ent Industrial Accident Commission acted without and in excess of its jurisdiction in this matter."

And in North Pacific S. S. Co. v. Soley (1924) Cal., 223 Pac. 462, the Industrial Accident Commission was held to have no jurisdiction to make an award under the California Compensation Act where a stevedore was injured by falling down a hatchway while working in loading a ship engaged in interstate commerce while it was lying in navigable waters.

And in Payne v. Jacksonville Forwarding Co. (1923) 290 Fed. 936, where the chief engineer on a steamship, which was stranded, was injured when a hawser on which he was putting a stop broke because of the strain exerted by tugs which were attempting to pull the vessel free, it was held that he was engaged in work maritime in its nature, under a maritime contract, and the injuries were also maritime, and that the measure of liability was fixed by the maritime law, and not by the state Law.

Workmen's Compensation

And the same conclusion was reached in Young v. Clyde S. S. Co. (1923) 294 Fed. 549, in which the Florida act was held inapplicable where an employee on a steamship was injured while on board the vessel on navigable waters.

And in Pacific American Fisheries v. Hoof (1923) 291 Fed. 306, affirming (1922) 284 Fed. 174, where a watchman was injured on a vessel which was under construction, but had been launched and was lying in navigable waters, it was held that the Washington Workmen's Compensation Act does not extend to maritime torts, for which a remedy is given in admiralty, and does not encroach upon admiralty jurisdiction, and that in the case at bar there was a remedy in admiralty, and that the Compensation Act was therefore inapplicable.

And in Cassil v. United States Emergency Fleet Corp. (1923) 289 Fed. 774, where a stevedore was injured while working on a vessel, unloading a cargo, it was held in a libel in admiralty that the doctrine of fellow servant obtained, and that the Oregon Work

And in O'Hara's Case (1924) Mass., 142 N. E. 844, where two injuries were involved, one having been sustained while the claimant was working on a floating dry dock building a staging on the outside of a vessel in the dry dock, and the other injury having occurred when the claimant was working on a vessel which had been floated into a dry dock affixed to the land, it was held that admiralty jurisdiction excluded the operation of the Workmen's Compensation Act in both cases.

In Warren v. Morse Dry Dock & Repair Co. (1923) 235 N. Y. 445, 139 N. E. 569, certiorari denied in (1922) 262 U. S. 756, 67 L. ed. 1217, 43 Sup. Ct. Rep. 703, affirming (1922) 204 App. Div. 891, 197 N. Y. Supp. 955, where a workman was killed while working on a vessel in dry dock, the defendant attempted to to distinguish between death cases and others, arguing that courts of admiralty, when assuming jurisdiction in death cases, do not enforce a right of action existing under the general maritime law, but one created by the statute of a state, which supplements the maritime law in respect of torts upon local waters, and contending that what a state has created it can modify or destroy, and that the Workmen's Compensation Act applied. The court, however, refused to sustain the contention, and said:

In

"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 (1921) 257 U. S. 233, 66 L. ed. 210, 42 Sup. Ct. Rep. 89, supra. such cases, a common-law remedy is reserved to the suitor in the commonlaw courts. Judicial Code, §§ 24, 256 [U. S. Comp. Stat. §§ 991 (3), 1233, 4 Fed. Stat. Anno. 2d ed. p. 839, 5 Fed. Stat. Anno. 2d ed. p. 921]. The Workmen's Compensation Law (Consol. Laws, chap. 67) 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 P. Co. v. Jensen (1917) 244 U. S. 205, 218, 61 L. ed. 1086, 1099, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597. The result ensues, as to maritime torts, that the general right of action for injuries resulting in death remains what it was before the Compensation Law 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. 1, § 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 (Const. art. 1, § 19). It may change the groups or classes of dependents. Shanahan v. Monarch Engineering Co. (1916) 219 N. Y. 469, 114 N. E. 795. 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."

And the Warren Case was followed. and the same conclusion reached, in O'Brien v. Luckenbach S. S. Co. (1923) 293 Fed. 170, reversing (1922) 286 Fed. 301, where a carpenter was injured while working on a vessel lying at a dock.

But in Bloom v. Furness-Withy &

Co. (1923) 293 Fed. 98, where the death of one working on the deck of a vessel resulted from a maritime tort, it was recognized that no action for death was allowed by the maritime law, and that a recovery in such a case could be enforced in the maritime courts only under the state statutes giving a remedy for wrongful death, and it was held that no action could be maintained under the California Death Statute, since the Workmen's Compensation Act of that state provided that in case of injuries to employees compensation under that act should be exclusive of any other liability whatsoever. The court said: "Under the law of California the plaintiff here, under the facts alleged, could not go into a court of law and assert a claim for damages under the provisions of § 377 of the California Code of Civil Procedure. That section does not apply to her case at all. Any claim that she has must be dealt with by a board of commissioners, and she must receive allowances of money in the manner, and at the times, and for the period, which the law and the commissioners acting under it may determine that she is entitled to. Such lights as are given under the California Employers' Liability Act cannot suitably be enforced in the district court of the United States, under admiralty proceedings. From this it must necessarily be concluded that the plaintiff's demurrer to the separate and affirmative defense should be overruled, and an order will be entered accordingly."

In Madderns v. Fox Film Corp. (1923) 205 App. Div. 791, 200 N. Y. Supp. 344, where a moving picture actor suffered injury when he tripped and fell into the water from a boat used as a stage and located in navigable waters, while producing a small part of a serial picture, it was held that the case did not come within admiralty jurisdiction, and that an award under the New York Compensation Act was proper. The court stated that the fact that the accident occurred upon a boat located in navigable waters did not show conclusively that the case was within admiralty

jurisdiction, and further said: "The work of the claimant here had nothing to do with the boat, except in so far as the boat became the momentary stage for the production of a slight portion of the picture which the claimant was helping to produce. His work on the boat was merely incidental to his general duties as an actor, and had nothing to do with the boat, save to use it as a background for a moving picture which, except for this single incident, was produced upon the land. The work in which he was engaging was not maritime in its nature. employment was not a maritime contract, and if the injuries which he received were the result of a tort within the exclusive maritime jurisdiction, the appellants have failed to satisfy us that there is any evidence which would justify such a holding."

His

In Zahler v. Department of Labor & Industries (1923) 125 Wash. 410, 217 Pac. 55, the claimant was held entitled to an award under the Washington Compensation Act, which is compulsory, and includes shipbuilding as an extrahazardous employment, where the employee was killed while working as a carpenter on an incompleted ship, which had been launched and was resting in navigable waters. The court stated that a contract to build a ship is not a maritime contractciting the cases of Grant-Smith-Porter Ship Co. v. Rohde (1921) 257 U. S. 469, 66 L. ed. 321, 25 A.L.R. 1008, 42 Sup. Ct. Rep. 157, and State Industrial Commission v. Nordenholt Corp. 259 U. S. 263, 66 L. ed. 933, 25 A.L.R. 1013, 42 Sup. Ct. Rep. 473, 21 N. C. C. A. 862, which are set out in the prior annotation, to sustain its decision. With reference to the contention that the decision in the Rohde Case depended upon the nature of the contract, the court said: "Some contention is made that the language of the decision in the Rohde Case, above quoted, lends support to the view that it was rested wholly upon the nature of the contract between Rohde and his employer, apart from the nature of the employment; that is, that, their contract being made with reference to the Oregon Workmen's Compensa

tion Law, the contract became the sole source and support of the employer's contention that Rohde had no right of recovery in the courts. If this argument be sound, then the contract of employment could be rendered effective to destroy Rohde's right of recovery in admiralty, and confer jurisdiction upon a state tribunal, even if Rohde's employment had been of such a purely maritime nature as to make the admiralty jurisdiction over the question of his right to recovery for injury exclusive; that is, the contract would, in effect, confer jurisdiction upon a state tribunal which would have no jurisdiction over the subjectmatter. These considerations, we think, call for the conclusion that, while the contract was made with reference to the Oregon Workmen's Compensation Law, and in contemplation of that law governing Rohde's rights in case of his injury, the real support of his employer's contention that Rohde must look to compensation under that law is the law itself; just as any law with reference to which a contract can be lawfully made, and is made, becomes the real support of claims made under the contract, in so far as the enforceability of the contract is concerned. The contract of employment, manifestly, was not one looking to the submission to mere arbitration of any controversy that might arise over Rohde's right to compensation for any injury he might suffer in the employment; but was made looking to the submission of any such controversy to a tribunal which had, by virtue of positive law, jurisdiction over the subject-matter, and, by virtue of the employment contract, jurisdiction over the parties. We think the decisions in the Rohde Case, in so far as it makes reference to Rohde's contract of employment and the implied agreement therein, by silence of both parties, not to take their relations out from under the Oregon Workmen's Compensation Law,-this being the law's prescribed mode of election,means nothing more than this. We think it hardly possible that the court intended to hold that Rohde and his employer could, by their contract

alone, effectually confer jurisdiction over the subject-matter in question upon the state tribunal, nor even by their contract submit their persons to the jurisdiction of the state tribunal, unless the state tribunal did, in fact, have by law jurisdiction over the subject-matter; which jurisdiction the decision evidently means the state tribunal did have, because such jurisdiction did not trench upon that exclusive admiralty jurisdiction and maritime law which must be uniform throughout the United States." The court also regarded it as immaterial whether the Compensation Act was compulsory or elective.

In the Zahler Case (Wash.) supra, the court stated that, speaking generally, when there is drawn in question a claim of right arising out of a purely maritime tort, or a purely maritime contract, the claim must be determined by the rules of the Federal maritime law, regardless of any state legislation which may seem to provide otherwise, and that a state cannot by legislation impose upon an employer any obligation to contribute to a fund to pay awards under a workmen's compensation law, unless it affords protection to the employer, as against claims of workmen or their dependents payable out of the fund to which the employer is compelled to contribute, with reference to the reported case (STATE v. W. C. DAWSON & Co. ante, 512), the court said: "We are reminded by counsel of our reference in our decision in STATE v. W. C. DAWSON & Co., to the fact that our Workmen's Compensation Law is compulsory, while that of Oregon, drawn in question in the Rohde Case, was elective. Such observation was made by us, however, with reference to the question of the liability of Dawson & Company to contribute to the accident fund, under our law, for the payment of injury claims of purely maritime employees. While that observation seemed to then lend support to the conclusion there reached, it was not indispensable to that conclusion; since under no circumstance could the purely maritime employment there in question be brought under a state work

men's compensation law. The following decisions lend support to the view that, whether a state workmen's compensation law be compulsory or elective is of no consequence in determining the applicability and controlling force of such a law to the question of whether an injured employee is required to look to the compensation thereby provided, or whether he may sue in the courts as for tort when it is once determined that he is under the law, whether he come under it by his own election, or be forced under it by its terms. Netherlands American Steam Nav. Co. v. Gallagher (1922; C. C. A.) 282 Fed. 171; Duart v. Simmons (1918) 231 Mass. 313, 121 N. E. 10; North Alaska Salmon Co. v. Pillsbury (1916) 174 Cal. 1, L.R.A. 1917E, 642, 162 Pac. 93; Los Angeles Shipbuilding & Drydock Co. v. Industrial Acci. Commission (1922) 57 Cal. App. 352, 207 Pac. 416; Bockhop v. Phoenix Transit Co. (1922; Err. & App.) N. J., 117 Atl. 624."

In Travelers' Ins. Co. v. Bacon (1923) — Ga. App. -, 119 S. E. 458, it is stated in the syllabus by the court, which is the only opinion, that, assuming that the contract of employment, under which the duties of the employee were to proceed with the master's boat into navigable waters, and there fish around the bars, always in sight of land, for a compensation to be determined by the size of the catch, and return to shore and deliver the fish, and look after the boats and tackle, was a maritime contract, and also assuming that the death of the employee, who was drowned after jumping from the boat for the purpose of extinguishing flames upon his clothing, ignited by an explosion on the boat, which was at the time in a creek, constituted a maritime tort, it did not appear that the general employment contracted for, or the work performed, had any direct relation to navigation or maritime commerce, but was a purely local matter; and under such circumstances regulation of the rights. and liabilities of the parties by a local rule would not necessarily work material prejudice to any characteristic feature of the general maritime law,

or interfere with the proper harmony or uniformity of that law in its international or interstate relations.

And it was further stated in the syllabus to the Bacon Case that the employer and employee, having both accepted and proceeded under a state workmen's compensation statute, could not be said to have contracted consciously with each other in contemplation of the general system of admiralty law governing their rights, obligations, and consequent liabilities, in case the employee should be accidentally injured while engaged in fishing on inland waters around sand bars in sight of land.

Amendment of Judicial Code, and its effect.

(Supplementing annotation in 25 A.L.R. 1042.)

It will be observed that in the reported case (STATE v. W. C. DAWSON & Co. ante, 512), which is set out in the annotation in 25 A.L.R., p. 1042, it was decided that a statute of a state, attempting to bring the business of stevedores who work upon boats within the operation of its Workmen's Compensation Law, so as to require the employer to contribute to the insurance fund, was unconstitutional, in view of the provision of the Federal Constitution extending the judicial power of the Federal courts to all cases of admiralty and maritime jurisdiction, and this decision was affirmed by the United States Supreme Court in (1924) U. S., 68 L. ed. -, Adv. Ops. p. 339, 44 Sup. Ct. Rep. 302, where the court, in the same case, affirmed the decision in James Rolph Co. v. Industrial Acci. Commission (1923) Cal., 220 Pac. 669, holding unconstitutional the Amendment of June 10, 1922, referred to in the prior annotation, at page 1043, which added to the provision that district courts should have exclusive jurisdiction, of all civil causes of admiralty marine jurisdiction, saving to suitors. in all cases the right of a common-law remedy where the common law is competent to give it, the words, "and to claimants for compensation for injuries to or death of persons other than the master or members of the

and

crew of a vessel, their rights and remedies under the workmen's compensation law of any state, district, territory or possession of the United States." Mr. Justice McReynolds, in delivering the opinion of the court, which was dissented from by Mr. Justice Brandeis, said: "The judgments below must be affirmed; the doctrine of Knickerbocker Ice Co. v. Stewart (1920) 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. Rep. 438, 20 N. C. C. A. 635, to which we adhere, permits no other conclusion. There we construed the Act of October 6, 1917, chap. 97, 40 Stat. at L. 395, Comp. Stat. § 991 (3), 1233, Fed. Stat. Anno. Supp. 1918, pp. 401, 415, which undertook to amend the provision of §§ 24 and 256, Judicial Code, which saves to suitors in all civil causes of admiralty and maritime jurisdiction 'the right of a common-law remedy where the common law is competent to give it,' by adding the words, 'and to claimants the rights and remedies under the workmen's compensation law of any state.' After declaring the true meaning and purpose of the act, we held it beyond the power of Congress. Except as to the master and members of the crew, the Act of 1922 must be read as undertaking to permit application of the workmen's compensation laws of the several states to injuries within the admiralty and maritime jurisdiction, substantially as provided by the Act of 1917. The exception of master and crew is wholly insufficient to meet the objections to such enactments heretofore often pointed out. Manifestly, the proviso which denies jurisdiction to district courts of the United States over causes arising out of the injuries specified was intended to supplement the provision covering rights and remedies under state compensation laws. that provision is ineffective, so is the proviso. To hold otherwise would bring about an unfortunate condition wholly outside the legislative intent. Counsel insist that later conclusions of this court have modified the doctrine of Southern P. Co. v. Jensen (1917) 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524,

As