was decided by the Commission that the fact that the contract was made in New York State did not entitle the dependents of the injured workman to compensation. In the case of Gardner vs. Horsehead's Construction Co., 171 App. Div. 66; 156 N. Y. Supp. 899, decided by the Appellate Division in January, 1916; the accident happened at the employer's plant in Pennsylvania. The injured workman had not been employed in the State of New York since 1912. The Court reversing the award, decided that the making of the contract in this state did not, of itself, entitle the claimant to compensation where the entire work was to be performed in the state of Pennsylvania. In another case, Matter of Pritz vs. Baumont (reversed 154 N. Y. Supp. 1140, without opinion), both the claimant and the employer resided in New York State. The claimant had been working in this State but had left his employment and was subsequently engaged in the construction of a building. The employer had given no security for the payment of compensation in the State of New York but had insured under the law of the State of New Jersey as to the particular job in question. The award made by the Commission was reversed.

Both the Gardner and the Pritz cases were decided before the Court of Appeals had rendered its decision in the Matter of Post. They seem to be distinguishable, however, and it seems to be sound reasoning that as to jobs which are to be completely performed in another state, the employer is subject to the law of the state where the accident happens, at least where the employment is for the particular work alone. The plant for the purpose of such cases is located in a foreign state, which has a right to regulate its own employments. As to such cases, employers in the State of New York would be subject to liability under the laws of the state where the accident happens.

Confusion will doubtless arise where employees of another state are injured while temporarily at work in New York. This confusion can be avoided by applying the law of the state where the injured workman resides

and was employed. In Massachusetts it has been held that the compensation law has no extra territorial effect1 and an employee coming from Massachusetts injured in the course of his employment in this state would be entitled to compensation or damages, as the case may be, under our laws. On the other hand, it has been decided in Connecticut' and in New Jersey3 that the compensation laws in each of those states apply where the injury happens outside the state. It would be the duty of the Commission and of the courts to recognize the law of Connecticut and New Jersey and the only recourse of the Connecticut or New Jersey employee, although injured in this state, would be the compensation provided by his own state.

Even before any valid compensation law was in force in the State of New York, the Courts of this state gave recognition to compensation laws of other states and countries upon the legal principle that the law of the place where the contract of employment was made should govern, unless the foreign law is contrary to the policy and the fundamental law of this state. This was decided in the case of Schwitzer vs. Hamburg-American Line, 149 App. Div. 900; s. c. 78 Misc. 448, and to the same effect, see also Albanese vs. Stewart, 78 Misc. Rep. (N. Y.) 581, and Pensabene vs. Auditor Co., 78 Misc. 538.

§ 20. Admiralty jurisdiction. New York City is the greatest seaport in America and more laborers are employed in New York State in connection with the operation of vessels and kindred work than in any other state in the Union. The Legislature has established three groups of employees engaged in this class of work, to which the compensation law has been made applicable. They are Group 8, relating to the operation of vessels; Group 9, relating to shipbuilding, including construction and repair; and Group 10, longshore work, including the loading or unloading of cargoes.

Group 8 excludes from the act the operation of vessels

1 Gould's case, 215 Mass. 480.

2 Kennerson vs. Thames Towboat

Co., 94 Atl. Rep. Conn. 372.

Deeny vs. Wright & Cobb Light

erage Co., 36 N. J. Law J. 121. Rounsaville vs. Central R. R., 94 Atl. Rep. 392.

of other states or countries engaged in interstate commerce and the repair of such vessels when the work is performed by the owner. Compensation was denied by the Commission in File No. 259, Coons vs. Kennedy Towing Line and in Claim No. 47205, Underwood vs. International Elevating Co., two cases in which residents of New York met their deaths while New Jersey vessels were being operated in the New York Harbor. New York State vessels are made subject to the act whether within or without the State, following the wellestablished doctrine that a vessel remains a part of the State from whence it hails no matter where it may be located' and the compensation law has been held to apply where the accident happened upon a New York vessel lying in one of the harbors of the State of New Jersey.2

Group 9 covers shipbuilding and repairing and includes the repair of foreign vessels where the work is carried on by New York concerns. An employee engaged in the repair of a vessel of a foreign state or country is within the compensation law if employed by a New York State firm but not when employed by the owner or charterer of the vessel.

Group 10 covers longshore work, including loading and unloading of ships and all manner of handling cargoes. By placing this employment in a separate group it is distinguished from the operation of vessels so that employees performing longshore work in relation to foreign vessels are brought within the act no matter by whom employed.3

In creating these three groups the Legislature has entered a field covered to a large extent by the Maritime Law and has brought the act in conflict with the jurisdiction of the Courts of Admiralty, as will be more fully explained in the next section.

21. Admiralty jurisdiction-Optional remedy of employees. The rule is well established under Federal

1McDonald vs. Mallory, 77 N. Y.

546.

Manning vs. International Marine Co., 212 Fed. Rep. 933.

2 Matter of Edwardson vs. Jarvis

Lighterage Co., 168 App. Div. 368; 153 N. Y. Supp. 391.

3 Matter of Jensen vs. Southern Pacific Co., 215 N. Y. 514.

decisions that when an injury takes place upon navigable waters of the United States, it is within the Admiralty jurisdiction of the Federal Courts.' In the State of Washington it has been decided that the compensation act has no application to employees who may bring a proceeding in Admiralty." In New York, however, it was held by the Court of Appeals in the Matter of Walker vs. Clyde Steamship Co., 215 N. Y. 529, that employers of this class are subjected to two remedies, one under the compensation act and the other through a suit in Admiralty. In this decision, it was pointed out that prior to the enactment of the compensation law a suitor might pursue his remedy in Admiralty or might resort to his common law remedy by suit in either State or Federal Court. It was recognized that the State could not interfere with the Admiralty jurisdiction, citing as authorities, The Lottawanna, 21 Wall 558, and Workman vs. New York City, 179 U. S. 552, and the effect of the decision is to give employees who may be injured on a vessel the option of either taking compensation or instituting a proceeding in Admiralty to recover damages. The nature of the work is immaterial. Whether the employee is injured while engaged in the operation of a New York vessel under Group 8, in the construction or repair of a vessel under Group 9, or in longshore work under Group 10, if the accident happens on a vessel while lying in navigable waters of the United States, whether under navigation or moored to a dock, the injured has an option of remedies. This rule effects. the whole shipping industry and all transportation by water in the New York Harbor, in the Great Lakes and upon the Hudson River and follows New York vessels upon the high seas or in foreign waters.

An injury which happens on land is not subject to Admiralty jurisdiction and a longshoreman, while working on shore is entirely within the compensation act, but when he steps on the vessel in the discharge of the same work he has an option of remedies. This subject

1 Atlantic Transport Co. vs. Imbrovek, 234 U. S. 52.

is

2 State Ex Reel Jarvis vs. Daggett, 151 Pac. Rep. 648.

now before the United States Supreme Court in several cases. If the decision in the State of Washington is followed the compensation law will have no application where the accident happens on a vessel, but if the decision of the New York Court of Appeals is followed, the employee injured on a vessel will retain an option as to his remedies.

§ 22. The Federal Employers' Liability Act.Railroad employees. A law was passed by Congress, April 22, 1908, which is known as the Federal Employers' Liability Act. It relates to common carriers by railroads engaged in interstate commerce and makes such common carriers liable for injuries due to negligence and to defects in railroad ways, machinery, appliances, etc. Having this Federal law in mind, the Legislature inserted Section 114 in the compensation law. This section provides:

"The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce,'

and there follows a provision under which employers and employees engaged in interstate commerce may elect to come within the Act.

It is apparent that this section is awkwardly phrased and this was recognized by the Court of Appeals in Matter of Jensen vs. Southern Pacific Co. (Sec. 1, infra). In the Jensen case, it was held that the Legislature did not intend to confine the act to intrastate work alone, but also to interstate work, except as to injuries for which "a rule of liability or method of compensation has been or shall be established by the Congress of the United States." It was held that the words "may be" should be construed in the same sense as "shall be." In the Jensen case the Court had the section under consider