(148 N.E.)

hauling fuel for dredges, pile drivers, and | ployés of petitioner engaged in the abovederricks, in diving and blasting operations, mentioned classifications, and to exercise juin hauling away and dumping dredged ma- risdiction over claims arising out of said emterial in the work above set forth. ployments.

so considered, and that both parties desire to seek relief under the Workmen's Compensation Act.

Under these contracts of employment do the rights and liabilities have a direct relation to navigation? And would the application of the local law (Compensation Act) materially affect any of the rules of the sea and thereby the uniformity which is essential to maritime law?

herein contracts with its employés? It is for dredging for foundations for docks, cribs, and bridges, dredging trenches for installing pipes of brick, concrete, or metal, for water, sewer, or gas; for making, widening, and deepening channels; making fills behind docks, breakwaters, jetties, and similar work; employed on floating pile driver, in the work of driving piles for foundations, breakwaters, jetties, docks, dry docks, cribs, wharves, water intake cribs; hauling stone, piles, and other materials; hauling fuel, for dredges, pile drivers, and derricks; in diving and blasting operations; in hauling away and dumping dredged material in the work above set forth; lightering, loading, or carrying

If the answer to the question simply involved whether or not the injuries were received while the employé was working afloat on navigable waters, the solution would be easy, but, in the light of the definition of the word "maritime," as defined by the courts, it must be something more than simply an in-materials to and from dredges, pile drivers, jury taking place on navigable waters.

sea.

ployed in any of the kinds of work above enumerated; stevedores while employed on dredges, floating pile drivers, barges, deck Scows, dump scows, and floating derricks in loading or unloading materials, while such craft is engaged in the work above enumeratated.

scows, engaged in the work above set forth; in preparatory work on dredges, pile drivers, "It is not easy to get an exact definition of barges, derrick scows, lighter scows, and the term 'maritime contract.' It is far easier dump scows; in the preparation or disposito say what is not a maritime contract. "The tion of materials, building or shaping of true criterion,' says Mr. Justice Bradley, 'is the cribs, caissons, sections of pipe, or piling, or nature and subject-matter of the contract, as concrete blocks for use on work of the char where it has reference to maritime services or maritime transactions.' New England Marine acter hereinbefore enumerated; repair men Ins. Co. v. Dunham, 78 U. S. (11 Wall.) 1, 20 while afloat in the raising, repairing, or L. Ed. 90. Browne, in his work on Civil and caulking of dredges, pile drivers, barges, derAdmiralty Law (volume. 2, p. 82), asks the rick scows, and dump scows and similar question, 'What contracts should be cognizable craft; tug men while tug is engaged in towin admiralty?' and answers it, 'All contracts ing or standing by dredges, floating pile drivwhich relate purely to maritime affairs.' Mari-ers, floating derricks, barges, and scows emtime contracts are such as relate to commerce and navigation. The Orpheus (U. S.) 30 Fed. Cas. 859. To be a maritime contract it is not enough that the subject-matter of it, the consideration or the service, is to be done on the The contract must be in its nature maritime. It must relate to maritime affairs, and have a connection with the navigation of the ship, with her equipment or preservation, or ́ A careful examination of the range of with maintenance or preservation of the crew work which the employés of the plaintiff who are necessary to the navigation and safety performed would seem to disclose nothing of the ship. that had a direct bearing upon the maritime service, navigation, or maritime commerce, either interstate or foreign. In a remote degree some of the work performed by the plaintiff may be the service in navigation and in commerce by vessels engaged in such service following a channel dredged by the plaintiff or tying up to a wharf which may have been built by plaintiff, or taking refuge behind a breakwater, or piles driven by plaintiff's employés, but it is difficult to see how the laying of gas or water pipes under the bed of a river or building a crib for water supply for a city affects maritime law or navigation.

"A maritime contract must concern transportation by sea; it must relate to navigation and to maritime employment; it must be one of navigation and commerce on navigable waters. So it is held that a contract under which coal is furnished to a steam dredge engaged in sucking up material from the bottom of a lake and discharging it through pipes upon the distant . shore, not for the purpose of improving navigation, but merely to make a fill to be used for railroad purposes, is not a maritime contract under which a maritime lien may arise. In re Hydraulic Steam Dredge No. 1, 80 Fed. 545, 556, 25 C. C. A. 628.

"Not every contract having reference to a ship is within the admiralty jurisdiction, but only such as relate to maritime employment, such as pertain to the navigation of a ship or assist the vessel in the discharge of a maritime obligation. It is not enough that the service is to be done upon the sea or with respect to the ship." Bowers Hydraulic Dredging Co. v. Federal Contracting Co. (D. C.) 148 F. 290, See also Corpus Juris, vol. 1, p. 1266.

With these definitions in mind, what is the character of work for which the plaintiff

It would therefore seem that the principles announced in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, would apply rather than the rule of Southern Pacific Co. V. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L Ed. 1086, L. R. A. 1918C, 451, Ann. Cas 1917E, 900, a case in which maritime law was directly involved and an application of the Workmen's Compensation of New York was denied. The court say:

(148 N.E.)

"The work of a stevedore in which the de- [dustrial Accident Comm. of Cal. v. James ceased 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."

Rolph Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed, 646; also Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 45 S. Ct. 157, 69 L. Ed. 372, decided January 5, 1925. In these last three cases the rights and liabilities of the parties arose out of and depended upon After the decision in the Jensen Case, Con- general maritime law, and could not be engress by amendment of the federal Judiciary larged or impaired by statute. To the same Act undertook to permit application of work- effect is the holding in Alaska Steamship Co. men's compensation acts of the several states v. McHugh, where the Supreme Court deterto injuries within admiralty jurisdiction. mined that the so-called First Employers' LiThis provision was declared beyond the pow-ability (federal) Act (U. S. Comp. St. §§ 8657er of Congress in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 163, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145.

In Grant Smith-Porter Ship Co. v. Rohde, supra, there was a proceeding in admiralty to recover damages from a ship builder for Injuries which a carpenter received while working on an unfinished vessel moored in Willamette river at Portland, Ore. The Workmen's Compensation Act of Oregon was permitted to apply. The court said:

"And, as both parties had accepted and proceeded under the statute by making payments to the Industrial Accident Fund, it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. * Under such circumstances 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. * Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.”

*

8665) did not apply to purely maritime torts, decided April 13, 1925, 45 Sup. Ct. 396, 69 L.

Ed.

Among the state courts recognizing the doctrine here held may be cited Berry v. Donovan & Sons, 120 Me. 457, 115 A. 250, 25 A. L. R. 1021; also Wooley v. E. M. Wichert Co., 275 Pa. 167, 118 A. 765. In this case the plaintiff's husband was employed as a foreman on a derrick boat, which was anchored in a harbor on a navigable river, and was used for excavating purposes, and it was held that the employment was nonmaritime. In Millers' Indemnity Underwriters v. Boudreaux (Tex. Civ. App.) 245 S. W. 1025, the cause of action arose out of the death of a diver in a navigable stream working off a fioating barge. It was held that it was not shown by the evidence to be maritime in nature as regarded the right to compensation under the Workmen's Compensation Act. This case distinctly recognized the Grant Smith-Porter Ship Company Case, supra, and the Nordenholt Corp. Case, supra, and said that, had those cases been before the court when Home Life & Accident Co. v. Wade (Tex. Civ. App.) 236 S. W. 778, was decided, the conclusion would have been different, and the rule announced in Grant Smith-Porter Ship Co. and Nordenholt Corp. Cases adoptA large number of cases may be cited ed. To the same effect are the cases of Emwhich adopt the principle announced in ployers' Liability Assurance Corp., Ltd., v. Southern Pacific Co. v. Jensen, supra, but all Industrial Accident Comm., 177 Cal. 771, 171 that class of cases is founded upon some con- P. 935; Los Angeles Shipbuilding & Drydock flict of the law of the sea or maritime law Co. v. Industrial Accident Comm., 57 Cal. with the local statute. These cases often re- App. 352, 207 P. 416; Gillard's Case, 244 late to stevedores or longshoremen unloading Mass. 47, 138 N. E. 384; Bockhop v. Phoenix the cargo of vessels or artisans working up-Transit Co., 97 N. J. Law, 514, 117 A. 624; on a vessel engaged in interstate or foreign | Wooley v. E. M. Wichert Co., 275 Pa. 167, 118 trade; in fact, all of them have some direct A. 765; Lumbermen's Reciprocal Ass'n v. Adbearing upon maritime law. On the other hand, the courts distinctly recognize a group of cases, of which Grant Smith-Porter Ship Co. v. Rohde, supra, is the leading case, all founded upon the principle that their provisions were found not to be in conflict with any essential feature of the general maritime law. Industrial Commission of N. Y. v. Nordenholt Corp., 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013, is of this class; also Western Fuel Co. v. Garcia, Adm'r, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210. The difference is distinctly noted in Washington v. W. C. Dawson & Co. and In

cock (Tex. Civ. App.) 244 S. W. 645; Riedel v. Mallory Steamship Co., 196 App. Div. 794, 188 N. Y. S. 649; Lawton v. Diamond Coal & Coke Co., 272 Pa. 74, 115 A. 886; Travelers' Ins. Co. v. Bacon, 30 Ga. App. 728, 119 S. E. 458; Zahler v. Department of Labor and Industries, 125 Wash. 410, 217 P. 55.

Other states have reached conclusions denying the application of the workmen's compensation statutes following the rule of the Jensen Case, but an examination of those cases will disclose that the contract of employment and services rendered were maritime in character. A good case illustrating

are disposed to classify the service therein averred as nonmaritime in character, even though rendered "on floating vessels in navi. gable waters."

The principles applicable to this case are thoroughly discussed in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, 25 A. L. R. 1029, 31 A. L. R. 518.

this viewpoint and citing many authorities | language and allegations of the petition we is O'Hara's Case and Brandies' Case, decided by the Supreme Judicial Court of Massachusetts, 248 Mass. 31, 142 N. E. 844. This is a well-considered case, and distinguished Gillard's Case, 244 Mass. 47, 138 N. E. 384. Other cases recognizing the maritime principle of the Jensen Case are Doey v. Howland, 224 N. Y. 30, 120 N. E. 53, followed in Anderson v. Johnson Lighterage Co., 224 N. Y. 589, 120 N. E. 55; Newham v. Chile Exploration Co., 232 N. Y. 37, 133 N. E. 120, 25 A. L. R. 1018; Thornton v. Grand Trunk Milwaukee Car Ferry Co., 202 Mich. 609, 168 N. W. 410; Neff v. Industrial Comm., 166 Wis. 126, 164 N. W. 845.

From an examination of the many authori ties we believe the rule to be that, unless some interference with maritime law and navigation or maritime trade is shown, recovery under state compensation laws will be allowed, where the parties have contractMany other cases could be cited illustrated with reference thereto and desire to reging this viewpoint, but, as noted above, all ulate their rights thereby. of them rest upon the maritime character of the work in which the injured was engaged and direct relation to navigation.

The application of this character of cases must be denied in the present instance, for the reason it does not appear by the allegations of the petition that a single one of plaintiff's employés will ever come in contact with a vessel engaged in commerce, foreign or domestic, intrastate or interstate, or with navigation in its generally accepted meaning.

It is of course difficult to lay down a hard and fast rule which is to apply in all cases where the employment is close to the line as to being maritime or otherwise, and it is possible that plaintiff may some time have a case involving maritime service, but from the

We therefore reach the conclusion that under the averments of this petition the character of the work stated would seem to show no invasion of maritime law, and the fact that the parties have contracted with reference to the state law and desire to come within the state Compensation Act, the nature of their employment showing no invasion of maritime law, we do not feel justified in denying the relief the petition seeks. Entertaining these views, the demurrer is overruled.

Demurrer overruled.

MARSHALL, C. J., and JONES, MATTHI• AS, ALLEN, KINKADE, and ROBINSON, JJ., concur.

(148 N.E.)

1. Municipal corporations 703 (1)-Munici-supervise and regulate motor transportation pality may control, direct, and manage streets

JONES, MATTHIAS, DAY, and ROBINSON, JJ., concur.

MARSHALL, C. J., and ALLEN and KINKADE, JJ., concur in the judgment, but not in the reasons stated in the per curiam opinion.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-37