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PITNEY, J., dissenting.

244 U. S.

state law. It seems to me a curious inconsistency to hold, at the same time, that the rules of the maritime law exclude the operation of a state statute without action by Congress, although the Constitution contains no express grant of authority to establish rules of maritime law, and the authority must be implied from the mere constitutional grant of judicial power over the subject matter; and most remarkable that this result is reached in the face of the fact that the judicial power in cases of admiralty jurisdiction has been put into effect by Congress subject to an express reservation of the previous concurrent jurisdiction of the courts of law over actions of this character. This, besides ignoring the reservation, gives a greater potency to an implied power than to a power expressly conferred.

The effect of the present decision cannot logically be confined to cases that arise in interstate or foreign commerce. It seems to be thought that the admiralty jurisdiction of the United States has limits coextensive with the authority of Congress to regulate commerce. But this is not true. The civil jurisdiction in admiralty in cases ex contractu is dependent upon the subject matter; in cases ex delicto it is dependent upon locality. In cases of the latter class, if the cause of action arise upon navigable waters of the United States, even though it be upon a vessel engaged in commerce wholly intrastate, or upon one not engaged in commerce at all, or (probably) not upon any vessel, the maritime courts have jurisdiction. Propeller Genessee Chief v. Fitzhugh, 12 How. 443, 452; The Propeller Commerce, 1 Black, 574,578, 579; The Belfast, 7 Wall. 624, 636, 638, 640; Ex parte Boyer, 109 U. S. 629, 632; In re Garnett, 141 U. S. 1, 15, 17. It results that if the constitutional grant of judicial power to the United States in cases of admiralty and maritime jurisdiction is held by inference to make the rules of decision that prevail in the courts of admiralty binding proprio vigore upon

244 U. S.

PITNEY, J., dissenting.

state courts exercising a concurrent jurisdiction in cases of maritime origin, the effect will be to deprive the several States of their police power over navigable waters lying wholly within their respective limits, and of their authority to regulate their intrastate commerce so far as it is carried upon navigable waters.

The following additional consideration is entitled to great weight: The same Judiciary Act which in its 9th section conferred upon the district courts of the United States original cognizance of civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, in its 25th section allowed a writ of error from this court to review the final judgment or decree of a state court of last resort resulting from a decision overruling any special claim of right, privilege, or exemption based upon the construction of any clause of the Constitution or statutes of the United States. By later legislation the review was broadened (Act of February 5, 1867, c. 28, § 2, 14 Stat. 385, 386; $ 709, Rev. Stats.; $ 237, Jud. Code), and by recent legislation the writ of certiorari has been substituted for the writ of error in many cases (Act of September 6, 1916, c. 448, 39 Stat. 726). But, at all times, the right to review in this court the decisions of the state courts upon questions of federal law has existed, so that if by the true construction of Art. III, § 2, of the Constitution, or of § 9 of the Judiciary Act of 1789, it had been the right of parties suing or sued in state courts upon causes of action of a maritime nature to insist that their cases should be determined according to the rules of decision found in the law maritime, this right or immunity might have been asserted as a federal right, and its denial made the ground of a review of the resulting judgment, under a writ of error (or, now, a writ of certiorari), from this court to the state court of last resort. Yet, until the present case, and others submitted

PITNEY, J., dissenting.

244 U.S.

at the same time, the reported decisions of this court show not a trace of any such question raised. I can conceive of no stronger evidence to prove that from the foundation of the government until the present time it has been the opinion of the Bar and of the Judiciary, in the state courts as well as in the courts of the United States, that it was not the right of parties suing or sued in state courts of law or equity upon causes of action arising out of maritime affairs, to have them decided according to the principles that would have controlled the decision had the suits been brought in the admiralty courts.

There is no doubt that, throughout the entire life of the nation under the Constitution, state courts not only have exercised concurrent jurisdiction with the courts of admiralty in actions ex contractu arising out of maritime transactions, and in actions ex delicto arising upon the navigable waters, but that in exercising such jurisdiction they have, without challenge until now, adopted as rules of decision their local laws and statutes, recognizing no obligation of a federal nature to apply the law maritime. State courts of last resort, in several recent cases, have had occasion to consider the precise contention now made by plaintiff in error, and upon full consideration have rejected it. Lindstrom v. Mutual Steamship Co., 132 Minnesota, 328; North Pacific S. S. Co. v. Industrial Accident Commission (Cal.), 163 Pac. Rep. 199; Kennerson v. Thames Towboat Co., 89 Connecticut, 367, 373. See also Matter of Walker v. Clyde Steamship Co., 215 N. Y. 529, 531; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514 (this case). I have found no case to the contrary except a decision by the United States District Court for the Northern District of Ohio in Schuede v. Zenith S. S. Co., 216 Fed. Rep. 566, now under consideration by this court. The reasoning is unsatisfactory, and it was repudiated in Keithley v. North Pacific S. S. Co., 232 Fed. Rep. 255, 259.

I may remark, in closing, that there is no confiict be

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tween the New York Workmen's Compensation Act and the acts of Congress for limiting the liability of shipowners (Rev. Stats., 88 4283–5; Act of June 26, 1884, c. 121, $ 18, 23 Stat. 53, 57). So long as the aggregate liabilities of the owner, including that under the New York law, do not amount to as much as the interest of the owner in the vessel and freight pending, the act of Congress does not come into play. Where it does apply, it reduces all liabilities proportionally, under whatever law arising; the liability under the New York law along with the others. Butler v. Boston & Savannah Steamship Co., 130 U. S. 527, 552, 558; The Hamilton, 207 U. S. 398, 406; Richardson v. Harmon, 222 U. S. 96, 104, 105.

MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in the dissent, both upon the grounds stated by MR. JUSTICE HOLMES and upon those stated by MR. JUSTICE PITNEY,

CLYDE STEAMSHIP COMPANY v. WALKER.

ERROR TO THE SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT, OF THE STATE OF NEW YORK.

No. 281. Argued February 28, 1916; restored to docket for reargument

November 13, 1916; reargued January 31, February 1, 1917.-Decided May 21, 1917.

Upon the authority of Southern Pacific Co. v. Jensen, ante, 205,

Held, that the New York Workmen's Compensation Act is unconstitutional as applied to the case of a longshoreman employed by a steamship company engaged in interstate transportation by sea, who was injured while on board a vessel unloading her at her wharf

in navigable waters in New York. 215 N. Y. 529, reversed.

Opinion of the Court.

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The case is stated in the opinion.

Mr. Norman B. Beecher, with whom Mr. Ray Rood Allen was on the briefs, for plaintiff in error.

Mr. E. Clarence Aiken, with whom Mr. Egburt E. Woodbury, Attorney General of the State of New York, and Mr. Harold J. Hinman were on the brief, for defendant in error.

MR. JUSTICE McREYNOLDS delivered the opinion of the court.

Purporting to proceed under the Workmen's Compensation Law of New York (c. 67, Consolidated Laws), the State Commission, on September 3, 1914, made an award to defendant in error, Walker.

It found:

1. William Alfred Walker, a claimant, is a longshoreman, residing at 151 West 133rd Street, New York City. Prior to July 1, 1914, he was employed in the City of New York by the Clyde Steamship Company for longshore work. He was injured on July 1, 1914, while in the employ of the Clyde Steamship Company as a longshoreman.

“2. The Clyde Steamship Company is a corporation organized and existing under the Laws of Maine, where it has its principal office. It also has an office at Pier 36 North River.

“3. During the discharge of the Cherokee and at the time of the accident, the claimant was on board the steamship Cherokee, owned and operated by the Clyde Steamship Company. During the year prior to the accident, Walker had been employed from time to time by the Clyde Steamship Company and could have been assigned to work upon the pier. The Cherokee was, at the time of the accident, moored to and alongside Pier 37, North

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