Petition for a Writ of Certiorari — Todd Shipyards Corp. v. De Graw

INDEX

Sussecr Inpex

Petition for writ of certiorari:

Summary statement of the matter involved.....

Questions presented ...................00eee,

Statement of the case ........................

Constitutional provisions and statutes involved.

Reasons for allowance of return...............

Brief in support of petition for a writ of certiorari:

Opinion of the court below....................

I nee ee cig gow iG oe Cok aS

Statement of the case........................

ES ee ere ree fot re Cee

(a) Jurisdiction is exclusive in the Federal

Courts under the Maritime Law of

the United States by virtue of Article

III, Section II of the United States

ET ere ee ee ee Pee

(b) The rights and liabilities of the respec-

tive parties were in the purview of

the Longshoremen’s & Harborwork-

ers’ Act, 33 U.S. C. A., 901 et seq... .

NE nk cp ccka Gkpn DLC ANOS aR ME eens

Cases Crrep

American Bonding Co. v. Ottumiva, 137 Fed. 572. ...

American Shipbuilding € Dock Corp. et al. v. Rourke

@ Gone (Sth Cir. 1935) ...... 2... cen.

Baisley Iron Works v. Span, 281 U. 8. 222..........

Continental Casualty Co. v. Lawson, 64 F. (2d) 802. .

Covington v. Bulloch, 126 Ky. 236, 103 S. W. 276....

Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y.

yg SO RR ON rere

Davey v. D. L.@ W. R. R.Co.,105 N. J.L.178.......

Davis v. Dept. of Labor & Industries of Washington,

317 U. S. 249, 63 Sup. Ct. 225....................

—6499

14

ii INDEX

Page

DeBardeleben Coal et al. v. Henderson, 142 F. (2d)

REST Pa eee nat aa pitagtte fhe 27 2 ee PS ere ee

Donnell v. The Starlight, 103 Mass. 227............ 17

Edwards v. Elliott, 88 U. 8. 532, 22 L. Ed. 487...... 15

Ely v. Murray € T. Co., 200 Fed. 368............... 17

Globe Iron Works v. Steamer, 100 Mich. 583, 59

N. W. 247, 43 Am. St. Rep. 423...............--- 15

Goodyear Machinery Co. v. Jackson, 112 Fed. 146... 17

Gonsalves v. Morse Dry Dock, 226 U.S. 171........ 10

Grant-Smith-Porter Ship Co. v. Rohde, 257 U. S. 469,

42 Sup. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008..... 15, 23

Great Lakes Engineering Co. v. Kierejewski, 261

REGRESS ya reed ary ae ere aaa 9, 10

Homer v. The Lady of the Ocean, 70 Me. 350........ 17

Knickerbocker Ice Co. v. Stewart, 253 U. 8. 149, 40

Sup. Ct. 438, 64 L. Ed. 834,11 A. L.R.1140....... 21, 22

LaCass v. Great Lakes Engineering Co., 219 N. W.

NINE RO ee Rens Se er eta eae wh ase 44's 20

Massman Construction Co. v. Bassett, 30 Fed. Supp.

EEE ee i da eek aks oa hae Oe ea

March v. Vulckin Works, 102 N. J. L. 337........... 15

Messel v. Foundation Co., 274 U. S. 427, 47 Sup. Ct.

RS, Were ee Te Ts el als wy he Wa O88 KI 26

Miller’s Indemnity & Underwriters v. Braud, 270

oe € © {SS Serer rere 25

New Bedford Drydock Co. v. Purdy, 258 U.S. 96.... 10,15

North Pacific Steamship Co. v. Hall Bros., 249 U.S.

oe ES rrr eee eee 15

Norton v. Warner Co., 321 U.S. 565, 88 L. Ed. 935... 17

O’Hara’s Case, 248 Mass. 31, 142 N. E. 844......... 15

Parker v. Motor Body Sales, 314 U.S. 244........ 10, 27, 29

Robbins Dry Dock & Repair Co. v. Dahl, 266 U. S.

eee a i ew iahy cease bon ee Y 10

Rogisch v. Union Dry Dock & Repair Co., 106 N. J.L.

Ee ee oe ry ke ae ad ome 15

Royal Indemnity Co. v. Puerto Rico Cement Corp.,

SS ae ere ee Terre ee eee 32

Southern Pacific Co. v. Jensen, 24 U. S. 207, 37 Sup.

Ce ee oe Pane engewiy ox ea een Se

Smith & Son v. Taylor, 48 Sup. Ct. 228............. 26

INDEX ili

Page

Spencer Kellogg € Sons, Inc. v. Hicks, 275 U.S. 502. 9, 22

Thames Towboat Co. v. The Francis McDonald, 254

Ty. © Ba Ge ey Ge Oe ceo eens 15

The Conoy, 267 Wed. G43... ..... «2... 2 eee eee es. 17

The Harvard, 270 Fed. 668 ..................5.... 17

py ei ee, Se Se 17

The Mountaineer-Maine Hdwe. Co. v. Halfhill Pack-

ing Corp., et al., 286 Fed. 914..............--..-. 18

The Pinthis, 286 Fed. 124...............-.--..055- 16

The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8. . 15

The Showboat, 47 F. (2d) 286..................... 18

The Susquehanna, 267 Fed. 811.............--.... 17

U. S. Casualty Co. v. Taylor, 64 F. (2d) 521, 54 Sup.

ee RG aah ee 31

Washington v. W. C. Dawson & Co., 264 U. S. 219,

ry Se pe rerre ps petrr rive eres ee 23

Statutes CITED

Longshoremen’s and Harbor Workers’ Compense-

tion Act, 33 U. S. C. A. 901 et seq............... 2, 4, 6, 7

New Jersey Workmen’s Compensation Act, N. J. Re-

vised Statutes 1937, Sec. 34: 15-1 et seq........... 4,8

Texas Compensation Law—Vernon’s Ann (iv. St.

1925, Articles 8306-8309............. eee eee kee 25

U. S. Code Annotated: eciee

.. 2 % "i SARI Ee rer err reer 7

, 2 RE rernr er rer ee ree ee 8

gg 8 ee eer ray eee ore 14

U. S. Constitution, Article 1, Sec. 8................ 7

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 458

TODD SHIPYARDS CORPORATION,

Petitioner, Appellant Below,

vs.

HARVEY DE GRAW,

Respondent, Appellee Below

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the Umted States:

1. This is a petition for a writ of certiorari to review

the judgment of the New Jersey Court of Errers and Ap-

peals dated June 5, 1946, affirming the judgment of the

Supreme Court of New Jersey (Order for Affirmance and

Remittitur, R. f) dismissing a writ of certiorari to said

New Jersey Supreme Court (Writ of Certiorari, R. 1)

and affirming the judgment of the Hudson County Court of

Common Pleas (Judgment, R. 22) which had decided on

appeal from the Workmen’s Compensation Bureau that the

Workmen’s Compensation Bureau of the Department of

1b

ee a

Labor’ of the State of New Jersey had jurisdiction to hear

and determine this case on the sole question presented, and

contrary to the defenses interposed, motions made and

exceptions taken by the petitioner to the effect that the

Courts of the State of New Jersey were without jurisdic

tion in the matter and that same was cognizable under the

Federal Statute in such case made and provided (33 U. S.

C. A. 901 et seg.) and the provisions thereof, also known

as the Longshoremen’s and Harbor Worker’s Compensa-

tion Act.

9. A certified transcript of the record in the case includ-

ing the proceedings in the New Jersey Court of Errors and

Appeals is furnished herewith in compliance with the Rules

of this Honorable Court.

I

Summary Statement of the Matter Involved

1. Petitioner, a corporation of the State of New York,

authorized to do business in the State of New Jersey

is engaged in the repair of ships in the City of Hoboken,

County of Hudson of said State bordering on the navigable

waters of the Hudson River. Harvey DeGraw engaged

as a marine pipefitter by the petitioner brought an action

in the Workmen’s Compensation Bureau of the Depart-

ment of Labor of the State of New Jersey alleging an in-

jury arising out of and during the course of his employ-

ment with your petitioner while working on board a freight

ship which was afloat in said Hudson River and being con-

verted into a naval troopship. The defense in the answer

thereto, set forth that said Department of Labor of the

State of New Jersey was without jurisdiction and that same

was solely within the jurisdiction of the Federal Statute

known as the Longshoremen’s and Harbor Worker’s Com-

pensation Act (33 U. S. C. A. 901 et seqg.). At the trial

3

of the issue in the State Bureau, the Petitioner moved to

dismiss on the ground of lack of jurisdiction in the State

Courts both at the close of the claimant’s case and again

at the end of the trial, both of which motions were denied

and were followed by a judgment determining that claim-

ant’s work was purely local and not maritime in nature

and within the purview of the Workmen’s Compensation

Laws of the State of New Jersey.

2. The petitioner appealed from this judgment to the

Hudson County Court of Common Pleas of said State of

New Jersey on the sole question of lack of jurisdiction of

the Courts of said State and that same was solely a ques-

tion for Federal Jurisdiction and upon oral argument and

briefs said judgment below was affirmed; application was

then made to the New Jersey Supreme Court for Writ of

Certiorari and on similar presentation of oral argument

and briefs on the sole question of jurisdiction, said Writ

was dismissed and the matter was held within the purview

of the Workmen’s Compensation Act of the State of New

Jersey.

3. Appeal therefrom was taken by your petitioner to

said New Jersey Court of Errors and Appeals in the

last resort in all causes and after oral argument and sub-

mission of briefs, said Court of Errors and Appeals affirmed

the decision of the Courts below and in so doing passed

judgment upon, and gave decision in, a question solely Fed-

eral in nature and therefore without its jurisdiction.

IT. Questions Presented

The questions presented are:

1. Whether the Workmen’s Compensation Law of New

Jersey is applicable to an injury on board ship or whether

jurisdiction is exclusively in the Federal Courts under the

4

Maritime Law of the United States by virtue of Article Ill,

section 2 of the United States Constitution.

2. Whether the rights and liabilities of the respective

parties are within the purview of the Federal Longshore-

man’s or Harbormen’s Act, Title 33 U. S. C. A. 901 et seq.

or under the New Jersey Compensation Act, N. J. R. Ss.

34: 15-1 et seq.

3. Whether repairs involving the conversion of a com-

missioned freighter from one maritime use to another

(U. S. Naval use) make a contract pertaining thereto one

of original construction instead of repair and therefore,

out of the jurisdiction of the Federal Courts under the

maritime law or under the Federal Longshoremen’s and

Harbormen’s Act.

III. Statement of the Case

On January 20th, 1944, Todd Shipyards Co. was engaged

in the business of repairing and converting ships for naval

use in its shipyard in Hoboken, N. J. On that date Harvey

DeGraw employed by Todd Shipyards Co. as a marine

pipefitter received a minor injury while at work on the

S. S. Fred Morris. Todd Shipyards was not engaged in any

original construction of ships (R. 95). The Todd Shipyard

is located on the Hudson River—navigable waters of the

United States. All of the Todd Shipyards contracts are

strictly maritime in nature, having to do with the repair

and alteration or conversion of commissioned ships owned

by third parties. The contracts of employment are all

specialized, as for example, in this case a marine pipe-

fitter, and are all in the furtherance of the specialized

corporate purpose which as stated is maritime in nature;

that is, the repair and alteration or conversion of commis-

sioned vessels or ships. The performance of the contract of

5

employment takes place on ships or vessels which are afloat

in the navigable waters of the Hudson River (R. 68). The

S. S. Fred Morris, a commissioned vessel was owned and

operated by Lykes Bros. (R. 88, 89). The S. S. Fred

Morris came to the Todd Shipyards under its own power

where it was drydocked for the purpose of a hull sur-

vey, to determine whether she could be converted from a

freighter to an attack transport for the United States

Navy. The survey was made by the War Shipping Ad-

ministration, United States Navy and the Todd Shipyard

Corporation, all of whom were unrelated units to each

other. The War Shipping Administration came into being

in 1941 as an Emergency Shipping Agency and as an ad-

junct of the United States Maritime Service. This same

Administration handled merchant cargo vessels. It had

nothing to do with war ships. The S. S. Fred Morris

was under the supervision of this Agency. The ship was

only drydocked for a short time within which time the hull

survey was made (R. 90), and thereafter at all times while

in the shipyard remained berthed (R. 102) and afloat in the

Hudson River, moored to the dock. DeGraw was employed

for the purpose of this conversion according to plans and

specifications and the work he was doing at the time of his

injury was in furtherance of same (R. 99 & 100). There

were no changes made to the motors or propulsion ma-

chinery, the vessel was capable of getting out of the yard

on twenty-four hours notice which was fueling time (R.

104). Some pipe and oil lines had to be changed (R. 105),

to give the ship greater cruising range and greater oil

carrying capacity (R. 110, 111), but none of this was done

with reference to any pipe lines to the main engine. The

fact is there was no repair work or conditioning done to

any of the motors of this vessel. The hull was at no time

opened, but merely reinforced by use of additional doublers

6

(R. 111); no part of the ship or hull was torn down in any

way with relation to this reinforcement of the hull (R. 112).

Aside from living accommodations for men with attendant

facilities (R. 112) there were no other internal changes.

The three different navigation and steering mechanisms

were intact at all times and unchanged. When the ship

was torn down to its greatest degree it could have been

operated under its own power by the mere addition of

fuel oil which had been removed in accordance with safety

rules of the U. S. Coast Guard (R. 114, 115 and 118). When

the reconversion was complete the physical layout of the

vessel remained unchanged, same horsepower, same length

and same size (R. 112), in other words, at no time did she

ever lose her identity as a complete vessel. When the work

on the S. S. Fred Morris was complete the ship left

under her own power and under her own steam and operated

by her owner’s crew (R. 94), that is to say, she came into

the shipyard as a private vessel commissioned for sea duty

and left the Todd Shipyards in the same way.

IV. Constitutional Provisions and Statutes Involved

LonGSHOREMEN’s AND Harsor WorKER’s CoMPENSATION Act

Title 33, U. S. C. A. 901 et seq., Section 3(a).

‘Compensation shall be payable under this Act in

respect of disability or death of an employee, but only

if the disability or death results from an injury 0c-

curring upon the navigable waters of the United States

(including any dry dock) and if recovery for the dis-

ability or death through workmen’s compensation pro-

ceedings may not validly be provided by State law.

: * >)

7

Title 33, U. S. C. A. 901, et seg., Section 4(a).

‘«Every employer shall be liable for and shall secure

the payment to his employees of the compensation pay-

able under sections 7, 8 and 9. * oe

Title 33, U. S. C. A. 901 et seq., Section 5.

‘*The liability of an employer prescribed in section

4 shall be exclusive and in place of all other liability

of such employer to the employee, his legal represen-

tative, husband, or wife, parents, dependents, next of

kin, and anyone otherwise entitled to recover damages

from such employer at law or in admiralty on account

of such injury or death, except that if an employer fails

to secure payment of compensation as required by this

Act, an injured employee, or his legal representative in

case death results from the injury, may elect to claim

compensation under this Act, or to maintain an action

at law or in admiralty for damages on account of such

injury ordeath * * *”

United States Constitution (Article 1, Section 8) :

The Congress shall have power: * * *

To regulate commerce with foreign nations, and

among the several States and with the Indian Tribes;

United States Constitution, Article 3, Section 2:

The Judicial Power shall extend to all cases in law

and equity, arising under this Constitution, the laws of

the United States and treaties made, or which shall be

made under their authority; to all cases of admiralty

and maritime jurisdiction;

Title 28, U. S. C. A. Section 13 (Judicial Code, Section 9)—

Courts open as Courts of Admiralty and equity.

The district courts, as courts of admiralty, and as

courts of equity, shall be deemed always orp»: for the

purpose of filing any pleading, of issuing an» eturning

ey |

mesne and final process and of making and directing

all interlocutory motions, orders, rules and other pro-

ceedings preparatory to the hearing, upon their merits,

of all causes pending therein. Any district judge, may

upon reasonable notice to the parties, make, direct and

award, at chambers or in the clerk’s office, and in vaca-

tion as well as in terms, all such process, commissions,

orders and other proceedings whenever the same are

not grantable of course, according to the rules and

practice of the Court (R. S. 574, March 3, 1911, C 231

9, 36 Stat. 1088).

Title 28 U. S. C. A. Section 41. (Judicial Code, Section

24, as amended).

The District Courts shall have original jurisdiction as

follows: * * °

(3) Admiralty causes, seizures and prizes. Third

of all civil causes of admiralty and maritime jurisdic-

tion, saving to suitors in all cases the right of a common-

law is competent to give it and to claimants for com-

pensation for injuries to or death of persons other than

the master or members of the crew of a vessel then

rights and remedies under the workmen’s compensa-

tion law of any State, District, Territory, or possession

of the United States, which rights and remedies when

conferred by such law shall be exclusive at ade

New Jersey Workman’s Compensation Act, N. J. R. S.

34:15-1 et seq.

Section 7

When employer and employee shall by agreement,

either express or implied, as hereinafter provided, ac-

cept the provisions of this article compensation for

personal injuries to, or for the death of, such employee

by accident arising out of and in the course of his

employment shall be made by the employer without

regard to the negligence of the employer, according to

the schedule contained in sections 34:15-12 and 34:15-13

9

of this title in all cases except when the injury or death

is intentionally self-inflicted, or when intoxication is

the natural and proximate cause of injury, and the

burden of the proof of such fact shall be upon the

employer.

Section 8

Such agreement shall be a surrender by the parties

thereto of their rights to any other method, form or

amount of compensation or determination thereof than

as provided in this article and an acceptance of all

the provisions of this article, and shall bind the em-

ployee himself and for compensation for his death shall

bind his personal representatives, his widow and next

of kin, as well as the employer, and those conducting

his business during bankruptcy or insolvency.

Section 9

Every contract of hiring made subsequent to the

fourth day of July, one thousand nine hundred and

eleven, shall be presumed to have been made with

reference to the provisions of this article, and unless

there be as a part of such contract an express state-

ment in writing prior to any accident, either in the

contract itself or by written notice from either party

to the other, that the provisions of this article are not

intended to apply, then it shall be presumed that the

parties have accepted the provisions of this article and

hare agreed to be bound thereby * ° *

V. Reasons for Allowing the Writ

1. The New Jersey Court of Errors and Appeals decided

the rights and liabilities of the respective parties were not

to be governed by the Maritime Law of the United States

pursuant to Article 3, Section 2 of the United States Con-

stitution. The decision is in conflict with the decision of

this Honorable Court in the case of : Southern Pacific Co. v.

Jensen, 244 U. S. 205; Spencer Kellogg & Sons Inc. v. Hicks,

275 U. S. 502; Great Lakes Engineering Co. v. Kierejewsk,

2b

10

261 U. 8. 479; Robbins Dry Dock & Repair Co. v. Dahl, 266

U. 8. 449; John Baisley Iron Works v. Span, 281 U. S. 222,

and other representative cases and authorities cited in the

argument which hold to the contrary.

2. The New Jersey Court of Errors and Appeals decided

the rights and liabilities of the respective parties were not

within the purview of the Federal Longshoremen’s and

Harbormen’s Act. The decision of the Court of Errors and

Appeals conflicts with the decision of this Honorable Court

in the case of: Baisley Iron Works v. Span, 281 U. S. 222;

Parker v. Motor Body Sales, 314 U. S. 244; Gonsalves v.

Morse Dry Dock, 226 U. S. 171, and other representative

cases and authorities cited in the argument which hold to the

contrary.

3. The New Jersey Court of Errors and Appeals decided

that repairs involving the conversion of a commissioned

freighter from one maritime use to another made the work

involved therein work of original construction instead of

repair and therefore out of the jurisdiction of the Federal

Court under the Maritime Law or under the Federal Long-

shoremen’s and Harbormen’s Act. The decision of the

Court of Errors and Appeals conflicts with the decision

of this Honorable Court in the case of: New Bedford Dry-

dock Co. v. Purdy, 258 U. S. 96, and other representative

cases and authorities cited in the argument which hold

to the contrary.

Wuenrerore your petitioner prays that a Writ of Cer-

tiorari issue out of and under the seal of this Henorable

Court, directed to the New Jersey Court of Errors and

Appeals, commanding that Court to certify and to send to

this Court for its review and determination on a day cer-

tain to be therein named a full and complete transcript

of the record and all proceedings in the case entitled on

11

this docket, ‘‘No. 32, February Term, 1946. Harvey De-

Graw, Defendant-Respondent, v. Todd Shipyards Co.,

Prosecutor-Appellant. On appeal from the New Jersey

Supreme Court’’, and that the said judgment of the said

New Jersey Court of Errors and Appeals may be reviewed,

determined and reversed by this Honorable Court, as pro-

vided for by the Statutes of the United States and for

such cther further relief as to this Court may seem proper.

Topp Surpyarps Corp.,

Water H. Jones,

Attorney for and of Counsel with Petitioner.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 458

TODD SHIPYARDS CORPORATION,

Petitioner, Appellant Below,

vs.

HARVEY DE GRAW,

Respondent, Appellee Below

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

I

Opinion of the Court Below

The Opinion of the New Jersey Court of Errors and

Appeals (R., last pg), is reported in 47 Atl. 2nd, pg.

338. The Opinion of the Supreme Court of New Jersey

(R. d) is reported in 44 Atl. 2nd 513, 133 N. J. L.

402. The Opinion of the Court of Common Pleas of New

Jersey, Hudson County (R. 22) is reported in 43 Atl. 2nd,

879, 23 N. J. Mise. 298. The Opinion of the Workmen’s

Compensation Bureau of the New Jersey Department of

Labor (R. 13) is not reported.

14

I

Jurisdiction

(a) The jurisdiction of this Court is invoked under Title

28, United States Code Annotated, Section 350.

(b) The revised rules of this Honorable Court promul-

gated in accordance therewith.

(c) The judgment of the New Jersey Court of Errors

and Appeals which petitioner seeks to have reviewed was

dated May 20th, 1946 and actually filed and entered on

June 5th, 1946.

Til

Statement of the Case

A sufficiently full statement of the case has been given in

the Petition under Titles I and III, and, in the interest

of brevity is not repeated here.

ARGUMENT

Pornt I

Jurisdiction is exclusive in the Federal Courts under the

Maritime Law of the United States by virtue of Article ITI,

Section II of the United States Constitution.

The New Jersey Court of Errors and Appeals in denying

the Federal jurisdiction speaking of the repairs on the ship

in the instant case said:

‘‘From this recital, it is apparent that the work be-

ing done was far more than is comprehended within the

term of repairs, but was a conversion, which, when

completed, would change the character of the vessel.

Furthermore the work that was being performed by

15

DeGraw consisted in removing a section of a pipe line.

This work had no direct relation either to navigation

or commerce, and brings this case clearly within the

line of cases exemplified by Grant Smith-Porter Ship

Co. v. Rohde, 257 U. 8. 469 and Sultan Railway and

Timber Co. v. Department of Labor, 277 U. 8. 135.”’

* @ *

There are no provisions in the New Jersey Workmen’s

Compensation Act relating to maritime or other special

classes of workers. The Act provides for elective com-

pensation on an express or implied basis on all contracts

of hire. See N. J. R. S. 34:15-7-8-9.

The Hudson River is a navigable water within the juris-

diction of the admiralty courts. The petitioner’s slip as far

as it is used in maritime work and maritime transactions

therein, are subject to maritime law. The Robert W. Par-

sons, 191 U. S. 17, 24 S. Ct. 8, 48 L. Ed. 73; North Pacific

Steamship Co. v. Hall Bros. Marine Railway & Shipbuilding

Co., 249 U. 8. 119, 30 8S. Ct. 221, 63 L. Ed. 510; O’Hara’s

case, 248 Mass. 31, 142 N. E. 844; Damielsen v. Morse Dry

Dock & Repair Co., 235 N. Y. 439, 139 N. E. 567.

The construction of a new vessel is a non-maritime con-

tract. The repair of a once completed ship is a maritime

contract. Edwards v. Elliott, 88 U. S. (21 Wall.) 532,

22 L. Ed. 487; Thames Towboat Co. v. The Francis McDon-

ald, 254 U. S. 248, 41 S. Ct. 65, 65 L. Ed. 245; Globe Iron

Works v. Steamer, 100 Mich. 583, 59 N. W. 247, 43 Am.

St. Rep. 423; Danielsen v. Morse Dry Dock & Repair Co.,

235 N. Y. 439, 139 N. E. 567; March v. Vulckin Works, 102

N. J. L. 337; Davey v. D. L. & W. R. R. Co., 105 N. J. L.

178; Rogisch v. Union Dry Dock and Repair Co., 106

N. J. L. 591.

The work being done on the S. S. Fred Morris was re-

pairing, not constructing. New Bedford Dry Dock Co. v.

Purdy, 258 U. S. 96, 42 S. Ct. 243, 66 L. Ed. 482, and note.

| ee:

=

16

At page 100, of that opinion, Justice McReynolds adopted

the language of another opinion previously rendered as

follows:

‘‘And generally, it may be held as a principle, that,

where the keel, stem, sternposts and ribs of an old

vessel, without being broken up and forming an intact

frame, are built upon as a skeleton, the case is one of

an old vessel rebuilt and not a new vessel. Indeed,

without regard to the particular parts reused; if any

considerable part of the hull and skeleton of an old

vessel in its intact condition, without being broken up,

is built upon, the law holds that in such a case it is the

old vessel rebuilt and not a new vessel.’’

The Purdy case involved the conversion of a carfloat with-

out motive power and steering gear into a steamer, and it

was held that the contract for such work was not one of

construction but was a mere repair. The footnote, on

page 2 of the Purdy opinion refers to ‘‘The Harvard”’

270 Fed. 668, wherein it was held that a contract covering

work and materials while a vessel was afloat in repair,

altering, enlarging and improving her carrying capacity,

in order to fit her for a new service, is of a maritime nature,

etc. The footnote following the above cites ‘‘The Iris,’’

100 Fed. 104, holding that labor and materials necessary

to adapt a sea-going steamer for a trade for which she had

not originally been designed, are for repairs and not for

construction, and are maritime contracts within the ad-

miralty jurisdiction.

The Purdy case was followed in The Pinthis (Cir. Ct.

Appeals, 3rd Cir.), 286 F. 124, wherein the Court held that

The Pinthis, when launched, became a vessel and as such

was a subject of maritime jurisdiction. The Court, at page

124, stated:

‘Indeed it will be apparent that if we depart from

the certainty of making a completed vessel the stand-

17

ard and enter the field of extras, spare parts, inci-

dental equipment and say that such things complete

the vessel, we are giving up certainty of the standard of

completion for the standard of mere speculation. * * °

An automobile is completed when it workably moves

out of the shop by its own power and equipment.

Prudence and foresight suggest it be equipped with

extra tubes and tires; but, when the machine is equipped

with such extra tires they are not the factors of original

construction, but of anticipated and prudent reserve.

So viewing the extra engine parts furnished in this

case we are of the opinion the Court below, rightly held

they were not elements of original construction.’’

It has been held that a barge, having no motor power

of its own, is a vessel within the meaning of the Longshore-

men’s Act, since it is a means of transportation. (Norton

vy. Warner Co., 321 U. 8. 565, 88 L. Ed. 935.)

In Massman Construction Company v. Bassett, 30 Fed.

Supp. 813, at page 815, the Court said:

«* * © The term ‘vessel’ is used in its mari-

time sense as comprehending any sort of craft capable

of being used as a means of transportation on water.

The management of the vessel, the loading of same, the

care of its equipment and cargo, the performance of

any task essential to enable it to accomplish its pur-

pose upon navigable waters are within the term ‘mari-

time employment.’ ”’

As long as a vessel preserves her identity, any work done

in the way of alterations, enlargement or improvement, falls

under the head of repairs—28 Cyc. 764, Hughes, Admiralty,

Ond Ed. 109; The Susquehanna, 267 Fed. 811; The Iris, 100

Fed. 104; The Harvard, 270 Fed. 668; Ely v. Murray &

T. Co., 200 Fed. 368; The Convoy, 257 Fed. 843; Homer v.

The Lady of the Ocean, 70 Me. 350; Donnell v. The Starlight,

103 Mass. 227; Good Year Shoe Machmery Co. v. Jackson,

18

112 Fed. 146; Covington v. Bullock, 126 Ky. 236, 103 S. W.

276; American Bonding Co. v. Ottumiva, 137 Fed. 572.

The Mountaineer-Maine Hardware Co. v. Halfhill Pack-

ing Corp., et al. (Cir. Ct. Appeals, 9th Cir.—1923), 286 F.

914, is to the same effect.

In American Shipbuilding & Dock Corp. et al. v. Rourke

é& Sons (Cir. Ct. Appeals, 5th Cir.—1925), a concrete barge

which had been built and launched but had never been

engaged in commerce, being refitted with loading and un-

loading apparatus, was held to be a completed vessel and

within admiralty jurisdiction.

In The Showboat (District of Massachusetts—1930), 47

F. 2nd 286, a five-masted schooner tied to a wharf and used

for a restaurant and dancing, but equipped for sailing and

being towed, was held a ‘‘vessel’’ within admiralty juris-

diction. The Court on page 287 said:

‘‘Her mooring lines and chains can be readily cast

off; and the electric wires are so fitted as to be easily

attachable. * * * She was still a vessel within the

admiralty jurisdiction.”’

A case very analogous to the case at bar, but in which

the repairs and conversion were made to a far greater ex-

tent, is Lake Washington Shipyards, et al. v. Brueggeman,

et al. (Dist. Ct., W. D. Washington, N. D.—1931), 56 F. 2nd

656, in which case the defendant employer contracted to

adapt the passenger steel steamship Iroguois to the ad-

ditional use of vehicle transportation. To such end as the

principal object, the ship was placed on ways to the main

deck, stripped of housings, the deck torn out, and the in-

terior ‘“‘guttered”’ to within 20.25 feet of the keel; part of

the hull plating below water line removed to the extent ofa

belt 6 to 10 feet above the keel, of some width but not

to the top of the hull or rail and full length of the vessel;

some ribs were removed to broaden the beam to conform

—

19

to requirements for auto transport. Engines and boilers

rebuilt and a ‘‘new hull put around her’’; and all, upon the

original ‘‘skeleton”’ over or upon which the vessel was thus

remodeled or rebuilt. She was then launched, and the

employee was caulking her when fatally injured. The

Court at page 656 said:

‘*In these circumstances the enterprise was not origi-

nal construction and non-maritime as plaintiffs con-

tend, but was a remodeling and rebuilding an existing

vessel which never lost its identity, and maritime within

the rule of the New Bedford case, 258 U. S. 98, 42

S. Ct. 243, 66 L. Ed. 482 * ° °.”

The case of Hillcone S. S. Co. et al. v. Steffen (Cir. Ct.

of Appeals, 9th Cir.—1943), 136 F. 2nd 965, wherein during

the month of February, 1937, and for about two years be-

fore, Steffen was employed as a watchman by the Santa

Cruz Oil Company on board the S. S. Prentiss which lay

in navigable waters at Long Beach, California, tied to a

dock. During said time the vessel did not go to sea or

engage in any commerce or navigation and there was no

crew on board her. She was ‘‘indefinitely laid up.’’ The

vessel had been purchased by the oil company with the inten-

tion of reconditioning and remodeling her. In February

1937, as Steffen was leaving the vessel he sustained injuries

to his back by the slipping of a ladder extending from a

pontoon to the ship. The Court in remanding the matter

back to the Deputy Commissioner who had rejected same,

to determine all questions save that of jurisdiction said:

‘* Appellate’s services were no less maritime in char-

acter because performed on a vessel that was out of

commission for an indefinite period of time. We may

assume the non-maritime character of work on board

a hulk permanently laid up and intended to be scrapped

or which has been put to some purely non-navigable

use. But the Prentiss was intended to be reconditioned

and put back into service on the high seas. She was

a ship in every sense of the term, hence was clearly a

subject of admiralty jurisdiction. If it be assumed

that the case lies in that shadowy area within which at

some undefined and undefinable point, state laws can

validly provide compensation. Davis v. Department

of Labor. 317 U. S. 249, 253, 63 S. Ct. 225, 227, 87 L.

Ed. Nevertheless the Deputy Commissioner should

have accepted jurisdiction.’’

In LaCass v. Great Lakes Engineering Co., 219 N. W.

730 the Supreme Court of Michigan decided that where a

ship was being ‘‘rebuilt’’ viz: engine, spar, and smoke-

stack removal, and ‘‘general repairs’’, the Federal juris-

diction was exclusive and the State Compensation Act

did not apply. The Court said at pages 733 and 734.

“It is, of course, the purpose of repairs to enable

the ship to again ply the waters and carry passengers

or freight. The authorities cited are uniform in hold-

ing that the repair of a vessel has a direct relation to

commerce and navigation and is not a local matter.

The same rule is not applied to ships under construc-

tion, although their ultimate purpose is water carriage,

because, theoretically, a ship is constructed on land,

and, until completion, it does not become an instru-

mentality of commerce. A completed ship, once in com-

mission, has taken and retains a definite status as a

means of navigation and commerce. Nor have the

courts intimated a distinction between the repair of a

vessel, withdrawn from service for extensive over-

hauling, and of one under charter, en route, in actual

commission or being fitted for a specific voyage. And

counsel have not suggested in what manner the dis-

tinction may be made or limited without imperiling the

harmony and uniformity of the maritime law in its

international or interstate relations. In the absence

of an act of Congress to the contrary, the plain pro-

nouncements that the repair of a completed ship is a

_ SSR RRRe Ty cere es

21

maritime contract and has a direct relation to com-

merce and navigation must govern.’’

A reading of this case will reveal that the repairs or

changes to the ship were greater in scope and content than

in the instant case. .

It is clear that a well defined conflict exists between the

decision and the instant case, and the decision of this court,

and it is respectfully submitted that there is a serious con-

stitutional question here involved, that is of such importance

that it should be decided by this court.

The authorities upon the application of state Workmen’s

Compensation Acts to injuries sustained on navigable wat-

ers are numerous, but they all revolve around a few out-

standing federal cases.

The basic case is Southern Pacific Co. v. Jensen, 244 U.S.

207, 37 S. Ct. 529, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann.

Cas. 1917E, 900, in which the Supreme Court of the United

States held that maritime jurisdiction was exclusive in a

situation where a workman operating a truck in the unload-

ing of a steamship moored to a pier some feet away, was in-

jured while on the gangway extending from the ship to the

dock, because : |

‘The work of a stevedore in which the deceased was

engaging is maritime in its nature; his employment was

a maritime contract; the injuries which he received

were likewise maritime; and the rights and liabilities

of the parties in connection therewith were matters

clearly within the admiralty jurisdiction.”’

The constitutional admiralty jurisdiction over such trans-

actions is so far exclusive as not only to prohibit the ap-

plication of state Workmen’s Compensation Laws to them,

but also to restrain Congress from extending such state laws

to jurisdiction therein. Knickerbocker ice Co. v. Stewart,

22

253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145,

in which the court said:

‘« As the plain result of these recent opinions and the

earlier cases upon which they are based, we accept the

following doctrine: The Constitution itself adopted and

established, as part of the laws of the United States,

approved rules of the general maritime law and em-

powered Congress to legislate in respect of them and

other matters within the admiralty and maritime juris-

diction. Moreover, it took from the states all power, by

legislation or judicial decision, to contravene the es-

sential purposes of, or to work material injury to, char-

acteristic features of such law or to interfere with its

proper harmony and uniformity in its international and

interstate relations. To preserve adequate harmony

and appropriate uniform rules relating to maritime

matters and bring them within control of the federal

government was the fundamental purpose; and to such

definite end Congress was empowered to legislate

within that sphere.’’

The rule of the Knickerbocker Ice Co. case was reasserted

by the United States Supreme Court in the case of Spencer

Kellogg & Sons, Inc. v. Hicks, et als., 285 U. S. 502. This

case involved review of the New Jersey Compensation Act

and the Court held that the New Jersey Act cannot be a

method of recovery where admiralty jurisdiction exists.

A few quotations from this case will be convincing. At page

515, Justice Roberts holds:

‘“The workmen’s compensation law of New Jersey,

the purpose of which was to supersede the common law

redress in tort cases and statutory rights consequent

upon death by wrongful act, and to substitute a com-

muted compensation for injury or death of an employee,

irrespective of fault, is not applicable to the injuries

and deaths under consideration. . . .

‘‘The decisions hold that the remedy which the com-

pensation statute attempts to give is of a character

ae eee a

23

wholly unknown to the common law, incapable of en-

forcement by the ordinary processes of any court, and

) is not saved to suitors from the grant of exclusive juris-

diction to the Courts of the United States of all civil

eases of admiralty and maritime jurisdiction.

(Cases quoted including the well known case first estab-

lishing this principle, viz.: Southern Pac. Co. v. Jensen,

244 U. S. 205) and continuing:

None of the employees of the personal representa-

tives here concerned could have proceeded in admiralty

to enforce the workmen’s compensation law of New

Jersey. That law has not been recognized and taken

up as part of the admiralty jurisprudence of the

, United States.

The compensation act is inapplicable to such a mari-

time tort, and the injured person is entitled to his

remedy under rules recognized in admiralty. * * *

And finally this remedy (under the New Jersey com-

pensation act) is not consistent with the policy of

Congress to encourage investments in ships mani-

fested in the Acts of 1851, etc.’’

For prior affirmance of the same rule, see State of Wash-

ington v. W. C. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302,

68 L. Ed. 646.

An exception to the doctrine of the Jensen case is noted

, in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469,

42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, where it was

held that the Workmen’s Compensation Law of Oregon

(Or. L. See. 6605 et seq.) was applicable to an injury sus-

tained by Rohde while on the ship, building a bulkhead in a

| partially completed vessel then under construction, the

vessel lying at a dock in navigable waters. The conclusions

of the court may be best expressed in its own words:

‘“‘The contract for constructing The Ahala was non-

maritime, and although the incompleted structure upon

; which the accident occurred was lying in navigable

waters, neither Rohde’s general employment, nor his

24

activities at the time had any direct relation to navi-

gation, or commerce. * * * The injury was suffered

within a state whose positive enactment prescribed an

exclusive remedy therefor. And as both parties had

accepted and ‘proceeded under the statute by making

payments to the industrial accident fund, it cannot

properly be said that they consciously contracted with

each other in contemplation of the general system of

maritime law. Union Fish Co. v. Erickson, 248 U. S.

308 (39 S. Ct. 112, 63 L. Ed. 261). Under such circum-

stances regulation of the rights, obligations, and con-

sequent liabilities of the parties, as between them-

selves, by a local rule, would not necessarily work

material prejudice to any characteristic feature of the

general maritime law, or interfere with the proper

harmony or uniformity of that law in its international

or interstate relations. * * *

‘The general doctrine that in contract matters ad-

miralty jurisdiction depends upon the nature of the

transaction, and in tort matters upon the locality, has

been so frequently asserted by this court that it must

now be treated as settled. * * *

‘‘In Western Fuel Co. v. Garcia, supra (257 U. S.

233, 42 S. Ct. 89, 66 L. Ed. 210), we recently pointed

out that, as to certain local matters regulation of which

would work no material prejudice to the general mari-

time law, the rules of the latter might be modified or

supplemented by state statutes. The present case is

controlled by that principle.”’

The court distinguishes the Jensen and other like cases:

‘‘In each of them the employment or contract was

maritime in nature and the rights and liabilities of the

parties were prescribed by general rules of maritime

law essential to its proper harmony and uniformity.

Here the parties contracted with reference to the state

statute; their rights and liabilities had no direct rela-

tion to navigation, and the application of the local law

cannot materially affect any rules of the sea whose

uniformity is essential.’’

25

And held that, while ‘‘the general admiralty jurisdiction

? extends to a proceeding to recover damages resulting from

a tort committed on a vessel in process of construction when

lying on navigable waters within a state,” yet in the cir-

cumstances stated the exclusive features of the Oregon

Workmen’s Compensation Act would apply and abrogate

’ the right to recover damages in an admiralty court which

otherwise would exist.

In Millers’ Indemnity Underwriters v. Braud, 270 U. S.

59, 46 S. Ct. 194, 70 L. Ed. 470, the doctrine of the Grant

Smith-Porter case was applied to a maritime employment

> and the exception was clarified. The employee was a diver,

engaged in working off a barge anchored in navigable

waters, removing the timbers of an abandoned set of ways,

once used for launching ships. While the facts showed a

maritime tort, both from locality and character of the work,

the court held the Texas Compensation Law (Vernon’s

Ann. Civ. St. 1925, arts. 8306-8309) applicable because:

‘The matter is of mere local concern and its regula-

tion by the state will work no material prejudice to any

characteristic feature of the general maritime law.”’

The court, however, confined the operation of the state

law to the exception declared and maintained the integrity

of its doctrine by citing distinguishing cases:

‘We had occasion to consider matters which were

not of mere local concern because of their special rela-

tion to commerce and navigation, and held them beyond

the regulatory power of the state, in Great Lakes

Dredge & Dock Co. v. Kierejewski, 261 U. S. 479 (438

S. Ct. 418, 67 L. Ed. 756) ; Washington v. Dawson & Co.,

264 U. S. 219 (44 S. Ct. 302, 68 L. Ed. 646) ; Gonsalves

v. Morse Dry Dock & Repair Co., 266 U. S. 171 (45

S. Ct. 39, 69 L. Ed. 288); and Robins Dry Dock & Re-

pair Co. v. Dahl, 266 U. S. 449, 457 (45 S. Ct. 157, 69

L. Ed. 372).”’

seer

26

In the Kierejewski case, the employee, a master boiler

maker, was injured while working from a float alongside

a scow, making repairs on the scow. The Dawson case

included the instances of stevedores working only on board

ship, and workmen engaged at maritime work under mari-

time contract upon a vessel moored at a dock. Gonsalves

was working on board a steamer in a floating dock, aiding

in the repair of the shell plates, Dahl was doing repair work

on a steamer. In the latter case, the court said:

‘The alleged tort was maritime, suffered by one

doing repair work on board a completed vessel. The

matter was not of mere local concern, as in Grant

Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 476 (42

S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008), but had

direct relation to navigation and commerce, as in Great

Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S.

479 (43 S. Ct. 418, 67 L. Ed. 756). The rights and

liabilities of the parties arose out of and depended upon

the general maritime law and could not be enlarged or

impaired by the state statute.”’

Later rulings of the court are that the Louisiana Com-

pensation Law (Act No. 244 of 1920) did not apply to an

injury sustained by a helper to a boiler maker sent on

board a steamer on the Mississippi river to help lengthen

a smokestack (Messel v. Foundation Co., 274 U. S. 427,

47 S. Ct. 695, 71 L. Ed. 1135), nor to the death of a long-

shoreman while unloading a vessel. Smith & Son v. Taylor

(No. 186, October term, 1927) 48 S. Ct. 228.

And in Baizley Iron Works & Ocean Accident & Guar-

antee Corp. Ltd. v. Spann, 281 U. S. 222-232, the injured

was paintiug angle irons on a ship on the Delaware River

and suffered injury by reason of sparks from a torch used

by a fellow employee. The employee’s work was described

as a blacksmith’s helper. The SS. Baldhill, upon which he

was working, was being repaired and the repair included

27

the painting of the engine room and repairs to the floor

of the same; the ship being tied to the pier in the Delaware

River. The lower court held that the injured was doing

work of a nature which had no direct relation to naviga-

tion or commerce, and the situation was, therefore, con-

trolled by the holding in the Grant-Smith Porter case.

The U. S. Supreme Court, in reversing, commented upon

the Grant-Smith Porter case as follows:

‘‘Claimant when injured, was working upon an in-

completed vessel, a thing not yet placed into naviga-

tion and which had not become an instrumentality of _

commerce.”’

See also Parker v. Motor Body Sales, 314 U.S. 244, here-

inafter referred to under Point II of the Argument.

It is clear that a well defined conflict exists between the

decision in the instant case and the decisions of this Hon-

orable Court hereinbefore referred to and it is respect-

fully submitted that the question involved is of such im-

portance that it should be settled by this Court.

Pornt II

The rights and liabilities of the respective parties were

in the purview of the Longshoremen’s & Harborworkers’

Act, 33 U. 8. C. A., 901 et seq.

See excerpt of N. J. Court of Errors and Appeals

Decision under Point I of the Argument.

See cases and authority cited under Point I of the

Argument.

Section 903 of the Longshoremen’s & Harborworkers’

Act reads as follows:

‘*3. Coverage. (a) Compensation shall be payable

under this chapter in respect of disability or death

of an employee, but only if the disability or death

ee :.

28

results from an injury occurring upon the navigable

waters of the United States (including any drydock)

and if recovery for the disability or death through

workmen’s compensation proceedings may not validly

be provided by State law. No compensation shall be

payable in respect of the disability or death of * * *”

The United States Employees Compensation Commission

» under the Longshoremen’s Act has set forth its views as

to the interpretation of Section 903 of that Act, after a

consideration of the Federal decisions relating to that sub-

ject matter. Herewith follows its interpretation of this

Section (Commission’s opinion No. 30, page 45 at 46-47) }

“It is to be noticed that section 3 (a) does not re-

late to (1) the question whether or not a State Work-

men’s Compensation Law has provided for compen-

sating an injury to an employee of a particular class,

nor (2) the question whether or not an injury is being

compensated by payment from a State fund or by an

insurance carrier or employer under a State law, nor

(3) to the interpretation concerning coverage made

by a State commission or other public authority. In

other words, section 3 (a) has the same application

to a State having no Workmen’s Compensation Law,

as it does to States having such laws and with the

same meaning.’’

‘‘Section 3 (a) relates to the constitutional au-

thority of State Legislatures and the Congress of

the United States. When the section used the word

‘validity’ it has reference to constitutional authority.

When an injury occurs to an employee actually in

maritime employment and at the time upon the navi-

gable waters of the United States, the compensation

for that injury is a subject committed to the exclusive

jurisdiction of Congress by the Federal Constitution

as was decided by the United States Supreme Court

in the Dawson case hereinabove referred to. It is

clear that Congress has exercised its exclusive admi- |

ralty and maritime jurisdiction by the enactment of

_ ae A Tee:

the Longshoremen’s and Harbor Workers’ Compen-

sation Act and an injury so incurred is to be compen-

sated under that act and not otherwise. * ° °”’

‘‘The Federal Constitution, of course, applies to

and governs the legislation of all States, and it is

now evident that State Workmen’s Compensation

Laws are not applicable to such maritime injuries

as come within the Longshoremen’s Act. * * *”’

‘““The history of legislation by Congress in 1917,

1922 and 1927, and the decisions of the United States

Supreme Court during a large part of the same

period, clearly indicates that no State law is valid

that attempts to compensate for disability or death

) occurring in maritime employment on the navigable

waters. .°. °°”

In Parker v. Motor Boat Sales, 314 U. S. 244, the Court

said of the above quoted Act:

‘‘The purpose of this chapter (act) was to provide

for federal compensation in the area which specific

decisions of the United States Supreme Court placed

beyond the reach of the States, and the proviso in this

section (903) making compensation payable only if

recovery may not validly be provided by State law

cannot be read in a manner that would defeat that

purpose. ”’

‘‘Under the provision of subsection (a), (903)

making compensation payable only if recovery may

not validly be provided by State law, the field in which

a State may not validly provide for compensation must

be taken for the purpose of this chapter (Act), as the

same field which specific decisions of the United States

Supreme Court excluded from State compensation

laws.’’

The above case was later confirmed in Davis v. Depart-

ment of Labor and Industries of Washington, 317 U. S.

249, 63 S. Ct. 225.

30

A case of much interest following the Davis case is that

of De Bardeleben Coal, et al., v. Hendersen (Cir. Ct. of

Appeals, 5th Ct., 142 F. (2d) 481), wherein recovery was

allowed in the drowning of a member of a shore gang whose

duty it was to maintain a fleet of barges and, while so doing,

fell into the Mississippi River.

In the issue as to whether the Federal law should apply

to the exclusion of the State law, the Court said, citing the

Continental Casualty Company v. Lawson (64 F. (2d) 802) :

‘‘The question of whether jurisdiction over a mari-

time tort could be asserted under the compensation

laws of the States, or existed exclusively in admiralty

was an important one, when the decisions were ren-

dered in the Rhode (Grant Smith-Porter Ship Com-

pany v. Rhode, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed.

321, 25 A. L. R. 1008), the Brand (Millers Indemnity

Underwriters v. Brand, 270 U. S. 59, 46 S. Ct. 194, 70

L. Ed., 470), and other similar cases referred to in

Colonna’s Shipyard Company v. Lowe, 22 F. 2nd 843,

but since the passage of this Act, the importance of

that question has largely disappeared. The elaborate

provisions of the Act, viewed in the light of prior

congressional legislation as interpreted by the Su-

preme Court leaves no room for doubt as it appears, to

the fullest extent all the power and jurisdiction it had

over the subject matter. The liability of an employer

who makes provisions to secure compensation to his

employees is exclusive of all other liability that might

be asserted by them against him. State compensation

laws and this compensation law of Congress are

mutually exclusive of each other.”’

The Court went on further to state, in upholding the

Federal jurisdiction :

‘The Parker case, supra, substantially adopts this

view and such aberrations from it as the quasi legisla-

tive decision in the Davis case, seems to present, but

31

only in appearance, another one of those hard cases

which make bad law. State jurisdiction was upheld

therefor announced reasons having more legislative

than judicial force, and not because of any purpose

to adopt a rule contrary to that which this Court had

announced in the Lawson case and the Parker case,

pointing out that it is not at all necessary now to re-

determine the correctness vel non of the Jensen case

or of any of the brood hatched from it, which teetering

and wavering on the line the Jensen case had drawn

between State and Federal jurisdiction, drew it now

on this and now on the other, side as hard cases piled

up to make bad law worse. It is sufficient to say that

Congress intended the compensation act to have a

coverage coextensive with the limits of its authority

and that the provision, ‘If recovery * * * may not

validly be provided by State law,’ was placed in the

act not as a relinquishment of any part of the field

which Congress could validly occupy, but only to save

the Act from judicial condemnation, by making it clear

that it did not intend to legislate beyond its constitu-

tional powers. Having in mind the confused and con- ©

fusing mass of quasi legislative decisions which, as

such decisions always tend to do, had rendered the

law almost helplessly uncertain, this provision was

inserted to avoid, not to provide, a new basis for fur-

ther judicial trimming. In the application of the Act,

therefore the broadest ground it permits should be

taken. No ground should be yielded to State jurisdic-

tion in cases falling within the principle of the Jensen

case merely because the Supreme Court before the

Federal Compensation Law went into effect, did here

| a little, there a little, chip and whittle Jensen down in

the mass of conflicting and contradictory decisions in

which it advanced and applied the ‘local concern’

doctrine to save employees injured on navigable waters

and otherwise remediless, the remedies State Compen-

sation Law afforded them. In short, the Federal Com-

pensation Law now in effect, the judicial tergiversations

which went on before its passage no longer have point.

This is what we held in the Lawson case, what the

32

Supreme Court held in the Parker case, supra. We

adhere to that holding.’’ (Italics mine.)

See also U. S. Casualty Co. v. Taylor, 64 F. (2d) 521,

reversing 60 F. (2d) 169, Certiorari denied, 54 S. Ct. 562,

90 U. 8. 639; Royal Indemnity Co. v. Puerto Rico Cement

Corp., 142 F. (2d) 2387.

It is clear that a well defined conflict exists between the

decision in the instant case and the decisions of this Honor-

able Court hereinbefore referred to, and it is respectfully

submitted that the question involved is of such importance

that it should be settled by this Court.

Conclusion

Petitioner respectfully submits that the questions pre-

sented by the foregoing petition show a well defined conflict

exists, between the decision of the Court of Errors and

Appeals of New Jersey and the decisions of this Honorable

Court and that there are involved important questions of

constitutional and federal law which have not been but

should be decided by this Court, and that these questions

should be reviewed by this Court.

Respectfully submitted,

Wa ter H. Jones,

Of Counsel with and Attorney

of Petitioner-Appellant.

(6499)