Extra-territorial effect of compensation statutes

and Germany that they shall apply to seamen on vessels of those countries is not very persuasive on the point as to whether or not such laws have in themselves any extraterritorial effect. These statutes, in this respect, seem merely to declare the principles of American common law, which were established without recourse to legislative action.

In the case of McDonald v. Mallory, 77 N. Y. 546, an employé of a vessel trading between the City of New York and the City of Galveston, Texas, was injured. The defendants were citizens and residents of the State of New York and the steamer was registered as belonging to the Port of New York. The plaintiff also was a citizen of the State of New York. The accident occurred while the ship was at sea, outside the bar and harbor of Galveston, Texas. The employé was killed. The action was brought by the administrator of his estate. The question before the court was, whether, under the statute of the State of New York which gave a right of action for causing death by wrongful act or neglect, the action could be maintained for thus causing a death on the high seas on board of a vessel from and registered in the Port of New York. The court held that under the doctrine of the case of Crapo v. Kelly, 16 Wall. 610, civil rights of action for matters occurring at sea on board of a vessel belonging to one of the States of the Union must depend upon the laws of that State, unless they arose out of some matter over which jurisdiction has been vested in and exercised by the government of the United States, or over which the State had transferred its rights of sovereignty to the United States, and that to this extent the vessel must be regarded as part of the territory of the State. The action, therefore, was sustained, and judgment rendered for the plaintiff.

The New Jersey case of Deeny v. Wright & Cobb Lighterage Co., 36 N. J. Law J., 121, to which reference has already been made, might, perhaps, have been decided on the doctrine announced in McDonald v. Mallory, and Crapo v. Kelly, cited above, inasmuch as the accident happened on a

Extra-territorial effect of compensation statutes

vessel hailing from a New Jersey port. That the court in the Deeny case had this principle in mind appears from the statement by the court that:

"The law of New York, the Admiralty law or the Act of New Jersey applies.' Vide supra.

But the court seems to have gone further and to have held that the relation between the employer and the employé was contractual as to the right to compensation and therefore it would not matter whether the accident happened on a vessel in a New York port or on the streets of New York City.

We have long been familiar with the doctrine in relation to causes of action for death, when the action is brought in a State other than that in which the death was caused, that the action must be based on the law of the State where the accident happened. The common-law rule was that no action be sustained for injuries causing death. This rule was changed by statute, in a number of the States. The doctrine was established early that where an action was brought in one State for injuries causing death in another State, that it could not be maintained, except by proof that the laws of the State in which the accident happened permitted a recovery for injuries causing death. It was not sufficient that the laws of the State where the action was brought permitted a recovery of damages in such a case. Whitford v. Panama R. R. Co., 23 N. Y. 465; Mackay v. Central R. Co., 4 Fed. 617; The Lamington, 87 Fed. 752; Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48; Stallknecht v. Pennsylvania R. R. Co., 13 Hun, 451; Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28; 42 Supp. 171; Gurney v. Grand Trunk Ry. Co., 13 Supp. 645.

Later, when employers' liability laws were passed, it was held generally that the laws of the State where the accident happened, in so far as such laws contravened the common law, at any rate, governed the cause, and not the laws of the State where the action was brought. Voshefskey v. Hillside

Extra-territorial effect of compensation statutes

Coal & Iron Co., 21 App. Div. 168; 47 Supp. 386; Payne v. N. Y. Susquehanna & W. R. Co., 201 N. Y. 436; Howlan v. N. Y. & N. J. Telephone Co., 131 App. Div. 443; 115 Supp. 316; Ziemer v. Crucible Steel Co., 99 App. Div. 169; 90 Supp. 962; Johnson v. Phoenix Bridge Co., 133 App. Div. 807; 118 Supp. 88.

In the Voshefskey case the court quoted from Story on Conflict of Laws (7th Ed.), § 29, in which that author refers to three axioms of Huberus, as follows:

"The first is, that the laws of every Empire have force only within the limits of its own government, and bind all who are subjects thereof, but not beyond those limits. The second is, that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof. The third is, that the rulers of every Empire from comity admit that the laws of every people in force within its own limits ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments, or of their citizens."

The Federal Supreme Court has held that the State Courts may enforce causes of action arising under the Federal Employers' Liability Act. Second Employers' Liability Cases, 223 U. S. 1.

It must be conceded that the basis of recovery under compensation acts is somewhat different from that which underlies the old employers' liability acts, or the enabling statutes permitting damages to be recovered in death cases. The older statutes regulated actions for torts. Workmen's compensation statutes usually, although not universally by any means, have been understood to create contractual relations between employers and employés. In other words, there is, at least, an implied contract that the employer will pay compensation to the employé for injuries, whether or not there is any negligence or other wrongful act on the part of

Extra-territorial effect of compensation statutes

the employer. This is exemplified very clearly in the case of employés who are injured while entirely away from the premises of their employers, although remaining in the State of the residence of their employers. Thus where a driver of a horse attached to a wagon is injured by reason of the vehicle being hit by a street car, the master must pay compensation for the injuries, even though they were due to the wrongful act of a third person, providing only that the injury arose out of and in the course of the employment. Recovery of compensation in such a case must depend either on the force of the statute alone, or upon an implied contract between an employer and the employé. There is absolutely no element of tort or wrong of any kind, so far as the employer is concerned. In those States where compulsory acts are in force, it may, perhaps, be said that there is no contract between the employer and the employé, but that a specific duty is imposed upon the employer by force of the statute. In those States where elective laws are in force it would appear that the right to compensation depends upon an implied contract between the employer and the employé.

The very first of the elective compensation statutes, that of New Jersey, provides in the initial section of the compensation part of the law:

"When employer and employé shall by agreement, either express or implied, as hereinafter provided, accept the provisions of Section II of this Act,” etc.

The very foundation of the compensation principle is based on contract in the New Jersey statute, and, as we have already seen 1 it has been so held by the courts of New Jersey so far as they have considered the matter.

1

Section 78 of the Arizona Workmen's Compensation Law provides that:

"The employer and the workman shall alike be bound by and shall have each and every benefit and right 1 See ante, page 39.

Extra-territorial effect of compensation statutes

given in this Chapter the same as if a mutual contract to that effect were entered into between the employer and the workman at any time before the happening of any accident. It shall be lawful, however, for the employer and workman to disaffirm an employment under the provisions of this Chapter by written contract between them or by written notice by one to and served upon the other to that effect before the day of the accident.' The Connecticut Act provides, in § 1 of Part B that:

"The acceptance of Part B of this Act by employers and employés shall be understood to include the mutual renunciation and waiver of all rights and claims arising out of injuries sustained in the course of employment,"

etc.

It is provided in § 9 of Part 2, of the Minnesota Act that: "If both employer and employé, shall, by agreement express or implied, or otherwise, as herein provided, become subject to Part 2 of this Act," etc.

Section 10 of Part II of the Nebraska Act provides:

"When employer and employé shall by agreement, express or implied, or otherwise as hereinafter provided, accept the provisions of Part II of this Act," etc. Section 1 (c) 4 of the Nevada Act provides:

"Where the employer and employé have not given notice of an election to reject the terms of this Act, every contract of hire express or implied, shall be construed as an implied agreement between them and a part of the contract on the part of the employer to provide, secure and pay, and on the part of the employé to accept compensation," etc.

Section 1 (c) 4 of the Iowa Act provides:

"Where the employer and employé have not given notice of an election to reject the terms of this Act,