Claim of Sullivan v. Hudson Navigation Co.

. WOODWAED, J.: All of the above cases involve the question of the jurisdiction of the State Industrial Commission to make the awards in question, and some of them involve the problem of estoppel or waiver on the part of the insurance carriers. It is conceded — 156 — that the jurisdictional question involved is close, and it has been thought proper to dispose of them all together, that all of the matters may be presented upon a single determination, i In Matter of Belknap (No. 34) the State Industrial Commission has refused an award in a case which comes within the letter of the statute, on the ground that the accident occurred on board a steamboat plying the waters of the Hudson river, a navigable.stream, and that the case, therefore, fell within the exclusive jurisdiction of admiralty. No serious question is raised that the appellant is entitled to a reversal, unless the conclusion is reached that the Commission is ' correct as to the question of jurisdiction, so that this case may be passed for the present, as it must follow the disposition of the underlying question in all the other cases. In Matter of Sullivan v. Hudson Navigation Company (No. 26), and Matter of Anderson v. C. W. Chadwick & Company (No. 39), there was an accident upon a steamboat upon navigable waters, as in Matter of Belknap (supra), and in the Sullivan case the Commission, after suspending action, subsequently reinstated an award to the claimant upon the theory that as the matter was before the Commission with the consent of the insurance carriers the original award might be sustained on the ground that the question of jurisdiction was not raised in the proceeding, and, therefore, was to be deemed waived. Substantially the same situation prevails in the Anderson case (No. 39). Assuming for the present that the accidents, which occurred on shipboard on navigable waters, were within the exclusive jurisdiction of admiralty courts, did the fact that the proceedings before the State Industrial Commission were consummated before the decisions of the United States Supreme Court were known, have the effect of waiving the rights of the insurance carriers and employers, or of estopping them from raising the question of jurisdiction? It is not suggested that any objection to the jurisdiction of the State Industrial Commission was raised when the cases were before that body for determination, and it was only after the decisions of the Supreme Court of the United States in the cases of Southern Pacific Co. v. Jensen (244 U. S. 205) and Clyde S. S. Co. v. Walker (Id. 255) that the Commission itself began to question — 157 — its power, and this was followed by the insurance carriers and employers challenging the action. The question is thus fairly presented in these two cases whether acquiescence in the action of the State Industrial Commission, at the time the matters were under consideration in that body resulting in awards to the claimants, renders such action conclusive, either upon the theory of waiver or estoppel. It is true, of course, that persons and corporations may waive in some matters, and upon some occasions, a constitutional or statutory provision in their favor (Mayor, etc., v. M. R. Co., 143 N. Y. 1, 26, and authorities there cited), but this power is subject to the limitation that it must not be against good morals or sound public policy. (Matter of New York, L. & W. R. R. Co., 98 N. Y. 447, 453.) The public policy of the State is evidenced in legislative and constitutional enactments, and is defined and applied in judicial decisions. (Matter of Lampeon, 161 N. Y. 511.) When that public policy has been declared parties cannot make a binding contract, by waiver, estoppel, or by mutual agreement, which is in violation of such declared law or public policy. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 19.) Whatever is forbidden by law, either directly or by necessary implication, cannot be legally done; in law it has no standing whatever and is void. And a “ void [act] is no [act].” (People v. Witherbee, 178 App. Div. 368, 370, and authorities there cited; Davidson v. Ream, Id. 362.) This rule is specially emphasized as it relates to the powers of courts or bodies charged with the discharge of particular duties. The powers or jurisdiction cannot be extended by consent. The rule is well established that “ when a party interposes the judgment of a court as the foundation of his title or claim, the want of jurisdiction in the court to render the judgment may always be set up against it when sought to be enforced, or when any -benefit is claimed under it by the party in whose favor it was rendered, or by any one claiming under him.. It is always open to the party against whom the judgment is offered to prove the want of jurisdiction in the court, even though such proof contradicts recitals in the record. * * * Whenever, therefore, a judgment is interposed as a claim or the foundation of a title, the party — 158 — against whom it is offered may show that it is void, and, therefore, that the supposed record is not in truth a record at all. No court or judicial officer can acquire jurisdiction by the mere assertion of it, or by erroneously alleging the existence of facts upon which jurisdiction depends. If the court had no jurisdiction, it had no power to make a record, and the supposed record is not in truth entitled to the . character of a judgment.” (O’Donoghue v. Boies, 159 N. Y. 87, 98.) In harmony with this holding, and relying upon it‘ for authority, this court in Davidson v. Ream (178 App. Div. 362) held squarely that the plaintiff, who had invoked the jurisdiction of the court, was not estopped to question its jurisdiction, and to have a judgment, nominally in her favor, set aside. In that case we pointed out that the court was . without jurisdiction of the subject-matter, and said: “ The lack of jurisdiction makes the original judgment and the récord of its action utterly void and unavailable for any purpose, and while the plaintiff might rely upon this situation, . she is at liberty by a more direct and summary proceeding to have the judgment set aside and vacated, and this right is not affected by the fact that this application is made before a different justice from the one who presided at the time the judgment was granted. (Kamp v. Kamp, 59 N. Y. 212, 216-218, and authorities there cited.) The application in the case now before us is not to reverse the judgment of the court, or to consider the merits of the controversy, but to prevent the enforcément or recognition of a void judgment (Kamp v. Kamp, supra), and the fact that the plaintiff was, in form • at least, the moving party in the original action does not estop her from invoking the aid of this court. Wherever there is want of authority to hear and determine the subject-matter of the controversy an adjudication upon the merits is a nullity and does not estop even an assenting party. (Matter of Walker, 136 N. Y. 20, 29, and authority there cited; Risley v. Phenix Bank of City of New York, 83 id. 318, 337; O’Donoghue v. Boies, 159 id. 87, 98, 99, and authorities cited.) ” And the rule is that the judgment may, under such circumstances, be attacked directly or collaterally whenever it comes in question. (O’ Donoghue v. Boies, supra, 99.) Clearly, if a party who has invoked the aid of a court — 159 — of general jurisdiction, and has had a judgment in her favor, may be heard to question the jurisdiction of such court over the subject-matter, and may have the judgment set aside as void, it cannot be held that the insurance carrier and employer are estopped to question the jurisdiction of a statutory tribunal when it has been judicially determined that such tribunal has no jurisdiction of the controversy. The insurance carrier and employer did not invoke the jurisdiction; it was assumed by the State Industrial Commission, under the letter of the Workmen’s Compensation Law, and it now having been fully determined by the United States Supreme Court that under the circumstances of this case the exclusive jurisdiction vests in the United States District Courts, exercising admiralty jurisdiction, we are of the opinion that these two cases here specially considered should be reversed, and that Matter of Belknap (No. 34) should be affirmed. So far, therefore, as the jurisdictional question is involved in any of the above cases, we are of the opinion that it cannot be waived, and that the conduct of the parties cannot work an estoppel;which -will give validity to an award of the State Industrial Commission where it was without jurisdiction of the subject-matter; A party may, by appearing, waive an objection to the jurisdiction of his person, but he cannot confer authority upon a court or other body, which is denied by law, by a failure to offer the objection seasonably. Where the body acts contrary to law and without power or jurisdiction, the party aggrieved may raise the question at any time when his rights are invaded; he may challenge the jurisdiction. Where there are facts before the court for determination on which the question of jurisdiction depends, of course the adjudication may be reviewed only on appeal. {O’Donoghue v. Boies, supra.) In such a case it is necessary to raise the question at a proper time and in a proper manner, but the question of whether the body acted within the jurisdiction or power granted, and which impliedly forbade the exercise of any other power than that granted, may always be asserted and raised, directly or collaterally, either from an inspection of the record itself when offered in behalf of the party claiming under it, or upon extraneous proof which — 160 — is always admissible for that purpose. (O’Donoghue v. Boies, supra, 99.) The fact that appellate courts, confined to the review of law questions, will not consider a constitutional question which was not presented in the court below, as in Valley S. S. Co. v. Wattawa (244 U. S. 202) does not change this rule. It is the duty of such court to review only the actual determinations of the court below, hot to take original cognizance, and the fact that the party may subsequently raise the question of jurisdiction fully protects his rights. It matters not how complete the adjudication may be, if the court was without power or jurisdiction its judgment or decree is without avail. This distinction runs through all the cases, reaching to the powers of municipal or other corporations. Mere irregularities, not going to the jurisdiction of the body acting, may be disregarded, or their effect limited; but where they reach to the dignity of jurisdictional defects they are fatal. (Moore v. Mayor, 73 N. Y. 238, 248, 249, and authorities cited.) In Matter of Doey (No. 38) and Matter of Coakley (No. 35) we have cases in which the employers were corporations engaged in making alterations or repairs upon - ocean-going ships to fit them for carrying particular cargoes, and the employee was found dead in the hold of the vessel in one instance, and was injured in the other. Awards have been made in both cases, and the only separate question necessary to be considered is whether these men were within the exclusive jurisdiction of admiralty in the performance of their work; whether their contracts of employment were maritime in their nature. It is true that these men were what might be called carpenters by trade, and they were engaged in carpenter work at the time of the accidents, but they were doing work looking to the fitting of vessels to carry the cargoes offered; they were doing work preliminary to the actual loading of the vessels, and no good reason suggests itself to our minds why we should attempt to distinguish between this class of labor, performed on shipboard in connection with the taking on of cargoes, and the work of longshoremen in actually placing the cargo. The work of a stevedore has been conclusively determined to be maritime in its nature, and his contract of employment a maritime — 161 — contract, and that injuries received in connection with the performance of such contract on shipboard were likewise maritime; and that the rights and liabilities of the parties in connection therewith are matters clearly within the admiralty jurisdiction. (Southern Pacific Co. v. Jensen, 244 U. S. 205, 217, and authority there cited.) It is not the particular kind of work which the person is qualified to perform, or the fact that he is performing a particular kind of work, which determines the exclusive jurisdiction of a court of admiralty; it is the character of the contract — whether it has reference to maritime service or maritime transactions. (Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62.) In the case of torts, the mere fact that the tort occurs on board of a ship located in navigable waters, is sufficient (Atlantic Transport Co. v. Imbrovek, supra), and matters of contract in connection with such employment are likewise within the rule, as we have already seen. Both of these cases sound in tort; they are cases in which courts of common law and of admiralty had concurrent jurisdiction prior to the enactment of the Workmen’s Compensation Law, and we are clearly of the opinion that the State Industrial Commission,- which" has no common-law jurisdiction, has no power to deal with these cases. In Atlantic Transport Co. v. Imbrovek (supra) the employer was, as in this case, a corporation employing persons to aid in the loading and unloading of ships at their docks, and the court held that admiralty had jurisdiction of the cause of action against such employers, although the work was being done for the steamship company, and the accident grew out of such work. If the court in that case had jurisdiction of the employer, it would have jurisdiction' in the cases now under consideration, and, having such jurisdiction, the State Industrial Commission cannot have it, and the awards should be reversed. In Matter of Anderson (No. 48), Matter of Keator (No. 52) and Matter of Tacoletti (No. 50) the injured employees were at work upon the wharf, and, if the jurisdiction depended upon the rule in cases of torts, it might be that there would be some question as to whether the admiralty court would have jurisdiction. The authorities seem to hold that in — 162 — matters of tort the location is controlling; that to give jurisdiction the tort must have been committed upon the high seas or navigable waters, and it has been held that docks and piers were not a part of the navigable waters, but were rather extensions of the land. The difficulty is, however, that section 9 of the Judiciary Act of 1789 (1 U. S. Stat. at Large, 76, 77) gives the District Courts of the United States “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction; * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it,” and this is still the law. (U. S. R. S. §§ 563, 711; U. S. Judicial Code [36 U. S. Stat. at Large, 1091, 1160, 1161], •§§ 24, 256*; Southern Pacific Co. v. Jensen, supra.) “ The work of a stevedore in which the deceased was engaged 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.” (Southern Pacific Co. v. Jensen, supra, 217.) In other words, the admiralty court has exclusive jurisdiction of maritime contracts, except in so far as the parties have common-law remedies which they may assert, and if an employee under a maritime contract receives an injury he must look either to the common law or to the admiralty jurisdiction for his remedy. Whether the Workmen’s Compensation Law has operated to take away the common-law remedy of persons employed in loading and unloading ships under maritime contracts it is not now necessary to consider; it is enough that the remedy which the Workmen’s Compensation Law attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction. (Southern Pacific Co. v. Jensen, supra, 218.) In such a — 163 — situation the remedy must be found elsewhere than in the Workmen’s Compensation Law, and that is the question presented here. Maritime contracts must be enforced, and the rights of parties determined under them, either in admiralty or in courts of common law; they cannot be disposed of by a tribunal unknown to either of these jurisdictions. While there are some expressions in Southern Pacific Co. v. Jensen (supra) which seem to intimate that the case is intended to be limited to vessels engaged in interstate or foreign commerce, we think a careful reading of the opinion does not warrant such a limitation, especially in the light of the previous adjudications of that court. In the Hine v. Trevor (4 Wall. 555, 563) the court, in speaking of The Genesee Chief v. Fitzhugh (12 How. [U. S.] 457), say that that case overrules all the previous decisions limiting the admiralty jurisdiction to tidewater, and “ asserts the broad doctrine that the principles of that jurisdiction, as conferred on the Federal courts by the Constitution, extend wherever ships float and navigation successfully aids commerce, whether internal or external,” and in Matter of Garnett (141 U. S. 1, 15) the court, after citing many cases, say: “ In some of the cases it was held distinctly that this jurisdiction does not depend on the question of foreign or interstate commerce, but also exists where the voyage or contract, if maritime in character, is made and to be performed wholly within a single State,” and quotes Mr. Justice Clifford in The Belfast (7 Wall. 640) as saying that “ difficulties attend every attempt to define the exact .limits of admiralty jurisdiction, but it cannot be made to depend upon the power of Congress to regulate commerce, as conferred in the Constitution. They are entirely distinct things, having no necessary connection with one another, and are conferred, in the Constitution, by separate and distinct grants.” If the Workmen’s Compensation Law had-given the right which the statute now gives, and had provided a common-law remedy, the difficulty here presented would not exist. (Dougan v. Champlain Transportation Co., 56 N. Y. 1, 5.) By giving a right unknown to the common law, and by providing a remedy equally strange to our underlying law, the subject-matter of contracts" of a maritime nature is left to — 164 — the exclusive jurisdiction granted by law to courts of admiralty, and the awards made by the State Industrial Commission are without jurisdiction, and void. All of the awards made must b¿ reversed, and all of the orders which have been • made denying relief to the appellants must follow this disposition; and in Matter of Belknap (No. 34) the determination of the Commission should be affirmed. All concurred, except John M. Kellogg, P. J., who dissented (with an opinion in which Cochean®, J., concurred) in each of the cases except the Sullivan case, the Belknap. case, and the Emily Anderson case, in which latter cases he concurred in the result. Footnotes [*] On October 6, 1917, after the accidents herein, the words “and to claimants the rights and remedies under the Workmen’s Compensation Law of any State ” were added to the statute as quoted in the opinion. (See 36 U. S. Stat. at Large, 1091, § 24, subd. 3, as amd. by 40 id. 395, chap. 97, § 1; 36 id. 1160, 1161, § 256, subd. 3, as amd. by 40 id. 395, chap. 97, §2.) —[Rep.