman or his survivors to damages under maritime law.

Legislature has no power to substitute system of workmen's compensation for right of action for damages for injuries to seaman given under maritime law or for right of action by seaman's survivors.

6. Admiralty 21-As regards applicability of state statute, death of stevedore on land held immaterial, where injuries occurred on steamship in navigable waters (Laws N. J. 1848, p. 151).

In action for death of stevedore resulting from injury suffered during employment on steamship in navigable waters, under statute of New Jersey adopted in 1848 (P. L. p. 151), awarding remedy of damages, where negligence results in death, it was immaterial that seaman's death occurred on land.

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Harold R. Medina, Edward Gluck, and Joseph Levy, all of New York City, for appellant.

Charles B. McLaughlin, of New York City, for respondents.

CARDOZO, C. J. Plaintiff, an administrator, brings this action against F. Jarka Company, Inc., a corporation carrying on the business of master stevedores, to recover damages for the death of Anthony Resigno, his son. Anthony Resigno, a stevedore employed by the defendant, was working, when his injuries were suffered, on the steamship Hannover in navigable waters at Hoboken, N. J. The steamship Hannover is owned by the North German Lloyd, and flies the flag of Germany. Plaintiff alleges that the Jarka Company, the employer, was negligent in omitting to provide his son with a safe place of work and with competent fellow servants as well as in other particulars. The employer moves to dismiss the complaint under Civil Practice Rule 107, subdivision 2, upon the ground that the Workmen's Compensation Act of New Jersey (Laws N. J. 1911, p. 134, as amended by Laws N. J. 1913, p. 302) supplies an exclusive remedy. The plaintiff founds his right of action, first, upon the act of Congress, commonly known as the Jones Act (Act of June 5, 1920, 41 Stat. c. 250, pp. 988, 1007, § 33), and, if that be deemed inapplicable, upon a statute of New Jersey, adopted in 1848, awarding the remedy of damages where negligence results in death. (1) "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the

case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." 3 Mason's U. S. Code, p. 3273, § 688 (46 USCA § 688).

The foregoing section (33) is part of a statute entitled "An act to provide for the pro motion and maintenance of the American

Marchant Marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes." 41 Stat. 988. Another section (39 [46 USCA § 889]) is to the effect that the act "may be cited as the Merchant Marine Act 1920."

Section 33, above quoted, is an amendment of section 20 of an act of March 4, 1915 (38 Stat. c. 153, p. 1164; Panama R. R. Co. v. Johnson, 264 U. S. 375, 389, 44 S. Ct. 391, 68

L. Ed. 748). The act last mentioned is entitled "An act to promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to relation thereto, and to promote safety at secure the abrogation of treaty provisions in

sea."

United States Revised Statutes, some of It amends divers provisions of the which are again amended by the act of 1920, and also divers provisions of the act of De

the laws relating to American Seamen, for cember 21, 1898, entitled "An act to amend the protection of such seamen, and to promote commerce." It includes a new section, numbered 20 (the parent of the present section 33) which provides:

"That in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held

to be fellow servants with those under their authority."

[1, 2] We hold that section 33 of the Merchant Marine Act of 1920, like its parent, section 20 of the act of 1915, is to be limited to seamen at work upon domestic vessels. We do not doubt the power of Congress to give a broader remedy. Irrespective of the nationality of the vessel, the remedy may be extended to any one who is injured within the territory of our waters. We are unable to convince ourselves that the power has been exercised. The section now before us is to be read in the setting of other acts and sections. So read, it is not susceptible of extension to any vessels but our own. As to these, it applies both at home and on the seas. At home and on the seas they are subject to the power of our government. No such range of power exists in respect of foreign vessels. Power as to these is territorial and local. Congress did not intend to give a remedy for injuries suffered

(162 N.E.)

on the high seas aboard a vessel of another flag. Jackson v. Archimedes (Jan. 3, 1928) 275 U. S. 463, 48 S. Ct. 164, 72 L. Ed. -; American Banana Co. v. United Fruit Co., 213 U. S. 347, 357, 29 S. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047. We see no token of an intention to change the class of vessels with changes of locality. The act, when read in its setting, is true to its title, wherein its primary purpose is defined as the promotion and maintenance of the American Merchant Marine. Cf. Patterson v. The Eudora, 190 U. S. 169, 172, 23 S. Ct. 821, 47 L. Ed. 1002. It is not to be extended by words of general application to shipping not our own. The Pinar Del Rio (C. C. A.) 16 F.(2d) 984; affirmed by the United States Supreme Court May 14, 1928, 277 U. S. 151, 48 S. Ct. 457, 72 L. Ed. without passing on this question; The Falco (C. C. A.) 20 F.(2d) 362, 364.

Cf.

A reading of related sections reinforces this conclusion. When foreign vessels are brought within the range of their provisions, the extension is express. There is no resort to doubtful inference. This is true of the Revised Statutes. See, e. g., §§ 4510, 4530, 4607, 4612 (46 USCA §§ 562, 597, 709, 713); The Elswick Tower (D. C.) 241 F. 706. It is true of the act of 1915. See, e. g., sections 14, 16 (22 USCA § 258; 46 USCA § 222). It is true of the act of 1920. See, e. g., section 30, subsection P. (46 USCA § 971); sections 31, 32, 34 (46 USCA §§ 597, 599). Section 31 makes provision for the payment of part of the wages earned by seamen on board a vessel of the United States at ports where the vessel arrives. There is express statement that "this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement." The debates in the Congressional Record quoted in the briefs of counsel have relation to this section. They do not touch the case at hand. Section 32 makes it unlawful to pay wages in advance. Again there is. provision that the section shall apply to foreign vessels in our waters. Jackson v. Archimedes, supra. Next in order is section 33, the one before us for construction; it significantly omits an equivalent extension. "A few words would have stated that intention, not leaving such an important regulation to be gathered from implication." Jackson v. Archimedes, supra, quoting Sandberg v. McDonald, 248 U. S. 185, 39 S. Ct. 84, 63 L. Ed. 200. Congress had no difficulty in making its meaning plain when extension was desired. Its silence is the more telling when contrasted with its utterance.

Another signpost of intention is yet to be considered. As if to clinch the meaning, the

chapter of the United States Code embodying the statutes in respect of merchant seamen ends with a section which has the label "Definitions." "In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the 'master' thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a 'seaman.'" U. S. Code, § 713, c. 18, title 46; formerly U. S. R. S. § 4612. We cannot read this provision except as a statement that the intention of the Congress is to deal with domestic vessels and with those who work aboard them. The Elswick Tower, supra, and cases there cited. We do not ignore the plaintiff's argument that section 713 of the United States Code, being substantially a re-enactment of United States Revised Statutes, section 4612, is to be limited to those sections of the chapter which were contained in the Revised Statutes before they were gathered into the Code. Cf. Mason's U. S. Code, vol. 1, p. 1 (1 to 4 USCA p. 3). Of these, the present section (section 33 of the act of 1920, now section 688 of the Code) is not one. Even if this be so, the definition has significance. The act of 1920 did amend many provisions of the Revised Statutes, as also did its parent, the act of 1915. The provisions so amended are cognate in spirit and effect to the section now before us. We impute to Congress a willingness to mask its true intentions if we say that the acts of 1915 and 1920 were framed throughout their main provisions in subjection to the statutory definitions of "master" and "seaman," but that a single section was expected without hint of such a purpose to bear a broader meaning. The conclusion is unreasonable that the lawmakers, designing an extension, would have left us thus to struggle with silence and obscurity. A new basis of liability, a new principle of jurisdiction, will not be held to have been interjected without warning or by uncertain implication. If considerations of convenience or policy can be marshaled in aid of a contrary conclusion, there are none of them so clear and unequivocal as to have controlling value. The development of our merchant marine requires, it is said, that foreign and domestic owners compete on a basis of equality. Equality is impracticable in respect of this provision, however we construe it, for jurisdiction is lacking to define the law of remedies for foreign vessels on the seas. In the long run, the development of our merchant marine may be fostered rather than impeded by holding out to seamen employed upon our ships the inducement of a protection withheld by our

competitors. The appraisal of such tendencies is matter for the lawmakers. "That which in its immediacy is a discouragement may be part of an encouragement when seen in its organic connection with the whole." Holmes, J., in Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U. S. 87, 100, 48 S. Ct. 100, 105, 72 L. Ed. ―. We see no reason for a departure from the definitions of a glossary embodied in related statutes and framed for the very purpose of helping to stabilize construction.

[3] The court is unanimous in its holding that seamen in the strict or proper sense are without the purview of the act when working upon foreign vessels. Whatever division there is among us has its origin in a supposed distinction between the remedy available to such seamen and that available to stevedores. The suggestion is that, in cases of the latter order, the nationality of the vessel is to be rejected as a test. The judgment of the court is that the test does not vary with the nature of the service. Under the ruling of the Supreme Court (International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157), a stevedore is in as good a position as if he were a seaman proper. We are unable to satisfy ourselves that under that decision, or by force of any consequences legitimately flowing from it, his position is even better. The fact is recalled to us in Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, that in bygone days the work of loading and unloading was done by memIbers of the crew. We think the effect of International Stevedoring Co. v. Haverty is merely to put a stevedore on the same footing as the crew for the purpose of applying the statutory remedy. True, indeed, it is that the remedies available to a stevedore may thus vary from day to day, and even from hour to hour, with the location of his labor. Distinctions of that order are not unknown to the law. They have been made familiar by rulings under the Workmen's Compensation Acts (Consol. Laws, c. 67) by which a longshoreman is given a remedy if working on a boat and denied the same remedy if working on a dock. State Industrial Commission of State of New York v. Nordenholt Corporation, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013. So under the Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665) of Congress. The servant gains a remedy or loses one according to the particular service he is rendering at the very moment of the injury. Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941. The incongruity is no greater here. Congress did not

mean that, if a stevedore and a member of a crew were injured on the same vessel as a result of the same casualty, the stevedore should have a remedy and the seaman none. The act was intended to apply to both or neither.

2. The federal act failing, there remains the statute of New Jersey which gives a cause of action for damages to appointed representatives where negligence results in death.

[4, 5] The Appellate Division held that the remedy under that act had been supplanted by the adoption in New Jersey of a Workmen's Compensation Act, awarding the usual system of insurance to workmen subject to its provisions. We think the holding is erroneous. Resigno was injured while engaged in maritime work upon navigable waters. There was no power in the Legislature of New Jersey to substitute a system of workmen's compensation for the right of action for damages that was his under maritime law. There was a like defect of power to substitute such a system for the then existing right of action for the use of his survivors. The point was expressly ruled in Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445, 139 N. E. 569; Id., 262 U. S. 756, 43 S. Ct. 703, 67 L. Ed. 1217; cf. Western Fuel Co. v. Garcia, 257 U. S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Washington v. W. C. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646. A different question would be here if the Legislature had attempted to repeal the death statute altogether. What it attempted was "not to abolish every remedy, but to substitute one remedy for another." Warren v. Morse Dry Dock & Repair Co., supra. "To the extent that the substitution of a new remedy is ineffective, the old one survives."

[6] Since the wrong was done upon the waters, the circumstance is unimportant that the death which followed was upon the land. Kursa v. Overseas Shipping Co., 217 App. Div. 775, 217 N. Y. S. 194; U. S. Shipping Board Emergency Fleet Corporation v. Greenwald (C. C. A.) 16 F. (2d) 948.

The judgment of the Appellate Division and that of the Special Term should be reversed, and the motion denied, with costs in all courts.

CRANE, J. (concurring in result). A motion was made by the defendant, F. Jarka Company, Inc., under rule 107, subdivision 2, of the Rules of Practice, for judgment on the

(162 N.E.)

pleading dismissing the complaint upon the burg-Amerikanische Packetfahrt Aktien Gesground that the court did not have jurisdic- ellschaft v. Gye, 207 F. 247, 253 (1913 C. C. tion of the subject of the action. The motion A. 5). was granted, and the judgment of dismissal has been affirmed by the Appellate Division, one of the justices dissenting.

The complaint alleges that the defendant, F. Jarka Company, Inc., is and was a foreign corporation duly organized and existing under the laws of the state of New Jersey, maintaining an office for the regular transaction of business as stevedore in the borough of Manhattan, city and state of New York. Further allegations set forth that F. Jarka Company, Inc., under contract and agreement with the defendant, the North German Lloyd, was engaged in loading and discharging a cargo upon and from the steamship Hannover, lying afloat in navigable waters at a pier at the foot of Sixth street, city of Hoboken, state of New Jersey. The plaintiff's intestate, Anthony Resigno, was in the employ of F. Jarka Company, Inc., as a longshoreman loading and unloading the ship. The complaint then goes on to allege negli gence upon the part of the employer toward this employee, which resulted in his death. It is said that the master failed to provide him with a safe place to work, to furnish him competent fellow servants; failed to warn him of latent and unknown dangers, or to properly instruct him in the performance of his duties a common-law cause of action by a servant against his master. The facts of the accident are alleged, followed by a copy of the law of New Jersey, approved March 3, 1848 (P. L. p. 151), entitled, "An act to provide for the recovery of dámages where the death of a person is caused by wrongful act, neglect or default," the damages being recoverable by the representative of the deceased for the benefit of the widow and next of kin. The courts of this state had jurisdiction of this cause of action, irrespective of federal statutes, and the complaint should not have been dismissed.

The Workmen's Compensation Law of New Jersey did not apply to the case, as the cause of action arose upon the navigable waters of the United States. Danielson v. Morse Dry Dock & Repair Co., 235 N. Y. 439, 139 N. E. 567; Id., 262 U. S. 756, 43 S. Ct. 703, 67 L. Ed. 1217; Washington v. W. C. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646. The fact that Anthony Resigno died on land does not change the admiralty nature of the tort. Kursa v. Overseas Shipping Co., 217 App. Div. 775, 217 N. Y. S. 194; The Chiswick (C. C. A.) 231 F. 452; The Anglo-Patagonian (C. C. A.) 235 F. 92; U. S. Shipping Board Emergency Fleet Corporation v. Greenwald (1927 C. C. A. 2) 16 F.(2d) 918; Ham

162 N.E.-2

As the Workmen's Compensation Act did not apply, an action could be maintained under the New Jersey death statute (2 Comp. St. 1910, p. 1907) for common-law negligence causing death where the tort was committed upon navigable waters, and the state courts would have jurisdiction of the cause. Warren v. Morse Dry Dock & Repair Co., 235 N. Y. 445, 139 N. E. 569; Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210; Kursa' v. Overseas Shipping Co., supra. This complaint, therefore, stated a cause of action. for common-law negligence resulting in death for which the New Jersey statute gave a right of action to the representatives for the benefit of the widow and next of kin of the deceased. Such a cause of action could be maintained in the Supreme Court of New York state, as it had jurisdiction of the parties. For this reason, if no other, the judgments below must be reversed, and the motion denied. It will not do, however, to stop here, as evidently the plaintiff is unable to prove a cause of action without the assistance of the benefits of the federal statute. Act of June 5, 1920; 41 Stat. 1007, c. 250, § 33, which also appears in 3 Mason's United States Code, Ann. of 1926, title 46, e. 18, § 688, and known as section 33 of the Jones Act (46 USCA § 688).

As the deceased was working on a German ship, the Appellate Division has held that he is to be deemed a German seaman, and that the act is intended solely for the benefit of American seamen. Although agreeing with that court that the act was intended solely for the benefit of American seamen, I cannot agree that the deceased was in any sense a part of the crew of the Hannover, and thus a German seaman.

Section 33 of chapter 250 of the Act of June 5, 1920, reads as follows:

"Recovery for Injury to or Death of Seaman. -Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at. law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his

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