Sebastiana Insana, mother of Guiseppe Insana, asked of the New York State Industrial Commission an allowance under the Workmen's Compensation Law (Consol. Laws, c. 67) on account of her son's death, which she claimed resulted from accidental injuries received May 15, 1918, in the course of his employment as a longshoreman by the Nordenholt Corporation then unloading a vessel lying in navigable waters at Brooklyn. The cargo consisted of bags of cement. These were hoisted to the dock and there tiered up by Insana and other longshoremen. While thus engaged, he slipped and fell on the dock.
The Commission found 'the accidental injuries which the said deceased sustained while working for his employer when he fell from the pile of bags to the floor were the activating cause of his death, and his death was a direct result of the injuries sustained by him while engaged in the regular course of his employment,' and awarded compensation as specified by the statute. Upon authority of Matter of Keator v. Rock Plaster Manufacturing Co., 224 N. Y. 540, 120 N. E. 56, and Matter of Anderson v. Johnson Lighterage Co., 224 N. Y. 539, 120 N. E. 55, the Appellate Division reversed the award (Insana v. Nordenholt Corporation, 195 App. Div. 913, 185 N. Y. Supp. 933), and the Court of Appeals affirmed its action, without opinion, October 25, 1921 (232 N. Y. 507, 134 N. E. 549).
In both the Matter of Keator and of Anderson, the employee suffered injuries on land while helping to unload a vessel lying in navigable waters. The Court of Appeals held, when so injured, he was performing a maritime contract, and that for reasons stated in Matter of Doey v. Howland Co., Inc., 224 N. Y. 30, 120 N. E. 53, the Industrial Commission had no jurisdiction to make an award. While making repairs on an oceangoing vessel lying at the dock in navigable waters, Doey fell down the hatchway and sustained fatal injuries. The Appellate Division reversed an award of compensation, and the Court of Appeals affirmed its action, holding that, as Doey was performing a maritime contract, the Commission had no jurisdiction, under the doctrine of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, and Clyde Steamship Co. v. Walker, 244 U.S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116. It said:
'Two questions are presented: (a) Was Doey, at the time of his death, engaged in the performance of a maritime contract? * * * 'If the first question be answered in the affirmative, then it necessarily follows, from the decisions of the Supreme Court of the United States above referred to [Southern Pacific Co. v. Jensen, and Clyde Steamship Co. v. Walker], that the commission had no authority to make the award in question. In determining whether a contract be of maritime nature, locality is not controlling, since the true test is the subject-matter of the contract-the nature and character of the work to be done. Erie R. R. Co. v. Welsh, 242 U.S. 303. In torts the rule is different. There, jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters. Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U.S. 52. An award under the Workmen's Compensation Law is not made on the theory that a tort has been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. Matter of Post v. Burger & Gohlke, 216 N. Y. 544. The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the employee be injured, will pay to him a certain sum to compensate for the injuries sustained, or if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrongdoing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment.
'In the present case, upon the conceded facts, I am of the opinion that Doey was, at the time he met his death, engaged in the performance of a maritime contract. His employer had taken a contract to repair an ocean-going vessel, preparatory to its taking on a cargo of grain. Doey was one of several carpenters employed to make the necessary changes. He was, at the time he was killed, engaged in such work on a steamship then in navigable waters.
