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AGNES PEDERSEN v. MANITOWOC COMPANY (12/03/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43742 <http://www.versuslaw.com>; 255 N.E.2d 146; 25 N.Y.2d 412 decided: December 3, 1969. AGNES PEDERSEN, AS ADMINISTRATRIX OF THE ESTATE OF KARL PEDERSEN, DECEASED, ET AL., APPELLANTS,v.MANITOWOC COMPANY, INC. ET AL., DEFENDANTS, AND FREDERICK SNARE CORPORATION ET AL., RESPONDENTS Pedersen v. Manitowoc Co., 29 A.D.2d 741, reversed. Counsel Morton J. Heckerling for appellants. John J. Bradbury and J. Robert Morris for respondents. Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel, Jasen and Gibson concur. Author: Scileppi


Pedersen v. Manitowoc Co., 29 A.D.2d 741, reversed.

Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel, Jasen and Gibson concur.

Author: Scileppi

 Plaintiffs Stottler and Sepinski and decedent Pedersen were employed on a barge and crane anchored in the Hudson River which was being used in the construction of concrete supports for the Beacon-Newburgh Bridge in Orange County. Their duties included the maintenance and operation of the barge and equipment which was owned by one of the members of the joint venture employer, Snare-Dravo, which was acting as an independent contractor in the construction of the bridge.

On August 15, 1962 the three men were injured when part of the crane on the barge broke causing them to be thrown into the river. Stottler and Sepinski suffered injuries and Pedersen was killed. Plaintiffs applied for, and after hearings, were granted workmen's compensation benefits.*fn1

In May, 1963 plaintiffs commenced the instant action against the Frederick Snare Corporation and the Dravo Corporation, respondents herein, and others, not here involved, seeking damages for the personal injuries sustained by Edward Sepinski and Russell Stottler and for pain and suffering and wrongful death of Karl Pedersen allegedly caused by respondents' negligence or by the unseaworthiness of the vessel. Respondents moved for summary judgment and for dismissal of the complaint on the grounds that plaintiffs failed to make out causes of action under the Jones Act,*fn2 or general maritime law, and that plaintiffs by their active participation in the workmen's compensation proceedings and their acceptance of the benefits awarded pursuant thereto waived any rights they may have had. The trial court denied respondents' motion; the Appellate Division reversed and granted the motion on the ground that: "Plaintiffs, having moved in workmen's compensation, actively participating in the hearings therein until an award was made, have effectively compromised their claim and waived any right to proceed against their employers in this action (Dacus v. Spin-Nes Realty & Constr. Co., 29 A.D.2d 32; Workmen's Compensation Law, § 113; cf. Williams v. Hartshorn, 296 N. Y. 49)."

It is our opinion that plaintiffs have stated sufficient facts to make out causes of action and that the determination of the Appellate Division that the plaintiffs have, as a matter of law, waived their maritime rights is erroneous.

It has been well established in the Federal jurisdictions that the mere acceptance of workmen's compensation benefits will not bar subsequent Federal maritime actions for the same occurrence unless there is an express waiver (Reed v. The Yaka, 373 U.S. 410; Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525; Lawrence v. Norfolk Dredging Co., 194 F. Supp. 484, affd. 319 F. 2d 805; cert. den. 375 U.S. 952). The issue of waiver arises as a result of the language in section 113 of the New York Workmen's Compensation Law, which provides, in relevant part, that: "awards * * * may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty * * * rights and remedies".

The reversal below rested squarely on the Appellate Division opinion in Dacus v. Spin-Nes Realty & Constr. Co. (29 A.D.2d 32) in which the court stated, without reservation, that: "Section 113 of the Workmen's Compensation Law provides that, if both employer and employee agree to submit the matter to the Workmen's Compensation Board, the latter may accept jurisdiction. If the parties so submit and continue without objection to the jurisdiction until an award is made and paid, this constitutes a compromise of the claim". (29 A.D.2d, at p. 34.)

Following the Appellate Division reversal in the instant case, we reversed Dacus and declared that the issue of whether a recipient of workmen's compensation benefits has waived his Federal maritime rights is a question of fact, and that section 113 may not be imposed upon compensation claimants unless there is an express waiver of maritime rights (Dacus v. Spin-Nes Realty & Constr. Co., 22 N.Y.2d 427). However, we stated in Dacus (p. 430) that acceptance of payments "over a period of years" could be a waiver but Dacus is not a case in which the employee accepted compensation benefits without informing the employer of the possibility of litigation in the courts. Since this action was commenced only nine months after the accident, it is clear that claimants did not accept compensation payments for a protracted period. However, respondents allege that the plaintiffs concealed their intentions to bring maritime actions and that Dacus does not apply to such a situation. Whether the plaintiffs concealed their intentions to sue the respondents, as alleged, or whether they gave actual notice of the future lawsuit, as plaintiffs allege, is a question of fact for the jury to determine and, therefore, summary judgment should not have been granted. Plaintiffs should have the opportunity to present the issue of waiver at a trial -- including any relevant documents evidencing their intention not to waive their right to other relief -- along with the other factual issues of the case.

Respondents' additional contention that the complaints fail to state facts sufficient to constitute causes of action for negligence under the Jones Act or for breach of the warranty of seaworthiness under the general maritime law is without merit. By section 688 of title 46 of the United States Code, popularly known as the Jones Act, Congress sought to create a cause of action by which injured seamen could obtain relief (Pure Oil Co. v. Suarez, 384 U.S. 202). This statute, in relevant part, states:

"§ 688. Recovery for injury to or death of seaman.

"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 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".

In addition to the employer's obligation of due care, owners have also traditionally been obligated to maintain seaworthy vessels, and if defects in the hull, equipment, or structure cause injury to a seaman the owner will be liable for breach of the warranty of seaworthiness where, of course, no proof of negligence is required (Riley v. Agwilines, Inc., 296 N. Y. 402; Seas Shipping Co. v. Sieracki, 328 U.S. 85). Plaintiffs, in their pleadings, allege violations of these obligations. The complaints of the three plaintiffs contain the following, or similar language: "Upon information and belief, said Derrick #156, at the times referred to herein, was a vessel in navigable waters in the Hudson River, and the negligence of the owners and operators of said vessel and its crane and appurtenances and/or the unseaworthiness of said vessel and crane, their appliances and appurtenances, caused and/or contributed to the accident described herein, and his resulting injuries and death, for all of which damages are sought from the responsible defendant or defendants under this cause of action."

In addition, the complaints recite factual allegations concerning: the nature of the accident; the relationship between the parties; and the nature of respondents' interest in the barge and crane. Clearly plaintiffs state sufficient facts in their complaints to put defendants on notice of the acts they were alleged to have committed. The mere fact that plaintiffs failed to specifically allege a violation of the Jones Act or maritime law is not fatal to the complaints (Mullen v. Fitz Simons & Connell Dredge & Dock ...


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