The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.
In this personal injury case, third-party defendant United
States (the "government") moves for summary judgment. For
reasons that follow, the motion is denied.
On August 29, 1986, plaintiff Terry Collins, an employee of
the government's National Park Service, was injured on Ellis
Island while using a stump grinder manufactured by defendant
Promark Products, Inc. Since the accident, plaintiff has
received workers' compensation benefits pursuant to the
Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
In February 1987, plaintiff commenced the main action
against defendant Promark Products, Inc., alleging various
products liability causes of action. On May 1, 1989, Promark
impleaded the government, alleging, among other things, that
it had negligently maintained the machine and failed
adequately to instruct plaintiff on how to use it. All parties
agree that the allegedly negligent acts of the government took
place on either of two areas on Ellis Island: "Island 2" or
the "Festival Lawn". Both of these areas lay submerged under
water until 1899 and 1922, respectively, when the government
filled them in to increase Ellis Island's size.
The government here contends the payment of workers'
compensation benefits to the plaintiff bars the third-party
action against it. It arrives at this conclusion by way of the
Federal Tort Claims Act, which limits the government's
liability to "those torts committed by government employees
`under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the [tortious] act or omission
occurred.'" Akutowicz v. U.S. (2d Cir. 1988), 859 F.2d 1122,
1125 (quoting 28 U.S.C. § 1346(b)). The government asserts that
"the law of the place where the [tortious] act or omission
occurred" is the law of New Jersey rather than of New York.
The distinction is critical. Under New Jersey law, the
third-party action would not lie because workmen's
compensation is deemed to be the sole liability of an employer
for an employee's work-related injury. See Ramos v.
Browing-Ferris Indus. (1986), 103 N.J. 177, 510 A.2d 1152; see
also Welch v. Schneider National Bulk Carriers (D.N.J. 1987),
676 F. Supp. 571. New York, however, does not so limit an
employer's liability. See Dole v. Dow Chemical Co. (1972), 30
N Y2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. Thus, the issue
of which law governs "Island 2" and the "Festival Lawn" is
determinative of the instant motion.
Although we have been treated to a host of historical
documents tracing the title of Ellis Island as between the
government on the one hand and each of the two states on the
other, we find dispositive an agreement entered into between
the two states in 1833 and consented to by Congress the
following year. As Congress noted, the agreement was entered
into "for the purpose of agreeing upon and settling the
jurisdiction and territorial limits of the two states." Act of
June 28, 1834, art. 1, ch. 126, 4 Stat. 708, 709.
The first article of the agreement sets as the boundary line
between the states the mid-line of the waters that separate
them. Id. The second article expressly reserves to New York
state "its present jurisdiction" over Ellis Island and provides
that New York "shall also retain exclusive jurisdiction of and
over the other islands lying in the waters above mentioned and
now under the jurisdiction of that state." Id. The third
The state of New York shall have and enjoy
exclusive jurisdiction of and over all the waters
of the bay of New York; and of and over all the
waters of Hudson river lying west of Manhattan
Island . . . subject to the following rights of
property and of jurisdiction of the state of New
Jersey, that is to say:
1. The state of New Jersey shall have the
exclusive right of property in and to the land
under water lying west of the middle of the bay of
New York, and west of the middle of that part of
the Hudson River which lies between Manhattan
Island and New Jersey.
2. The state of New Jersey shall have the
exclusive jurisdiction of and over the wharves,
docks, and improvements, made and to be made on the
shore of the said state . . .
3. The state of New Jersey shall have the
exclusive right of regulating the fisheries on
the westerly side of the middle of the said
waters, Provided, That the navigation be not
obstructed or hindered. ...