Warren v. Morse Dry Dock Repair Co.

Cardozo, J.

The plaintiff is the administratrix of the estate of Francis J. Warren, who met his death while *447 working on the steamship Ardmore, then undergoing repairs in the defendant’s dry dock.

Most of the questions in the case are answered by our opinion in Danielsen v. Morse Dry Dock & Repair Company ( 235 N. Y. 439 ).

The defendant attempts a distinction between death cases and others. Courts of admiralty, when assuming jurisdiction in cases of death, do not enforce a right of action existing under the general maritime law (Western Fuel Co.

v. Garcia, 257 U. S. 233, 240 ). They enforce a right of action created by a statute of the state, which supplements the maritime law in respect of torts upon the local waters (Western Fuel Co.

v. Garcia, supra, p. 242 ). The argument for the defendant is that what the state has created, it may modify or destroy.

Southern Pacific Co.

v. Jensen ( 244 U. S. 205 ) and Knickerbocker Ice Co.

v. Stewart ( 253 U. S. 149 ) are inconsistent with the supposed distinction. In both cases the claimants were dependents seeking compensation under the act for the death of their relatives killed in maritime work upon navigable waters. Compensation was refused upon the ground that applied to such a situation, the act was invalid.

The law of maritime torts is what the maritime law declares it to be. To a limited extent, the maritime law permits its rules to be supplemented by local statutes, which it then adopts and enforces (Western Fuel Co.

v. Garcia, supra).

In such cases, a common-law remedy is reserved to the suitor in the common-law courts (Judicial Code, §§ 24, 256). The Workmen’s Compensation Act does not lend itself to enforcement in the maritime courts. It does not lend itself to enforcement in the common-law courts according to common-law remedies. For these reasons it is inoperative to supplement or modify the maritime law (Southern Pacific Co.

v. Jensen, supra, at p. 218 ). The result ensues, as to maritime torts, that the general right of action for injuries resulting *448 in death remains what it was before the compensation act was passed. The legislature intended, in passing that act, not to abolish every remedy, but to substitute one remedy for another. It has no power, indeed, under the State Constitution (Art. I, § 18) to abrogate the right of action for injuries resulting in death, except by supplying to the dependents of employees a new form of compensation (Constitution, art. I, § 19). It may change the groups or classes of dependents (Shanahan v. Monarch Engineering Co., 219 N. Y. 469 ). It may not say that those whom it classifies as dependents shall be left without a remedy. To the extent that the substitution of a new remedy is ineffective, the old one survives.

We have stated the law as we understand that the Supreme Court has declared it. We follow that declaration as “ the supreme law of the land.” (U. S. Constitution, art. VI, § 2.)

The judgment should be affirmed with costs.

His cock, Ch. J„ Hogan, McLaughlin, Crane and Andrews, JJ., concur; Pound, J., absent.

Judgment affirmed, etc.