define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. It was recognized that to some extent this could be done. That case involved the question as to whether the work of a stevedore was such that it could be brought within the Workmen's Compensation Act of the state of New York. It was held that this could not be done, because it would work material prejudice to the characteristic features of the general maritime law, and interfere with the proper harmony and uniformity of that law in its international and interstate relations. It was there said: "And plainly, we think, no such legislation is valid if it contravenes the essential purpose pressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. limitation, at least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national laws by the Constitution itself. These purposes are forcefully indicated in the foregoing quotations from The Lottawanna.'

ex

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In the same opinion it was further stated: "The work of a stevedore in which the deceased was engaging is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction."

In Chelentis v. Luckenbach S. S. Co. 247 U. S. 372, 62 L. ed. 1171, 38 Sup. Ct. Rep. 501, 19 N. C. C. A. 309, referring to Southern P. Co. v. Jensen, it was said: "Under the doctrine approved in Southern P. Co. v. Jensen, no state has power to abolish the well-recognized maritime rule concerning measure of recovery, and substitute therefor the

full indemnity rule of the common law. Such a substitution would distinctly and definitely change or add to the settled maritime law; and it would be destructive of the 'uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.'"

In Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. Rep. 438, 20 N. C. C. A. 635, the 1917 Amendment, as above stated, was held to be unconstitutional. The same reasons which defeated the constitutionality of that act would apply here, to the effect that the state law cannot encroach upon admiralty matters where to do so would work material prejudice to the characteristic features of the general maritime law, or interfere with the proper harmony and uniformity of that law in its international and interstate relations. This court is not holding the 1922 Amendment, wherein it attempts to devest the district court of jurisdiction, of no effect. The more precise question is whether the state has a right to encroach upon the general maritime law in a way that would affect its harmony and uniformity in its interstate relations. In the Knickerbocker Case, after reviewing the more recent opinions as well as the earlier cases, the court stated that it accepted the following doctrine: "The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law, and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took

from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law, or to interefere with its proper harmony and uniformity in its international and interstate relations. To pre

serve adequate harmony and appropriate uniform rules relating to maritime matters and bring them within control of the Federal government was the fundamental purpose; and to such definite end Congress was empowered to legislate within that sphere."

Further, it was said:

"Having regard to all these things, we conclude that Congress undertook to permit application of workmen's compensation laws of the several states to injuries within the admiralty and maritime jurisdiction, and to save such statutes from the objections pointed out by Southern P. Co. v. Jensen. It sought to authorize and sanction action by the states in prescribing and enforcing, as to all parties concerned, rights, obligations, liabilities, and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work.

"And, so construed, we think the enactment is beyond the power of Congress. Its power to legislate concerning rights and liabilities within the maritime jurisdiction, and remedies for their enforcement, arises from the Constitution, as above indicated. The definite object of the grant was to commit direct control to the Federal government; to relieve maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the Union.

"Considering the fundamental purpose in view and the definite end for which such rules were accepted, we must conclude that, in their characteristic features and essential international and interstate relations, the latter may not be repealed, amended, or changed except by legislation which embodies both the will and deliberate judgment of Congress. The subject was intrusted to it to be dealt with according to its discretion-not for delegation to others. To say that, because Congress could have enacted a compen

sation act applicable to maritime injuries, it could authorize the states to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated, but actually established; it would defeat the very purpose of the grant."

The cases of the Grant-SmithPorter Ship Co. v. Rohde, 257 U. S. 469, 66 L. ed. 321, 25 A.L.R. 1008, 42 Sup. Ct. Rep. 157, and Western Fuel Co. v. Garcia, 257 U. S. 233, 66 L. ed. 210, 42 Sup. Ct. Rep. 89, are not out of harmony with the previous holdings of that court. In the Grant-Smith-Porter Ship Co. Case the Workmen's Compensation Law of the state of Oregon was under consideration. By that law an option is given both to the employers and the workmen to accept the compensation law or to reject it. It was there said that, since both parties had accepted and proceeded under the statutes by making payments to the industrial accident fund, it could not properly be held that they contracted with each other in contemplation of the general system of maritime law. Since they did not contract with each other in contemplation of the general system of maritime law, the regulation of the rights, obligations, and consequent liabilities of the parties, as between themselves, 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. The law of this state differs from that of Oregon, because here, as pointed out in Shaughnessy v. Northland S. S. Co. 94 Wash. 325, 162 Pac. 546, Ann. Cas. 1918B, 655, neither the employer nor the employee has any right of election as to whether he will come under, and be governed by, the provisions of the act.

In Western Fuel Co. v. Garcia, supra, a citizen, a resident of Cali

fornia, was instantly killed while employed as a stevedore in the hold of a vessel then anchored in San Francisco bay and discharging her cargo. Recovery was sought in admiralty, and it was there held that a state statute, giving a right of action in such cases, would be sustained, because it did not work material prejudice to the characteristic features of the general maritime law, or interfere with the proper harmony and uniformity of that law in

its international and interstate relations. After reviewing prior decisions, it was said: "As the logical result of prior decisions we think it follows that, where death upon such waters results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given. The subject is maritime and local in character and the specified modification of, or supplement to, the rule applied in admiralty courts when following the common law, will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. Southern P. Co. V. Jensen, 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597.”

The question there was whether the state law could supplement the general admiralty law, which was to be administered in the Federal courts, and not whether the state could take jurisdiction over a maritime tort. The bringing of an employer engaged in the stevedore business within the provisions of the Industrial Insurance Act would take from the admiralty jurisdiction jurisdiction conferred by the Federal Constitution upon the United States, and vest it in the state. As we read the decisions of the Federal

Workmen's compensationapplication of state law to stevedoring business.

Supreme Court, this may not be done, because to do so, as pointed out in Southern P. Co. v. Jensen and Knickerbocker Ice Co. v. Stewart, supra, would work material prejudice to the characteristic features of the general maritime law, and interfere with the proper harmony and uniformity of that law in its international and interstate relations. The judgment will be affirmed. Tolman, JJ., concur. Parker, Ch. J., and Fullerton and

A petition for rehearing having been granted, the following Per Curiam response was handed down February 16, 1923 (122 Wash. 582, 212 Pac. 1059):

After the opinion (of department 2) was filed in this case, a petition for rehearing was presented, in which our attention was called for the first time to the case of 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. Upon the argument, when the case was heard in banc, it was suggested that the statement in the opinion, to the effect that the work of a stevedore is maritime in its nature and a matter within the admiralty jurisdiction of the United States, was too broad, because it did not seem to recognize the two classes of stevedores. It appears that there are stevedores whose work is upon the dock or wharf, and also those whose work is upon the boat. The latter are sometimes called "water stevedores." The question whether the stevedores who work upon the dock may be brought within the Workmen's Compensation Act (Laws 1911, p. 345) of this state is not involved in this case. The question here has to do solely with those who work upon the water, and which work is maritime in its nature, and the rights and liabilities connected therewith are matters which are within the admiralty jurisdiction of the United States. The department opinion must be understood as referring only to those stevedores who work upon the boat.

The case of State Industrial Commission v. Nordenholt Corp. supra, is not out of harmony with the views expressed in the department opinion. In that case the question was whether a longshoreman working upon a dock was within the Workmen's Compensation Act of the state of New York, and it was there held that he was under such act. That case is distinguishable from the one now before us, because there the stevedore was working upon the dock, while here the attempt is to bring within the Workmen's Compensation Act of this state those who are working upon the water, and whose work is therefore maritime in its nature. The stevedore who works upon the dock has a common-law right of action, which may be withdrawn and he be required to take under the workmen's compensation act. The stevedore who works upon the boat or upon the water does not have a commonlaw right of action, which may be withdrawn and he be required to take under a compensation act. In

the case above cited, it is said: "When an employee, working on board a vessel in navigable waters, sustains personal injuries there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of the employer must be determined under the maritime law; in the latter, no general maritime rule prescribes the liability, and the local law has always been applied. The liability of the employer for damages on account of injuries received on shipboard by an employee under a maritime contract is matter within the admiralty jurisdiction, but not so when the accident occurs on land."

The holding in the Department Opinion is adhered to, and the judgment is affirmed.

Affirmed by the Supreme Court of the United States, February 25, 1924, - U. S. —, 68 L. ed. Adv. Ops. p. 339, 44 Sup. Ct. Rep. 303.

This annotation is supplementary to the annotation in 25 A.L.R. 1029, on the above question.

Subsequent to decision in Jensen Case. (Supplementing annotation in 25 A.L.R. 1030.)

The decision in Danielsen v. Morse Dry Dock & Repair Co. (1921) 116 Misc. 69, 189 N. Y. Supp. 410, which is set out in the annotation in 25 A.L.R., at page 1041, to the effect that one employed by a dry dock company, who was injured on a ship in the dry dock, was engaged in maritime service, and that the New York compulsory Workmen's Compensation Act was inapplicable, was affirmed in (1922) 202 App. Div. 812, 195 N. Y. Supp. 91, which, in turn, was affirmed in (1923) 235 N. Y. 439, 139 N. E. 567.

In Campanile v. Morse Dry Dock.

& Repair Co. (1923) 205 App. Div. 480, 199 N. Y. Supp. 862, the court, citing State Industrial Commission v. Nordenholt Corp. (1922) 259 U. S. 263, 66 L. ed. 933, 25 A.L.R. 1013, 42 Sup. Ct. Rep. 473, 21 N. C. C. A. 862 stated that it is now definitely adjudicated that the locality test governs in determining whether the maritime law or the Workmen's Compensation Law controls, and that when it appears that an accident occurred on land, and not upon a ship, and the state has provided a scheme of compensation for the injury, exclusive of all other legal remedy against the employer, admiralty will not impose its jurisdiction, but will remit the party injured to such exclusive remedy.

And in the Campanile Case, where a vessel was in dry dock, afloat on

navigable waters, for repairs, and the plaintiff, who was employed as a ship repairer, was injured while working between the ship and the blocks which held it, his rights were held determinable in admiralty, and not under the New York Workmen's Compensation Law; the court following Danielsen v. Morse Dry Dock & Repair Co. (N. Y.) supra, in deciding that under the facts the locality test was met, so that the maritime law governed, and stating that it was conceded that the contract in the performance of which the plaintiff was engaged was maritime, but that this would be unavailing, alone, to exclude the state industrial board, the locality test also being required as an additional factor.

And in Alaska Packers' Asso. v. Industrial Acci. Commission (1923) Cal., 218 Pac. 561, it was held that the case must be determined under the maritime law, and not under the Workmen's Compensation Act, where a seaman and fisherman on a salmon-fishing vessel was injured while working as a rigger on the vessel on which he sailed, which at the time was lying alongside a wharf in navigable waters, being refitted for the next season's work.

44 Sup. Ct. Rep. 302, it was held that one who was injured while working as a stevedore on a vessel afloat on navigable water did not have a common law right of action, which might be withdrawn and he be permitted or required to take under the Compensation Act. The court said: "In this case, as in the Washington case [STATE V. W. C. DAWSON & Co. (reported herewith) ante, 512], reliance has been placed upon a line of decisions which hold that where a stevedore is working on the dock, which is but an extension of the land, and there receives his injury, he has a commonlaw right of action, which may, under certain circumstances, be withdrawn, and he be permitted or required to take under a workmen's compensation act. State Industrial Commission v. Nordenholt Corp. (U. S.) supra. That case clearly differentiates the contention made by respondent, and points out the line of demarcation between those cases which fall strictly within the maritime jurisdiction, and those which, because of their nature, are cognizable under state statutes. A stevedore who works upon a boat, or upon navigable waters, does not have a common-law right of action, which may be withdrawn and he be permitted or required to take under a compensation act. In the Nordenholt Corp. Case the distinction was pointed out, and the court said: 'When an employee, working on board a vessel in navigable waters, sustains personal injuries there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of the employer must be determined under the maritime law; in the latter, no general maritime rule prescribes the liability, and the local law has always been applied. The liability of the employer for damages on account of injuries received on shipboard by an employee under a maritime contract is matter within the admiralty jurisdiction; but not so when the accident occurs on land.' It follows, therefore, that the respond

And in Zurich General Acci. & Liability Ins. Co. v. Industrial Acci. Commission (1923) Cal., 218 Pac. 563, the liability of the employer was held to be governed by the maritime law, and not by the Workmen's Compensation Act, although the employer had elected to adopt the protection of that act, where one employed as a dredger, deck hand, and launch operator was drowned while attempting, upon an errand in connection with his employment, to proceed from the dredger to the shore in a launch afloat on navigable waters. The court here distinguished the Nordenholt Corp. Case, which is set out in the earlier annotation at page 1036, and several other cases, on the ground that in those cases the facts were different, the injuries having occurred on land. And in James Rolph Co. v. Industrial Acci. Commission (1923) Cal. 220 Pac. 669, affirmed in (1924)

68 L. ed. —, Adv. Ops. p. 339,