courts, and provide that the action for damages, which the statute clearly contemplated, shall not be available.

I therefore favor an affirmance.

5. BURDEN OF PROOF THAT ACCIDENT HAS OCCURRED IN INTERSTATE COMMERCE

The employer must prove that the accident has arisen out of interstate commerce. The Commission has awarded compensa

tion because such proof was not forthcoming in Carney v. Lehigh Valley R. R. Co., S. D. R., vol. 17, p. 647, Bul., vol. 4, p. 25, Oct. 15, 1918.

Q. ADMIRALTY OR MARITIME JURISDICTION

The United States Supreme Court decisions in Jensen v. Southern Pacific Co. and Walker v. Clyde Steamship Co. held that the laws of the United States, as they existed at the time of the accidents to Jensen and Walker, especially the United States Judiciary Code, §§ 24 and 256, did not admit of the application of state workmen's compensation remedies to cases of accident occurring upon waters subject to federal jurisdiction. Applying these United States Supreme Court decisions, the New York court reversed awards in certain accident cases occurring upon New York waters, notably in Doey v. Howland Co., Anderson v. Johnson Lighterage Co., and Keator v. Rock Plaster Mfg. Co. Application for a writ of certiorari in these cases was denied by the United States Supreme Court, October 29, 1918. Meantime, to make state compensation remedies applicable to maritime accidents, Congress amended United States Judiciary Code, §§ 24 and 256, by a law which took effect October 6, 1917. The New York legislature thereupon re-enacted Workmen's Compensation Law, § 2, grs. 8 and 10, relative to maritime accidents, by a law which took effect April 17, 1918. Such in outline is the development of the question till July, 1918. Full history of such development, including the texts of the court decisions and the amendments to the laws, has been given in Special Bulletin No. 87, Part 1, pages 320-379. Development subsequent to July, 1918, is presented here.

1. ACCIDENTS OCCURRING PRIOR TO OCTOBER 6, 1917 In addition to the reversals noticed in Bulletin 87, Part 1, the Appellate Division, upon authority of the decisions of the Court of Appeals in the Doey, Anderson and Keator cases, has later reversed awards in the following nine cases, unanimously and without opinion: Brown v. Brevoort, 186 App. Div. 929, Nov. 18, 1918; McCracken v. Eastern Gravel Corp., S. D. R., vol. 14, p. 659, Bul., vol. 3, p. 55, Oct. 11, 1917; 186 App. Div. 932, Nov. 22, 1918; McLaughlin v. Boyer & Sons, 186 App. Div. 929, Nov. 18, 1918; McPartland v. International Grain Elevating Co., 186 App. Div. 929, Nov. 18, 1918; Moran v. International Elevating Co., S. D. R., vol. 14, p. 623, Bul., vol. 5,

p. 14, Sept. 11, 1917; 186 App. Div. 929, Nov. 18, 1918; Pauline v. Hogan & Sons, Death Case No. 25317, Dec. 21 1917; 185 App. Div. 900, July 2, 1918; Santona v. McQuade Stevedoring Co., Case No. 33919, Oct. 23, 1917; 185 App. Div. 900, July 2, 1918; Touhey v. International Elevating Co., 186 App. Div. 930, Nov. 18, 1918; and Vandrey v. Tracy, 186 App. Div. 930, Nov. 18, 1918.

The Appellate Division also reversed its own previous affirmation and vacated the award in Van Wie v. Wright & Cobb Lighterage Co. (187 App. Div. 911, Jan. 8, 1919), the facts of which have been outlined in Bulletin No. 87, Part 1, pages 208 and 209.

The awards in a number of unappealed cases of maritime accidents occurring prior to October 6, 1917, have been rescinded by the Commission. An illustration is Baxter v. Waller Lighterage Co., S. D. R., vol. 15, p. 607, Feb. 25, 1918. The carrier had stopped payments in this case October 2, 1917; the Commission rescinded its award November 17, 1918. Compare also Oberle v. Atlantic Transport Line, S. D. R., vol. 15, p. 581, Jan. 14, 1918.

2. RESORT TO COMMON LAW OR ADMIRALTY REMEDY UPON DISCONTINUANCE OF COMPENSATION PAYMENTS

Breaking of a bolt caused some ship's tackle to fall upon and mortally injure a stevedore's employee. An insurance carrier paid compensation to his widow under an award but discontinued payments when the Supreme Court of the United States held such awards to be in conflict with admiralty law. Thereupon the widow brought and won a suit for damages against both the stevedore and the steamship company. The defendants argued that her previous election of the compensation remedy had estopped her from maintaining this action at common law. In refusing to set aside the verdict, the court said:

LIVERANI V. CLARK & SON, 176 N. Y. Supp. 726, Mar. 31, 1919. in part.* As to the second contention whilst it is true that the plaintiff as well as the insurance carrier both proceeded upon the assumption that the remedy provided by the Workmen's Compensation Law was available, and that pursuant thereto an award and part payment had actually been made, the insurance carrier ceased to make further pyments upon the rendition of the decisions in the Jensen and Walker Cases, supra. There was no estoppel by

*Full text of the opinion appears below, page 257.

the plaintiff's election to so proceed, when she thought or was advised that that was the only relief obtainable, as the New York State Workmen's Compensation Commission was without jurisdiction to make such an award and either party was at liberty to refuse to act thereunder at any time. See Matter of Doey, 224 N. Y. 30, 120 N. E. 53; Sullivan v. Hudson Nav. Co., supra.

"The motion is denied.

3. ACCIDENTS OCCURRING BETWEEN OCTOBER 6, 1917, AND APRIL 17, 1918

State compensation remedies have covered accidents in admiralty occurring since October 6, 1917, the date upon which the congressional act became effective. Workmen's Compensation Law, § 2, grs. 8 and 10, were fully revived by the Federal law. Re-enactment of them by the New York Law of April 17, 1918, was superfluous. The Appellate Division has so held, unanimously and with opinion, in the case of a maritime accident of date February 26, 1918, as follows:

CIMMINO V. CLARK & SON, 184 App. Div. 745, Nov. 13, 1918.

LYON, J.: The question at issue upon this appeal is whether the claimant being engaged in the performance of a maritime contract at the time he sustained his injuries should have been denied compensation.

On February 26, 1918, the claimant, who was a stevedore at work on board a ship lying at Twenty-ninth street, Brooklyn, N. Y., slipped on the deck, fracturing the distal end of the radius of his right wrist. The work of loading and unloading a ship is as much maritime in its nature as the work of navigating the vessel. (Atlantic Transport Company V. Imbrovek, 234 U. S. 52.) Following the decision of Southern Pacific Co. v. Jensen (244 U. S. 205) Congress amended section 24 and section 256 of the Judicial Code on October 6, 1917, chapter 97, section 2, as follows: "Third. Of all 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, and to claimants the rights and remedies under the workmen's compensation law of any State."* Following this action of Congress, the Legislature of the State of New York on April 17, 1918, by chapter 249, re-enacted groups 8 and 10 of section 2 of chapter 41 of the Laws of 1914 as amended by chapter 622 of the Laws of 1916 and 1917, which specified "Longshore work, including the loading or unloading of cargoes as one of the hazardous Occupations.

We do not think it was necessary to reenact the provisions of the New York statute to make them effective as of October 6, 1917. (Veasey v. Peters, 77 So. Rep. 948.) As was said in the New Jersey Court of Errors and Appeals (Allison v. Corker, 67 N. J. L. 596): "But I am prepared to

'See 36 U. S. Stat. at Large, 1091, § 24, subd. 3, as amd. by 40 id. 395, chap. 97, § 1; 36 id. 1160, 1161, § 256, subd. 3, as amd. by 40 id. 395, chap. 97, § 2. [REP.

*

go further, and hold that an unconstitutional statute is nevertheless a statute - that is, a legislative act. Such a statute is commonly spoken of as void. I should prefer to call it unenforceable, because in conflict with a paramount law An unconstitutional statute is not merely blank paper. The solemn act of the Legislature is a fact to be reckoned with. Nowhere has power been vested to expunge it or remove it from its proper place among the statutes." The New York statute came into force the moment the amendatory act of Congress was passed. "While Congress in the exercise of its power to regulate commerce between the States and foreign nations, can legislate upon that subject as well in ports and harbors as in the high seas, by so doing it does not repeal, but suspends State law upon the subject, and when the act producing this result is repealed or so modified as to permit the operation of the state law, it becomes again valid and in force.” (Henderson v. Spofford, 59 N. Y. 131, citing Sturgis v. Spofford, 45 id. 446. See, also, Anderson v. Pacific Coast S. S. Co., 225 U. S. 197.)

As to the claim that no written notice was given within ten days as required by the statute, the point was not raised before the Commission. It is, therefore, presumed to have been given. (§ 21.)

The award should be affirmed. Award unanimously affirmed.

The Appellate Division has also affirmed the awards in the maritime accidents of Driscoll v. Gillen & Son Lighterage, Bul., vol. 3, p. 264, July 31, 1918; 187 App. Div. 908, Jan. 8, 1919; and Massiella v. Clark & Son, Case No. 64802, Mar. 28, 1918; 186 App. Div. 923, Nov. 13, 1918. The Court of Appeals has affirmed the order in the Driscoll case: 226 N. Y. Rep. 568, Mar. 11, 1919. The accident in the Massiella case occurred December 20, 1917, and the accident in the Driscoll case, December 31, 1917.

4. CONSTITUTIONALITY OF THE CONGRESSIONAL ACT OF
OCTOBER 6, 1917

The Commission awarded compensation in the maritime cases of Stewart v. Knickerbocker Ice Co., S. D. R., vol. 17, p. 634, Sept. 18, 1918; Tardi v. Atlantic Coast Shipping Co., S. D. R., vol. 17, p. 642, Oct. 3, 1918; and McAllister v. Newtown Creek Towing Co., Death Case No. 300399, Apr. 4, 1919. The accidents in these cases occurred subsequent to April 17, 1918, upon which date the New York law became effective. The McAllister case is pending in Appellate Division, November, 1919. In the Stewart case the employer and carrier took appeal upon ground that the congressional act extending concurrent admiralty jurisdiction to the States was unconstitutional. The Appellate Division affirmed the award to Stewart's widow unanimously and