Resigno v. F. Jarka Co.

O’Malley, J. The court has dismissed the complaint as to the appealing defendant upon motion made under rule 107, subdivision 2, of the Rules of Civil Practice. The question presented, therefore, is whether this court has jurisdiction of any cause of action alleged. The complaint and the moving affidavits set forth the following facts: Plaintiff’s intestate, hereinafter referred to as plaintiff, was employed as a longshoreman by the respondent F. Jarka Co., Inc., hereinafter referred to as the defendant. The latter was engaged in the business of a stevedore. On February 18, 1926, the defendant was loading and discharging cargo upon and from the steamship Hanover, lying in navigable waters at the city of Hoboken, N. J. This work was conducted under contract with the codefendant Norddeutscher Lloyd, the owner or operator of the vessel. The Hanover flew the German flag. The plaintiff was a resident of New Jersey. The defendant was a Delaware corporation duly authorized to do business in New Jersey, and plaintiff entered into his contract of employment with the defendant in that State. The defendant complied with all the requirements of the New Jersey Workmen’s Compensation Law, and from the facts established it appears that plaintiff is bound by the provisions of this Compensation Law, provided a cause of action arising only under — 216 — the laws of the State of New Jersey is pleaded. On the day in question plaintiff sustained injury during the course of his employment while he was aboard the Hanover. On the evening of that day he died on land in a hospital in New Jersey. As drawn the complaint upon its face seems principally to be predicated upon a New Jersey statute creating a cause of action for death through the negligence of another. But even though the complaint is so framed it may be upheld if it sets forth a cause of action predicated upon any theory. It is no ground of obj ection that it sets forth one or more theories of liability, provided a single cause of action is pleaded. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436.) As already indicated, plaintiff may not succeed if his claim is based solely upon a New Jersey statute. His remedy is exclusively under the Workmen’s Compensation Law of that State. This is especially so since the plaintiff died on land, and the New Jersey statute is a death and not a survival statute. (Anderson v. Standard Oil Co. of New Jersey, 124 Misc. 829, and cases cited.) Formerly under the general maritime law no suit would lie in the admiralty courts of the United States to recover damages for death by negligence. (Western Fuel Co. v. Garcia, 257 U. S. 233, 240.) It is claimed, however, that this plaintiff has a cause of action which has been well'pleaded under section» 33 of chapter 250 of the 2d session of the 66th Congress, being the act of June 5, 1920 (41 U. S. Stat. 1007). The act is commonly known as the Jones Act. By its provisions it “ may be cited as the Merchant Marine Act, 1920.” (Now United States Code, tit. 46, § 688.) If plaintiff has pleaded any cause of action it must find its basis in this particular act. Section 33 follows: “ Sec. 33. That section 20 of such Act of March 4, 1915, be, and is, amended to read as follows: “ ‘ Sec. 20. That 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 — 217 — in which the defendant employer resides or in which his principal office is located.’ ” Section 20 of the Seamen’s Act of 1915 (38 U. S. Stat. at Large, 1185, chap. 153), known as the La Follette Act, referred to, read: “ Sec. 20. 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.” The effect of the enactment of section 33 appears to have been to wipe out entirely section 20, except in so far as it might be retained by reference to the statute relating to the right of action for death in the case of railway employees. Defendant maintains that as the plaintiff was working upon a German ship under the rule or law of the flag, he is to be deemed a German seaman. Section 33 of the Jones Act, it is claimed, is intended to inure to the benefit of American seamen only. On the other hand, plaintiff maintains that by reason of the broad language and because of other considerations urged, the section was intended to and does cover a case of the character now before us. It is urged that to otherwise construe the statute would result in placing additional burdens on American ships, when concededly the purpose of the Jones Act was to benefit the American merchant marine. It may be admitted that Congress has power to place such burden upon foreign ships as well as those of American registry. (Cunard S. S. Co. v. Mellon, 262 U. S. 100; Strathearn S. S. Co., Ltd., v. Dillon, 252 id. 348.) But we are concerned, not with what Congress might have done, but what it actually has done. Its intent must be gained from the wording of the statute under consideration. Plaintiff’s position is not strengthened by reliance on the statements and opinions of legislators given in the course of debates in Congress. As was said by our Court of Appeals in Woollcott v. Shubert (217 N. Y. 212, 221): “ We are at liberty to study the debates in seeking and determining the evil against which it was aimed as a remedy. In case they clearly and definitely describe an unworthy or mischievous condition necessitating, in the legislative mind, the statute, they furnish the court, laboring to discover the intent of the Legislature, with legitimate and trustworthy aid. As Blackstone tersely expressed it, in the interpretation of statutes due regard must be had to the old law, the mischief and the remedy. The mischief may be indicated or made apparent by the debates attending the adoption of the remedy, as well as by contemporaneous events and the relevant situation as it existed.” — 218 — But the court further stated: “It is established law, however, that the statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes.” (Italics ours.) Moreover, the disclosure that the applicability of the entire act to foreign vessels was a matter of comment and concern in Congress is as much an argument against plaintiff’s contention as in favor of it. Those parts of the debates on the subject quoted show that there was a serious question with respect to such applicability. Other sections of the Jones Act are specifically made applicable to foreign vessels. (41 U. S. Stat. at Large, 1006, § 31, amdg. U. S. R. S. § 4530; 41 U. S. Stat. at Large, 1006, 1007, § 32, amdg. Seamen’s Act of 1915 [38 id. 1168, 1169], § 11; now United States Code, tit. 46, §§ 597, 599.) But section 33 contains no specific application. If it were a matter of concern as to how far this act was to apply to foreign vessels or seamen and certain sections therein were made expressly applicable thereto, it is but a fair conclusion that those sections not made applicable to foreign vessels by specific provision or by plain implication were not intended to apply to foreign vessels or seamen. The argument that this construction would result in placing a restriction upon American and not upon foreign vessels and that by reason thereof the latter would be given an advantage over the former, does not refute our conclusions. The purpose of the Jones Act was by its very words “ To provide for the promotion and maintenance of the American Merchant Marine * * *.” (41 U. S. Stat. at Large, 988, chap. 250.) A merchant marine consists not only of ships and their owners and operators, but also of seamen. Which one, if any, is the most important, it is not necessary to consider. But certainly a body of seamen is an indispensable part of any merchant marine. Shipowners and operators were given certain privileges over foreign vessels and operators. American seamen, therefore, were the logical recipients of certain privileges over those enjoyed by seamen on foreign vessels. It well might be that the privilege granted to any one of the three component parts of the merchant marine would result in disadvantage to one or both of the others. In certain cases a disability or restriction upon one would be necessary for the good of all. If the Jones Act was intended to apply in all respects to foreign vessels and if each and every restriction under its general scheme and correlative legislation was intended to apply equally to foreign vessels it would follow as a necessary corollary to the proposition advanced by the plaintiff that foreign ships, when in the ports of this country, would have been required — 219 — to furnish the same quarters as those required for American seamen and foreign seamen would be entitled to receive the same pay and rations and be entitled to all privileges of American seamen. Formerly a stevedore or longshoreman was not a seaman, but under changed conditions by which such men have assumed some of the duties heretofore devolving upon seamen, a longshoreman or stevedore under the instant circumstances is denominated a seaman. The ship on which, and not the employer for whom, the work is being done has been held to control. (International Stevedoring Co. v. Haverty, 272 U. S. 50.) Here plaintiff became a seaman by virtue of the nature of the work he was doing. But as such work was for a German ship, he should be held to be a German seaman. Unless, therefore, section 33 of the Jones Act applies to foreign vessels, the plaintiff has no cause of action under the act. Section 33 is not to be taken literally. It is to be noted that whereas its concluding words state that “ 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,” it has been held that this jurisdiction, with respect to the subject-matter, is not exclusive. (Panama R. R. Co. v. Johnson, 264 U. S. 375; Patrone v. Howlett, 237 N. Y. 394.) It does not do violence, therefore, to the section to hold that the seamen to which it applies are American and not foreign seamen. As already appears, the end sought to be achieved by the Jones Act was the promotion of an American merchant marine. To that end certain inducements were offered to shipowners and operators to take out American registry. It was just as important to induce seamen to work on vessels so registered for this purpose. Seamen so employed were also granted certain privileges. All other things being equal, a seaman would naturally prefer to be employed aboard an American vessel where in case of death compensation could be had. To hold, therefore, that section 33 of the Jones Act does not apply to foreign seamen is not to subvert the plainly avowed purpose of the legislation, but is to carry out its evident general scheme. In what way, it might be asked, would the American merchant marine be promoted by the granting of the same privileges to foreign seamen as those bestowed upon American seamen? In what manner was plaintiff’s work upon the German vessel promoting the American merchant marine? But one authority directly in point is cited by plaintiff, and even what was there said on the question here involved may be regarded as dicta. (Stewart v. Pacific Steam Navigation Co., 3 F. [2d] 329.) — 220 — On the other hand, Clark v. Montezuma Transp. Co., Ltd. (217 App. Div. 172), a decision of our Second Department, is squarely in point on the question under consideration. There the plaintiff, an American, though hired by the mate of the ship, had not signed articles. The court held that as the vessel was a British ship, the plaintiff was not an American, but a British seaman. It further held in most emphatic language, several times expressed, that section 33 relates only to American seamen and accordingly denied, plaintiff relief thereunder. Mr. Justice Young, who wrote, stated: “ I think the Jones Act, by its terms, indicates its application only to seamen employed upon American vessels.” Dicta though they may be, other reported cases seem clearly to indicate the soundness of the conclusion reached in Clark v. Montezuma Transp. Co., Ltd. (supra). (The Navarino, 7 F. [2d] 743, 744; Rainey v. New York & P. S. S. Co., 216 Fed. 449, 454.) . The plaintiff being employed upon a German vessel must be held, therefore, to have been a German seaman so far as the purview of section 33 is concerned. In determining such status, direct employment by the ship is no more important than the signing of articles. He has no cause of action, therefore, under the Jones Act. Admittedly he has none under the general maritime law. His cause of action, if any, arose under the New Jersey Death Act. Upon the facts here disclosed such right is subordinated to his remedies under the provisions of the New Jersey Workmen’s Compensation Law, by which he is bound. Upon the facts before us, that is his sole remedy, if any. For its enforcement this court clearly has no jurisdiction. It follows, therefore, that the order and judgment appealed from should be affirmed, with costs. Dowling, P. J., McAvoy and Martin, JJ., concur; Finch, J., dissents.