Opinion
May 7, 1915.
James B. Henney [ Andrew J. Nellis and Merwyn H. Nellis of counsel], for the appellants.
Egburt E. Woodbury, Attorney-General [ E.C. Aiken, Deputy Attorney-General, and Jeremiah F. Connor of counsel], for the Commission.
The claimant above named was a resident of this State and was employed as a captain of lighters by the Jarvis Lighterage Company, a New York corporation, whose principal place of business was in New York city. The second conclusion of fact as made by the Commission is that "while Edward Edwardsen was on board the lighter `Bradford' owned by Jarvis Lighterage Company, and while engaged in delivering bags of beans from the lighter to horse trucks at Jersey City, State of New Jersey, he was struck by a bag hook * * *." The Commission ruled that the claim came within the provisions of the act and made the usual award, which is now appealed from on the ground that the act in general has no extraterritorial effect and that the employment of claimant was not that defined in group 8 of section 2 of the Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), which includes "The operation, within or without the State, including repair, of vessels other than vessels of other States or countries used in interstate or foreign commerce, when operated or repaired by the company." Group 10 includes "Longshore work, including the loading or unloading of cargoes or parts of cargoes," but does not contain any provision making it applicable to work outside of the State.
We think that the captain of a lighter may fairly be said to be engaged in its "operation" continuously from the beginning to the end of a round trip, including the loading and unloading of the craft, so long as he works upon it. We may, perhaps, assume that as a lighter makes but short trips a considerable part of the ordinary duties of its captain is to superintend or assist in its loading and unloading. If extra men were employed for this work their duties might properly come under the term "longshore work" as described in group 10, but we think it would be unreasonable to hold that the captain of such a boat ceased to be employed in its "operation" the moment it began to load or unload.
If the claimant was engaged in operating the lighter when injured his right of recovery should not be defeated by his failure to show specifically that the vessel was not one of another State or country used in interstate or foreign commerce. As the employer and owner of the boat was a New York corporation, the presumption is that such was the case, and if appellants claimed a defense for the reason that such was not the case, we think it was incumbent upon them to have proved it upon the hearing before the Commission.
The award of the Commission should be confirmed, with costs.
All concurred.
Award affirmed.