
    Paul Oehler, Plaintiff, v. The Hamburg-American Line, Defendant.
    (Supreme Court, New York Trial Term,
    February, 1914.)
    Ships and shipping—'ship on high seas detached portion of country whose flag she flies —common law action to recover for injuries received on high seas by seaman on vessel flying German flag.
    A ship on the high seas is a detached, floating portion of the country whose flag she flies, and the laws of that country govern in cases of torts committed on such vessel.
    
      Where plaintiff engaged by defendant at the port of Few York as a seaman on a German vessel flying the German flag was injured on the high seas by falling down a defective stairway, a defense in a common law action to recover for such injuries, that plaintiff’s sole right to recover is through an organization created under the German law to protect German seamen' and to compensate them and their dependents for injuries or death occurring while in the service of German vessels is legally sufficient, and a complete ba~ to the action, and where the facts of such defense are admitted by plaintiff on the trial the complaint must be dismissed on the merits.
    Action by Paul Oehler against Hamburg-Ameribauische Paeketfahrt Aetien Glesellsehaft (Hamburg-American Line). On trial, both parties waived a jury, defendant admitted the facts alleged in the complaint, plaintiff admitted the facts alleged in the separate defense in defendant’s answer, and both parties moved for judgment.
    M. Strassman (Don R. Almy and William S. Evans, of counsel), for plaintiff.
    A. Leonard Brougham, for defendant.
   Cohalan, J.

The parties to the action have waived the right of a trial by jury, and a question of law only is involved. It is admitted that the plaintiff was employed by the defendant as a member of the crew of the steamship Allemania; that he was engaged at the port of New York for a trip to the West Indies and return; that three days after his hiring, in falling down a stairway leading from the promenade deck to the main deck of the vessel, he sustained personal injuries; and that his injuries were due to the carelessness and neglect of the defendant.

The defense is that the vessel was a German seagoing vessel, sailing on the high seas under the German flag; and that the sole right of the plaintiff to recover compensation is through the See-Berufsgenossenschaft,” an organization created under the German law for these purposes: (1) To protect German seamen, and (2) to compensate them and their dependents for injuries or death occurring while in the service of German vessels.

The subject-matter for consideration is the legal sufficiency of the defense interposed. The complaint alleges a common-law cause of action, as in the ordinary master and servant case, for damages sustained by reason of the master’s neglect to furnish a safe place in which to work and reasonably safe appliances with which to work.

As to the complaint: (1) If the allegations of the complaint be conceded, that the defendant maintained a balustrade in a def ective and dangerous .condition, and violated its duty, after notice, in regard to its safety, and as a consequence the plaintiff was injured, the plaintiff is without relief, suing under the common law. It would seem that his rights are to be determined by the maritime law, and the maritime law follows the ship wherever she goes in the prosecution of her enterprise. Roberts v. Skolfield, 20 Fed. Cas. No. 11917; City of Alexandria, 17 Fed. Repr. 390; Ives v. South Buffalo R. Co., 201 N. Y. 271; The Osceola, 189 U. S. 158. The famous case of Ives v. South Buffalo R. R. Co., supra, while it is not decisive in this case, holds that the contracts and services of seamen are exceptional in character. The court said: “ When he (the seaman) is sick or injured he is entitled to be cared for at the expense of the ship, and for the failure of the master to perform his duty in this regard, the ship or the owner is liable. That is a right given to the seaman, and a duty enjoined upon the master, by the plainest dictates of justice, which arises out of the necessities of the case; and, because of the reason of the rule, the right and duty cease when the contract has terminated and the seaman has been returned to the port of shipment or discharge, or has been furnished with means to do so. But beyond this duty on the part of the master or owner, there seems to be no liability whatever for injuries sustained by the seaman in the course of his work.” •

In the case of The Osceola, supra, the court held: That the seaman is not allowed to recover an indemnity for the negligence of the master or any member of thé crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident.”

There are cases which hold that where a seaman has sustained injuries by reason of the unseaworthiness of the vessel he may recover damages. But the complaint in this case does not allege that the vessel was unseaworthy.

As to the answer: (2) The plaintiff was employed on a German vessel flying the German flag, and it was on the high seas, outside the jurisdiction of the United States, when plaintiff was injured.

It is no new legal principle that a ship on the high seas is a detached, floating portion of the country whose flag she flies, governed exclusively by the laws of that country. The Scotia, 14 Wall. 170; La Bourgogne, 210 U. S. 95, 138; The Hamilton, 207 id. 398, 405; McDonald v. Mallory, 77 N. Y. 546. Minor in Conflict of Laws (§ 195), says : In case of torts committed on the high seas, the tort must be regarded as committed in the territory of the State or country to which the vessel belongs. The law of the flag is the lex loci delicti.”

The accident, therefore, must be viewed as though it occurred within the physical territory of Germany. The court cannot judicially know or presume that there is a cause of action for damages for the master’s negligence under the laws of Germany. Savage v. O’Neill, 44 N. Y. 298; Whitford v. Panama R. R. Co., 23 id. 465; Cuba R. R. Co. v. Crosby, 222 U. S. 473. Hence •the plaintiff, in order to maintain an action for damages herein, should have pleaded and proved that the law of Germany afforded him such a cause of action. It is the rule in this state that the law of the place where the tort occurs is the law by which the liability of the defendant is to be determined. McDonald v. Mallory, 77 N. Y. 546; The Lamington, 87 Fed. Rep. 752. The'progressive Workmen’s Compensation Law, recently passed by the legislature of this state, recognizes that employees on foreign vessels, even when in our territorial waters, are not to be subjected to the operation of the law. Laws of 1913, chap. 816, art. 1, § 2. In group 8 thereof, referring to employees engaged in certain specified hazardous employments, the law reads: ‘ The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company. ’ ’

The plaintiff asserts that the contract was one of hiring made in New York, and that, therefore, the laws of New York must be read into the contract on the theory that the parties may be presumed' to have contracted with reference to the laws of this state. The presumption is applied in some cases to contracts involving the safe carriage of goods or passengers by common carriers. But, even if the rule in contract cases were applied herein, no different result would be reached than is contended for by the defendant; for there is complete agreement between the tort and contract rules that are applicable to the facts in this case. The rule in contract cases, which do not fall within some reasonable exception, is stated in Dickinson v. Edwards, 77 N. Y. 573, as follows: “The general rule is and has been, that where the contract either expressly or tacitly is to be performed in a given country, there the presumed intention of the parties is that it is to be governed by the law of the place of performance, as to its validity, nature, obligation, and interpretation.” See, also, Hibernia Bank v. Lacombe, 84 N. Y. 367, 378; Manhattan L. Ins. Co. v. Johnson, 188 id. 113.

I am constrained to hold that the defense set forth in the answer and admitted by the plaintiff is legally sufficient and a complete bar to the prosecution by the plaintiff in this action. The complaint is dismissed on the merits.

Complaint'dismissed on the merits.  