Opinion
June 18, 1909.
Everett Masten, for the appellant.
Martin T. Manton, for the respondent.
Present — HIRSCHBERG, P.J., JENKS, GAYNOR, RICH and MILLER, JJ.
The defendant is a foreign corporation owning the steamship Northwestern, used in carrying oil from points in the State of Texas to Brooklyn. This vessel, after being unloaded, was placed in the dry dock in Brooklyn for repairs. The plaintiff shipped as an able-bodied seaman and was put to work in assisting to paint her sides. For this purpose a plank twelve feet long, ten inches wide and two inches thick, at each end of which there was a cross cleat about four feet long and five inches wide, was used. Around each end of the cleats two ropes were placed, tied as a sling, and spliced about five feet above the plank, from which a single rope extended to the deck of the vessel, by means whereof the plank was lowered and raised as the work demanded. On the day of the accident the plaintiff and one Johnson slid down the ropes to the plank, which was then about twelve feet below the deck, and commenced to paint. A short time afterwards Johnson returned to the deck of the vessel. The plaintiff remained on the plank and continued his work; while so engaged he says he heard a snap and one of the ropes supporting the plank broke, tilting the plank and causing him to fall, inflicting serious injuries, for which he has recovered. Evidence was given on the part of defendant tending to show that plaintiff was not injured in the manner testified to by him, and that the accident was due entirely to his own negligence. The learned trial court charged the jury that unless they found that one of the ropes did break, resulting in the accident, the plaintiff could not recover, and the jury resolved this disputed question of fact in favor of the plaintiff. It is urged that their verdict is against the weight of evidence, and that the judgment must be reversed for this reason. This contention is without merit. The case was submitted to the jury under the charge that the plaintiff's right of action rested upon the common-law liability of a master to his servant, as modified by the provisions of section 18 of the Labor Law (Laws of 1897, chap. 415), and it is argued by the learned counsel for the appellant that the Labor Law is not applicable to this case, for the reason that the vessel was in commission and engaged in interstate commerce, was owned by a Texas corporation, and that the regulation of a vessel of Texas and the rights of its crew could not be established by a general law of this State, but are vested solely in Congress; and, furthermore, that the vessel is not a structure, and, therefore, not within the provisions of the Labor Law. I cannot assent to this proposition. The vessel was not in commission; it was entirely out of the water, and in a dry dock in this State for repairs; the plaintiff was employed in this State; he was injured in this State, and its laws are controlling in determining the liability of the defendant in this action. The statute is not limited, as contended, to mechanics, laborers and workingmen, but in terms applies to any "person employing * * * another to perform labor of any kind in the * * * repairing, * * * or painting of a * * * structure," and a vessel is a structure within the meaning of the Labor Law. ( Chaffee v. Union Dry Dock Co., 68 App. Div. 578, 582; Holloway v. McWilliams, 97 id. 360; Madden v. Hughes, 104 id. 101; affd., 185 N.Y. 466.)
The judgment and order must be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.