WHAT ARE WE GOING TO DO ABOUT IT?

The existing chaotic condition in relation to conflicts between State and Federal jurisdictions over injuries sustained in transportation, whether by water or rail, is intolerable. What is the remedy?

An article in the July REVIEW of the United States Bureau of Labor Statistics suggests the following possible solutions of the problem:

1. An amendment to the Constitution of the United States giving Congress jurisdiction over intrastate as well as interstate commerce, preparatory, it may be inferred, to enacting a comprehensive Federal compensation law covering all railroad employees.

2. The repeal of the employers' liability law of 1908, 1910, relegating the whole problem, so far as the railroads are concerned, to the States.

3. The enactment of a Federal compensation law to be effective only in States not having such a law of standard type.

The first remedy suggested might require a generation for its accomplishment; the second would leave the railroad men in the backward States in worse plight than they are at present; the third has more to recommend it, but, for reasons already explained, Congress has not been minded to pass any compensation law at all in relation to interstate commerce.

Mr. Justice Brandeis, in his dissenting opinion in one of the Winfield cases, suggested that, "It would obviously have been possible for Congress to provide in terms that wherever such injuries or death result from the railroad's negligence, the remedy should be sought by action for damages; and whenever injury or death results from causes other than the railroad's negligence, compensation may be sought under the workmen's compensation laws of the States."

While this solution would doubtless be acceptable to the railroad employees, the railroad companies would oppose such a measure, notwithstanding the fact that in Great Britain every injured workman may take his compensation or sue for damages as he may elect, and notwithstanding the further fact that, whichever remedy the injured employee elects, he almost uniformly secures about what the compensation statute would have given him. Juries, knowing no other scale by which to measure damages, choose the one furnished by the compensation law with which they are familiar.

Another method has been suggested to me: Let Congress, if it will, enact a compensation law covering interstate injuries and then confer upon industrial accident boards and commissions of the several States the administration of the act. If this can not be done directly the United States district courts could be authorized to refer all such cases to such boards or commissions for determination of the facts,

unless a jury were demanded, as such courts now refer such issues to special commissions or referees. Then, when a case comes before such commission, if the facts prove the injury to have been suffered in interstate commerce apply the Federal law, if in intrastate then apply the State compensation law. The suggestion is not without persuasive force.

WHAT ABOUT THE CONFLICT IN ADMIRALTY JURISDICTION?

If

The remedy that does not resolve this conflict upon water as well as upon railroad will prove but half a remedy. What about that? The writer in the MONTHLY REVIEW, above referred to, affirms that, "Only Congress can legislate as to injuries on high seas and navigable waters of the country." It has been as stoutly affirmed that Congress itself can neither add to nor take away from the jurisdiction of the United States district courts over admiralty cases. both of these propositions be true, and it is also true that admiralty jurisdiction does not extend to injuries happening upon the docks, then the conflict of jurisdiction between State and Federal authority over injuries happening in commerce by water is even more hopeless of remedy than by railroad, for no Webb-Kenyon statute has been enacted and judicially upheld which can divest a maritime injury of its admiralty jurisdiction even when it happens in a State having an adequate compensation law.

There are two sources of maritime law, the statutes of Congress and the general, judge-made, law maritime. Congress has enacted no employers' liability law covering injuries suffered in the business of transportation by water, and the general law maritime, although far more liberal toward injured men than the old common-law liability doctrine, allows indemnity for injuries only where negligence can be established and none at all in cases where the injuries result in death. Congress can enact a compensation law covering all maritime injuries, and the courts may hold that dock and dry-dock injuries are maritime, but if such a law were administered by the United States district courts the cost of it would consume the benefits and hoped-for relief would not result.

Suppose that one of the five justices who voted for the Jensen decision had voted the other way what would have been the status of those engaged in commerce by water?

That decision committed the court to two doctrines:

1. That the procedure followed by the Industrial Commission of New York did not constitute a common-law remedy within the meaning of section 9 of the act of 1789, and

2. That the compensation law of New York is, in substance, in contravention of the general body of admiralty law.

If one other justice had voted with the dissenting four the procedures of industrial accident boards and commissions would have constituted common-law remedies and, in pursuance of the act of 1789, would have been "saved to suitors," and it would also have been held that such compensation laws were not in contravention of the general maritime law which itself would have been made subordinate to the common-law remedy.

Under such a decision the shipping interests would speedily place themselves under the protection of the compensation laws of the States having such laws and all would soon be well with the larger share of men who toil in commerce by water. So important is this decision that I should like to see the issue go back to the court from the dock side of it and shall do my best to see that such a case gets there. Our commission proposes to assume jurisdiction over accidents happening on the docks.

A PRACTICAL SOLUTION SOUGHT.

A Federal compensation law governing transportation by railroad is not, in my opinion, practicable, because inelastic, not readily susceptible to amendment, can cover interstate injuries only, would attempt to deal with what is essentially a State problem, and, anyhow, can not be enacted without great difficulty.

Concerted pressure should, in my judgment, be brought upon Congress by all compensation States to relinquish the whole subject of injuries sustained in interstate commerce by railroad in States having adequate compensation laws and fixing a standard of adequacy therefor, retaining the employers' liability law in full force and effect in States falling below such a standard or having none at all. Such a measure could probably be put through Congress at this time.

With reference to commerce by water, it may be found advisable not to attempt Federal legislation at this time, but to bring new and more fully argued cases before the Supreme Court of the United States. Meantime, push along the California idea of getting seafaring employers and their employees to accept the compensation acts of the several maritime States, supplementing the acceptance with a waiver of the right to sue in admiralty where a basis of negligence might be laid. There is no statute prohibiting contracting out from under admiralty jurisdiction and there is every reason in the world why men who toil in shipping should wish to contract out from a law that does not afford them protection and under a law that does. Such a contract would bind all except the dependents of deceased employees and they would have nothing to sue for anyway except in States that have given a right of action in death cases. The general maritime law gives no such right nor does any Federal statute.

A TENTATIVE STANDARD.

I have spoken of a standard of adequacy to be imposed by the Federal Government as a condition precedent to relinquishing its authority over injuries happening in interstate commerce in States having compensation laws conferring equalized benefits approximating to the standard imposed.

At a venture I took the statute affording "compensation for injuries to civil employees of the United States," approved September 7, 1916, and find that it affords the highest benefits of any compensation statute in the United States. If this were taken as the standard the law of no State would be adequate. The compensation laws of New York and Ohio would fall about 10 per cent lower. The compensation laws of California, West Virginia, and Wisconsin would fall about 20 per cent lower, Illinois would be 30 per cent lower, and Maryland, Nebraska, and Oklahoma from 30 to 40 per cent lower. The compensation afforded by the laws of Connecticut, Indiana, Iowa, Louisiana, Michigan, Minnesota, Montana, New Jersey, and Rhode Island would be between 40 and 50 per cent lower, and those of Vermont and Colorado would be more than 50 per cent lower. I did not continue the investigation further.

In my judgment, those States affording compensation in excess of 30 per cent lower than the Federal compensation act above designated could reasonably be held to fall below the standard of adequacy. These figures were all computed according to the differentials employed by insurance actuaries in determining the relative benefits conferred by the several States as compared with the Massachusetts act of 1911. The rule is applied by all of the insurance carriers of the United States in determining rates in the several States and, I think, is accurate.

PREVAILING HOURS OF LABOR IN THE UNITED STATES.

A presentation is here made of the prevailing hours of labor in the United States. The primary purpose of this article is to show the extent of the 8-hour day. The three sources of information available covering the country are: The Abstract of the Census of Manufactures, 1914, published by the United States Census Office; Bulletin 214 of the United States Bureau of Labor Statistics relating to union. scale of wages and hours of labor; and clippings from labor journals and newspapers.

The sources of data have not been exhausted. Good material is published by several States, but lack of space prevents the inclusion of this material in this article.

UNITED STATES CENSUS FIGURES, 1914 AND 1909.

The following census figures apply only to the manufacturing industries and do not cover agriculture, building construction, mining, domestic and personal service, etc.

No attempt was made at the censuses of 1914 or 1909 to ascertain exactly the number of employees in manufacturing industries working a given number of hours per week. The schedule, however, contained an inquiry calling for the number of hours normally worked by wage earners, the instructions being to enter under this heading the prevailing practice followed during the year in each establishment. Occasional variations in hours in an establishment from one period to another were necessarily disregarded. Moreover, no attention was or could be given to the fact that a limited number of employees might have hours differing from those of the majority.

In the tables the average number of wage earners employed during the year in each establishment is classified as a total according to the hours prevailing in that establishment, even though some employees worked a greater or a smaller number of hours. In most establishments, however, all or practically all the employees work the same number of hours, so that the figure for a given group does show substantially the number customarily working the specified number of hours per week.

The data as to prevailing hours of labor in 1914 and 1909 for the United States as a whole are summarized in the following table. Statistics of this character are not available for prior censuses.