Martinson v. State Industrial Accident Commission

BAILEY, J. The plaintiff, Bud Martinson, was hired on February 20, 1934, by Meyers Contract Company to assist in loading machinery on a barge moored to a wharf on the Willamette river in Portland, Oregon. That company was engaged in general contracting business and had rented from the Diesel Towing Company the barge in question to transport its machinery and equipment from Portland to the Bonneville dam on the Columbia river, and engaged the Diesel Towing Company to tow the barge to the dam site. The barge, of approximately one hundred tons capacity, had prior to that time been used by the Diesel Towing Company principally to transport lumber and machinery on the Willamette river and the upper and lower Columbia. Prior to his employment by Meyers Contract Company the plaintiff had at different times been employed by the Diesel Towing Company to assist in loading and unloading cargoes from the barge. The only work to be performed by him for Meyers Contract Company was to assist in loading that company’s equipment on the barge. He had been working on the barge about an hour and a half when a welding tank ‘ ‘ slipped down off a sling” used for loading it and crushed two toes of Martinson’s left foot. *425 After the injury the plaintiff applied to the state industrial accident commission for compensation under the Oregon workmen’s compensation law. After paying him one month’s compensation the commission denied further compensation, on the ground that the work in which the plaintiff was engaged at the time of the injury was maritime in nature and not covered by the state compensation act. Thereupon this proceeding was instituted against the commission. At the conclusion of the trial the circuit court entered judgment for the defendant, from which judgment the plaintiff has appealed. The principal question involved on this appeal is whether or not the nature of the work in which plaintiff was engaged and the place of his employment at the time of the injury preclude recovery by him under the Oregon compensation act. It is admitted that the plaintiff and his employer, Meyers Contract Company, at the time of the injury were subject to that act as far as the provisions thereof could apply. From the record in the ease it appears that the barge prior to the loading of the machinery had been engaged exclusively in commerce on the navigable waters of the United States and at the time of the injury complained of was on navigable wáter, and the cargo which was being loaded upon it was to be carried for a considerable distance on navigable waters. The fact that the craft which was being loaded was a barge and not a ship does not alter the maritime nature of the work in which plaintiff was engaged. As was said-in Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128 (74 L. Ed. 754, 50 S. Ct. 303) : “From the standpoint of maritime employment, it obviously makes no difference whether the freight is placed in the hold or on the deck of a vessel, or whether *426 the vessel is a car float or a steamship. A car float in navigable waters is subject to the maritime law, like any other vessel.” The loading of a barge or a ship has direct relation to commerce and navigation, is not a matter of purely local concern, and uniform rules in respect thereto are essential. So far as concerns the nature of the work to be performed, the loading of a vessel has as direct relation to commerce and navigation as the unloading. In Northern Coal & Dock Company v. Strand, 278 U. S. 142 (73 L. Ed. 232, 49 S. Ct. 88) it is observed: “The unloading of a ship is not 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 for the major portion of the time upon land is unimportant. He was upon the water in pursuit of his maritime duties when the accident occurred.” In Employers’ Liability Assurance Corporation v. Cook, 31 Fed. (2d) 497, an action was brought by the widow of Hal Cook, under the compensation law of Texas, to recover compensation for Cook’s death. The Ford Motor Company owned two steamships, the Lake Gorian and the Oneida, which it operated between Detroit and various cities where it maintained assembling plants, including Houston, Texas. On one of the trips of the steamship Lake Gorian to Houston, while Cook, who was a mechanic in the Ford assembling plant at that place, was in the hold of the ship assisting in unloading, he received an injury which caused his death. The defense to recovery under the workmen’s compensation law of Texas was that the asserted cause of action was within the exclusive jurisdiction of a court of admiralty. In the federal district court the widow recovered judgment. The circuit court of appeals af *427 firmed the judgment, using the same line of reasoning, here advanced by the appellant for a reversal of the ruling of the trial court. We therefore quote at length from its opinion, as this will serve a double purpose, i. e., to explain appellant’s position and to set forth the conclusions which later were refuted by the supreme court of the United States: “The injury to the employee in the case at bar was not caused by a tort; it was a pure accident. Appellee could obtain no relief in admiralty, and has none, unless it be under the Texas workmen’s compensation law. We are of opinion that the state statute applies under the peculiar facts of this case. As in the Rohde case [257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008] the employee and employer did not contract in contemplation of the maritime law. The employee’s work was to be done upon land. It was only because he was directed to do so that he ever went aboard the ship. It would be extreme to say that he was a longshoreman or stevedore, or is to be classed as a seaman, within the meaning of section 20 of the Merchants’ Marine Act of 1920 (46 USCA § 688), as construed by the supreme court in International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157. The work he did in unloading the Lake G-orian on her two trips to Houston was so infrequent, and occupied so small a part of his time, as to be merely incidental to his regular employment. The Ford Motor Company owned but two ships, which it did not use in commerce, except to carry its own goods. “The employees were not engaged to unload cargo generally, but only to take their employer’s cargo off their employer’s ship. We think it fairly can be said that the matter of unloading these two ships of the Ford Motor Company at rare intervals was ‘of mere local concern, and its regulation by the state will work no material prejudice to any . . . feature of the general maritime law.’ Millers’ Underwriters v. Braud, supra. It is true that in Northern Coal Co. v. Strand, *428 278 U. S. 142, 49 S. Ct. 88, 73 L. Ed. 232, it was said that the unloading of a ship was not a matter of purely local concern. But the language used in any opinion is to be construed in the light of the facts under consideration. In the just-cited case the employees were engaged to work regularly, both upon the dock of their employer and upon ships which came to that dock to be unloaded. The contract of employment contemplated that the employees should unload the ships as well as handle coal on the dock.” On appeal of the Cook case to the supreme court, 281 U. S. 233 (74 L. Ed. 823, 50 S. Ct. 308), the latter tribunal reversed the circuit court of appeals and rejected its reasoning, in the following language: “The record plainly discloses that while in the course of his employment and at work in the hold assisting in unloading a vessel afloat on navigable waters Cook received injuries out of which this suit arose. There is nothing in principle to differentiate this case from Northern Coal Company v. Strand, 278 U. S. 142, and the judgment of the circuit court of appeals must be reversed. “See Nogueira v. New York, N. H. & H. R. R. Co., decided this day, ante, p. 128. “The proceeding to recover under the State Compensation Act necessarily admitted that the decedent was employed by the insured when injured. Any right of recovery against the insurance carrier depends upon the liability of the assured. Whether Cook’s employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important. The unloading of a ship is not matter of purely local concern as we have often pointed out. Under the circumstances disclosed the state lacked power to prescribe the rights and liabilities of the parties growing out of the accident. The fact that the compensation law of the state was elective in form does not aid the respondents.” *429 See, also, in this connection: Gonsalves v. Morse Dry Dock and Repair Company, 266 U. S. 171 (69 L. Ed. 228, 45 S. Ct. 39); Baisley Iron Works v. Span, 281 U. 222 (74 L. Ed. 819, 50 S. Ct. 306); Spencer Kellogg & Sons, Inc. v. Hicks, 285 U. S. 502, at page 513 (76 L. Ed. 903, 52 S. Ct. 450); Puget Sound Bridge & Dredging Co. v. Department of Labor and Industries, 185 Wash. 349 (54 P. (2d) 1003); Tyler v. Industrial Commission, 25 Ohio App. 444 (158 N. E. 586); Ciaramitaro’s Case, 288 Mass. 448 (193 N. E. 4); Comar v. Department of Labor and Industries, — Wash. — (59 P. (2d) 113). In The Observation, 1 A. M. C. (1936), page 6 [same case, Heaney v. Carlin Construction Company, 269 N. Y. 93 (199 N. E. 16)], the court, in referring to the nature of Heaney’s employment, said: “The contract of employment was for the services of the claimant in the erection of a building. It was not a contract to do work upon a vessel in navigable waters, nor even to do work remotely connected with any undertaking having to do with navigation or commerce. The presence of the claimant upon the boat was a mere incident of the contract of employment, it having been found as a fact that he was on the boat as an employee of the contractor against whom the award has been made.” The opinion in the case just mentioned represented the decision of a court divided four to three, the majority holding that the injured employee was entitled to compensation under the workmen’s compensation law of New York. The facts in that case are, as above pointed out, entirely different from those in the case at bar, in that the case before us for decision has to do with an employee engaged in helping load a barge upon navigable waters, whereas in the Heaney case the employee was on the boat merely for transporta *430 tion to perforin labor elsewhere for his employers, when the explosion which caused his injuries occurred. Inasmuch as the supreme court of the United States, whose decisions in matters of this nature are controlling, has decided the question here involved adversely to appellant’s contention, it follows that the judgment appealed from should be affirmed, and it is so ordered. Band and Kelly, JJ., concur.